Dismissed

P.a.Hamsa v. the Dist. Registrar General

Kerala HC14 Mar 2011WP(C)/9342/2008

Case brief

AI extract

What is this about?

The Court held that a unilateral cancellation deed by a vendor cancelling a registered sale deed is not registrable under the Kerala Stamp Act, as it constitutes an attempted re-transfer of property without the vendee's consent. The Writ Petition challenging the Registrar's order allowing registration was dismissed, but the Court directed the removal of the wrongly registered cancellation entries.

What did the court decide?

Cancellation of the cancellation deeds registered based on the interim order and direction to strike them off from encumbrance certificates.

P.a.Hamsa Vs the Dist. Registrar General — Kerala HC (2011) — LawSathi Research

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT :

¶3

THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932

¶4

WP(C).No. 9342 of 2008(K)

¶5

--------------------------------------

¶6

PETITIONER(S): ------------------------

¶7

P.A.HAMSA, S/O.ABDULLA HAJI RESIDING IN CRISCENT HOUSE, NADAKKAVU, CALICUT, 673 011.

¶8

BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR

¶9

RESPONDENT(S):

¶10

---------------------------

¶11

1. THE DISTRICT REGISTRAR GENERAL NEAR HEAD POST OFFICE, KOZHIKODE-673 001.

¶12

2. SUB REGISTRAR, KOZHIKODE.

¶13

*** ADDL.R3 IS IMPLEADED**

¶14

*** ADDL.R3: B.M.FAROOK,S/O.B.M.AHMED BHAVA, RESIDENCE NO.9, FLAT NO.1 B, LUCILLE COURT, BERLIE STREET, LANGFORD TOWN, BANGALORE-560 025.**

¶15

*** IS IMPLEADED AS PER ORDER DATED 13/8/08 IN I.A.NO.9694/08.**

¶16

R1 & R2 BY GOVERNMENT PLEADER SMT.NISHA BOSE ADDL.R3 BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADV. SRI.M.SASINDRAN

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/8/2010, THE COURT ON 14/03/2011 DELIVERED THE FOLLOWING:

sts

2/-

-2-

WP(C)NO.9342/2008

¶22

APPENDIX

¶23

PETITIONER'S EXHIBITS:

¶24

P1 COPY OF THE CANCELLATION DEED BY INDUS EDUCATIONAL ACADEMY PRIVATE LIMITED 24/12/2007.

¶25

P2 COPY OF THE CANCELLATION DEED DATED BY MR.P.A.HAMSA 24/12/2007.

¶26

P3 COPY OF THE ORDER NO.GL.421 OF 2008 DATED 2/2/2008.

¶27

P4 COPY OF THE ORDER NO.GL.420 OF 2008 DATED 2/2/2008

¶28

P5 COPY OF THE OBJECTION DATED 14/2/2008.

¶29

P6 COPY OF THE OBJECTION DATED 14/2/2008.

¶30

P7 COPY OF THE ORDER NO.421 OF 2008 DATED 3/3/2008.

¶31

P8 COPY OF THE ORDER NO.420 OF 2008 DATED 3/3/2008.

¶32

RESPONDENT'S EXHIBIT & ANNEXURE'S

¶33

R3(A) COPY OF THE SALE DEED DATED 31/8/2007 IN RELATION TO 20.0262 ACRES OF LAND.

¶34

R3(B) COPY OF THE SALE DEED DATED 31/8/2007 IN RELATION TO 1 ACRE 15 CENTS OF LAND.

¶35

ANNEXURE R2(A) COPY OF THE DOCUMENT NO.1028/2007 EXECUTED BY THE PETITIONER.

¶36

ANNEXURE R2(B) COPY OF THE DOCUMENT NO.1029/2007 EXECUTED BY THE PETITIONER.

/TRUE COPY/

P.A.TO.JUDGE

sts

K.T.SANKARAN, J.

¶41

W.P(C).No.9342 OF 2008

¶42

Dated this the 14th day of March, 2011

¶43

JUDGMENT

¶44

An extent of 20.0262 Acres of land

¶45

was sold by Indus Educational Academy
Private Limited represented by its

¶46

ChairmanandManagingDirector,
P.A.Hamza in favour of Fortune Five
Minerals Exports Private Limited,
represented by its Managing Director
B.M.Farookh, as per Ext.R3(a) registered
sale deed dated 31.8.2007. Another
extent of 1.15 acres of land was sold by
P.A.Hamza (petitioner) in favour of
Fortune Five Minerals Exports Private
Limited represented by its Managing
Director B.M.Farookh, as per Ext.R3(b)
registered document dated 31.8.2007. The

¶47

W.P(C).No.9342 OF 2008 2

¶48

consideration for Ext.R3(a) document is
Rupees 1.50 Crores while that for Ext.R3
(b) is Rupees 5,40,000/-. Indus
Educational Academy Private Limited
represented by its Chairman and Managing
Director P.A.Hamza sought to register a
cancellationdeed(Ext.P1)dated
24.12.2007 to cancel Ext.R3(a) sale deed.
The petitioner, P.A.Hamza, executed
anothercancellationdeeddated
24.12.2007 (Ext.P2) cancelling Ext.R3(b)
sale deed and he sought to register the
same. The Sub Registrar before whom the
cancellation deeds were presented for
registration impounded the documents and
sent the same to the District Registrar
(General), Kozhikode under Sections 33(1)
and 37(2) of the Kerala Stamp Act. The
District Registrar issued Exts.P3 and P4

¶49

W.P(C).No.9342 OF 2008 3

¶50

notices dated 2.2.2008 to the executants
of the cancellation deeds stating that

¶51

stamp duty at 10% computed on the
consideration shown in the sale deeds
should be paid under Article 21 of the
Kerala Stamp Act along with penalty at 10
times to enable the registration of the
cancellation deeds. The petitioner sent
Exts.P5 and P6 objections to Exts.P3 and
P4 notices. He contended that no stamp
duty is payable under Article 21 of the
Kerala Stamp Act.

¶52

2. The District Registrar passed

¶53

Exts.P7 and P8 orders dated 3.3.2008
holding that the cancellation deed of a
sale deed would be a conveyance and
therefore, stamp duty is payable under
Article 21 of the Kerala Stamp Act.

¶54

W.P(C).No.9342 OF 2008 4

¶55

Accordingly, the District Registrar
(General) directed payment of stamp duty
@ 10% on the consideration shown in the
respective sale deeds along with penalty
of Rs.500/- each, within a period of 15
days for registering the cancellation
deeds. The Sub Registrar was authorised
to receive the stamp duty and penalty.
It was also mentioned in Exts.P7 and P8
that if the stamp duty and penalty are
not paid, steps would be taken to realise
the said amounts.

¶56

3. Exts.P7 and P8 are under challenge

¶57

in this Writ Petition.

¶58

4. The reliefs prayed for by the

¶59

petitioner are the following:

¶60

i) By the issuance of a
writ of certiorari or any

¶61

W.P(C).No.9342 OF 2008 5

¶62

other appropriate writ or
order set aside Exts.P7 and P8
orders

¶63

ii) direct respondents 1
and2toeffectdue
registrations of Exts.P1 and
P2cancellationdeed
Nos.P6/2007andP7/2007
mentioned in Exts.P7 and P8
orders

¶64

iii) declare that the
order No.DDs No.19664/91 LR(A)
3 dated 9.7.1992 of Land
RevenueCommissioneris
inapplicable to the instant
case as the sale deeds were
executed without receiving
consideration which fact is
specifically stated in Exts.P1
and P2 cancellation deeds and

¶65

iv) Pass any other order
or direction which this
Hon'ble Court deems fit and
necessary in the circumstances
of the case.

¶66

5. Relief No.(iii) relates to an
order dated 9.7.1992 passed by the Land
Revenue Commissioner holding thus:

¶67

“There is no provision in
the Kerala Stamp Act to cancel
adeedofconveyance.

¶68

W.P(C).No.9342 OF 2008 6

¶69

Therefore, the Board of
Revenue agrees with the views
of the Inspector General of
Registration and holds that
theimpoundeddocument
No.P6/89 of Sub Registry
Office,Ernakulamisa
conveyance deed falling under
Article 22 of the schedule to
the Kerala Stamp Act for the
purpose of stamp duty”.

¶70

6. Copy of the order dated 9.7.1992

¶71

passed by the Land Revenue Commissioner

¶72

was made available by the learned
Government Pleader. That order relates to
a document which was impounded by the Sub
Registrar's Office, Ernakulam. The said
order was referred to in Exts.P7 and P8.

¶73

7. Sri.A.P.Chandrasekharan, learned

¶74

senior counsel appearing for the
petitioner submitted that Article 15 of
the Kerala Stamp Act will apply in the
case and Article 21 thereof has no

¶75

W.P(C).No.9342 OF 2008 7

¶76

application at all. Articles 15 and 21

¶77

read as follows:

¶78

15 Cancellation-	Two hundred
Instrument of	and fifty
(including any	rupees
instrument by which
any instrument
previously executed
is cancelled), if
attested and not
otherwise provided
for:

¶79

21 Conveyance [as defined by Section 2 (d), other than a conveyance specified in No.22, not being a transfer charged or exempted under No.55]

¶80

Two rupees
for every
Rs.100 or
part thereof, of the fair
value of the
property or the amount
or value of the considerati
on for such
conveyance, whichever is higher.

¶81

W.P(C).No.9342 OF 2008 8

¶82

8. Sri.T.P.Kelu Nambiar, Senior

¶83

Advocate appearing for the third
respondent raised a preliminary objection
and submitted that against that impugned
order, a suit will lie under Section 77
of the Registration Act. The Senior
counsel submitted that therefore, the
Writ Petition is not maintainable.

¶84

9. When the Writ Petition was filed,

¶85

only the District Registrar (General) and

¶86

the Sub Registrar, Kozhikode were made as
respondents. The interim relief prayed

¶87

for in the Writ Petition is to restrain
the respondents from initiating any
proceedings against the petitioner in
pursuance of Exts.P7 and P8 orders.
Later, the petitioner filed I.A.No.4378

¶88

W.P(C).No.9342 OF 2008 9

¶89

of 2008 praying for an interim order
directing the respondents to register the
cancellation deeds subject to the final
decision in the Writ Petition. A learned
Single Judge passed an order dated

¶90

8.4.2008 in I.A.No.4378 of 2008, the
operative portion of which reads as
follows:

¶91

“Therefore, pending the
Writ Petition there will be a
stay of operation of Exts.P7
and P8 for two months. The Sub
Registrar is directed to
register the documents Exts.P1
and P2 subject to the final
decision in the Writ Petition.
The petitioner is directed to
take steps to implead the
vendee Sri.B.M.Farookh.”

¶92

10. As directed, the petitioner filed

¶93

I.A.No.9694of2008toimplead

¶94

B.M.Farookh as the additional third

¶95

W.P(C).No.9342 OF 2008 10

¶96

respondent. It is submitted that as per

¶97

the interim order, the cancellation deeds
were registered by the Sub Registrar.

¶98

11. The preliminary objection raised
by Sri.T.P.Kelu Nambiar,Senior Advocate,
to my mind, is not sustainable. Sub
Section 1 of Section 71 of the
Registration Act, 1908 provides that
every Sub-Registrar refusing to register
a document, except on the ground that the
property to which it relates is not
situate within his sub-district, shall
make an order of refusal and record his
reasons for such order in his Book No.2,
and endorse the words “registration
refused” on the document; and, on
application made by any person executing
or claiming under the document, shall,

¶99

W.P(C).No.9342 OF 2008 11

¶100

without payment and unnecessary delay,
give him a copy of the reasons so
recorded. Section 71(2) of the
Registration Act states that “no
registering officer shall accept for
registration a document so endorsed
unless and until, under the provisions
hereinafter contained, the document is
directed to be registered.” Section 72
of the Registration Act provides for an
appeal to the Registrar from the orders
oftheSub-Registrarrefusing
registration on ground other than denial
of execution. Section 73 provides for an
application to the Registrar where the
Sub Registrar refuses to register the
document on the ground of denial of
execution. Section 77 of the Registration
Act provides that where the Registrar

¶101

W.P(C).No.9342 OF 2008 12

¶102

refuses to order the document to be
registered, under Section 72 or Section
76, any person claiming under such
document, or his representative, assign
or agent, may, within thirty days after
the making of the order of refusal,
institute in the civil Court, having
jurisdiction, a suit for a decree
directing the document to be registered.

¶103

 12. In the present case, there was
no refusal as such by the Sub Registrar
to register the document. The Sub
Registrar took the view that stamp duty
at 10% of the consideration shown in the
sale deed should be paid for the
cancellation deed. The District
Registrar (General) upheld the view taken
by the Sub Registrar. As there was no

¶104

W.P(C).No.9342 OF 2008 13

¶105

refusal as such to register the document,
I am not inclined to accept the
contention that the remedy of the
petitioner is to file a civil suit under
Section 77 of the Registration Act.

¶106

13. The cancellation deeds, Exts.P1
and P2 are unilateral documents executed
by the sellers under Exts.R3(a) and R3(b)
sale deeds. The purchaser is not a party
to the cancellation deeds. The purchaser
has not put his signature in the
cancellation deeds. The purchaser was not
made known by the seller of the execution
of the cancellation deeds. The reasons
stated for cancellation under the
cancellation deeds are the following:

¶107

W.P(C).No.9342 OF 2008 14

¶108

a) It was mutually agreed to

¶109

between the parties to the
sale deed that the same was
not intended to be acted

¶110

upon.

¶111

b) It was mutually agreed to by the parties to the sale deed that the sale deed would not and need not be acted upon.

¶112

c) The sale deed is only a sham

¶113

document.

¶114

d) The sale deed happened to be executed only on the request

¶115

of the vendee.

¶116

e) It was mutually agreed upon

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W.P(C).No.9342 OF 2008 15

¶118

by the parties to the
agreements for sale that the
purported sale deeds, if at
all would be, operative only
if and when the respective
vendees paying the sale
price in full and purchase
theentireextentof
property covered by all the
threeagreementsand
supplemented one mentioned
in the cancellation deed.

¶119

f) No consideration was paid for
the execution of the sale
deed at any time by the
vendee to the vendor.

¶120

W.P(C).No.9342 OF 2008 16

¶121

g) Title and possession of the
property covered by the sale
deed was not intended to be
transferred, conveyed, or
given by the vendor in
favour of the vendee.

¶122

h) Possession of the property
continues to be with the
vendor.

¶123

14. The question to be considered is
whether Article 15 or 21 of the Kerala
Stamp Act would apply to the cancellation
deeds referred to above. Sale is defined
under Section 54 of the Transfer of
Property Act thus:

¶124

54.”Sale” defined- “Sale”
is a transfer of ownership in

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W.P(C).No.9342 OF 2008 17

¶126

exchange for a price paid or
promised or part-paid and
part-promised.”

¶127

The sale deed takes place on the basis of
a contract between the parties to the
transaction to sell and buy. A price
must be paid or promised or part paid and
part promised to constitute a sale deed.
Without consideration, there could be no
execution of sale deed. By the amendment
of the Registration Act, now it has been
made mandatory that the photographs of
the seller and buyer should be affixed in
the sale deed. A sale deed, which is the
result of a bilateral transaction, cannot
be cancelled by the unilateral act of the
seller. The instrument of cancellation
mentioned in Article 15 of the Kerala
Stamp Act does not include cancellation

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W.P(C).No.9342 OF 2008 18

¶129

deed executed by one of the parties to
the sale deed, cancelling a duly executed
and registered sale deed. Cancellation of
sale deed may take place by the decree of
a competent civil court. In certain
exceptional circumstances, a gift deed
can be cancelled by the executant of the
Gift Deed. Article 15 of the Kerala Stamp
Act deals with such cases of cancellation
where the junction of both the parties is
not required to effect the cancellation
of a duly executed registered document or
where both the parties to the transaction
otherwise could legally cancel a document

¶130

executed by them. The sale being
completeontheexecutionand

¶131

registration of the sale deed, it cannot
be unilaterally cancelled by the seller
thereof. Such a cancellation deed of a

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W.P(C).No.9342 OF 2008 19

¶133

sale deed cannot be registered invoking
Article 15 of the Kerala Stamp Act. Even
if stamp duty is paid under Article 21 of
the Kerala Stamp Act, a duly executed and
registered sale deed cannot be cancelled
unilaterally by the seller. On execution

¶134

of the sale deed, title to the property
passes to the vendee. The vendee cannot

¶135

be divested of his title by the
unilateral act of cancellation of the
sale deed by the vendor. Even on
cancellation of the sale deed, the vendor
would not get title to the property and
only the vendee can confer title to the
vendor. Such conferment amounts to
conveyance. The view taken by the
District Registrar (General) that stamp
duty is payable under Article 21 of the
Kerala Stamp Act, to that extent, may be

¶136

W.P(C).No.9342 OF 2008 20

¶137

correct, but it is not correct to the
extent that the unilateral cancellation
deed of the sale deed executed and
presented for registration by the vendor
can be registered on payment of stamp
duty under Article 21 of the Kerala Stamp
Act.

¶138

15. It is not as if any document
presented for registration should be
compulsorily registered by the Sub
Registrar, on payment of the stamp duty
under the Kerala Stamp Act. A document
which cannot be legally executed at all,
like a unilateral cancellation deed of a
sale deed, cannot be registered even if
the executant thereof is prepared to pay
the stamp duty under Article 21 of the
Kerala Stamp Act. An argument may be put

¶139

W.P(C).No.9342 OF 2008 21

¶140

forward that it is not necessary for the
Sub Registrar to enquire into the
question of validity of a document and
that he is bound to register the document
if proper stamp duty is paid. This
argument is based on a misconception. It
is not the duty of the Sub Registrar to
register every document presented before
him for registration,P unmindful of its
validity and legality. Only if a valid
document is duly executed and presented
for registration, the Sub Registrar is
bound to register the document. Part XII
of the Registration Act containing
Sections 71 to 77 would clearly indicate
that there is no duty cast on the
Registrar to register a document which is
not legally executable and registrable.

¶141

W.P(C).No.9342 OF 2008 22

¶142

16. A learned Single Judge of this
court (Justice S.Siri Jagan), on an
elaborate consideration of the various
provisions of the Indian Contract Act,
Transfer of Property Act, Registration
Act and the Kerala Stamp Act, held in
Pavakkal Noble John and another v. State
of Kerala & others (ILR 2010(3)Kerala

¶143

979)as follows:

¶144

10. I shall now deal with
the duty of the Sub Registrar
in the matter of registration
ofacancellationdeed
unilaterally executed by the
vendor in the light of the
above legal position. Under
Section 7 of the Transfer of
Property Act, 1882, for a
person to become competent to
transferproperty,two
conditionshavetobe
satisfied viz.(1) he has to be
competent to contract and (2)
he must be entitled to
transferable property or he
must be authorised to dispose
of transferable property not
his own. Section 32 of the
RegistrationAct,1908,

¶145

W.P(C).No.9342 OF 2008 23

¶146

details the persons who can
presentdocumentsfor
registration, who shall be
either the person executing
thedocumentorhis
representative or assign or
the agent of such a person
duly authorised by power of
attorney. The provisions of
Rule191havetobe
appreciated in the light of
the above provisions. Sub
clause XII of Rule 191 lays
down that the registering
officercanrefuse
registration for the reason
that the person purporting to
have executed the document is
a minor, an idiot or a
lunatic. This reason relates
to the competency of the
person to contract, which is
the 1st condition laid down in
Section 7 of the Transfer of
Property Act. Sub clause X of
Rule 191 lays down that the
registering officer can refuse
registration for the reason
that he is not satisfied as to
the right of the person
appearing as a representative,
assign or agent so to appear.
This reason relates to sub-
sections (b) and (C) of
Section 32 of the Registration
Act and the latter part of
condition No.2 in Section 7 of
Transfer of Property Act.
Therefore essentially, as far
as transfer of immovable
property is concerned, the
Registration Act and Rules are

¶147

W.P(C).No.9342 OF 2008 24

¶148

framed in terms of the
Transfer of Property Act
itself. Therefore, I am of
opinion that want of capacity
to transfer property as
stipulated in Section 7 of the
Transfer of Property Act,
should also be a reason for
which the Sub Registrar can
refuse registration of a
document relating to transfer
of property. In fact that is
exactly what has been provided
for by sub clause VII of Rule
191, making it competent for
the Sub Registrar to refuse
registration for the reason
that the document is presented
by a person who has no right
to present it. As far as
transfer of property is
concerned under Section 7 of
the Transfer of Property Act,
1882 only a person who is
entitledtotransferable
property is competent to
transfer property. Under
Section 32 of the Registration
Act, 1908, the document shall
be presented by the person
executing the document, if he
is presenting the document
himself. Therefore, if a
person is not entitled to
transferableproperty,he
cannot execute a document in
respect of transfer of the
property and therefore he is
not a person competent to
present such a document for
registration. Under sub clause
VII of Rule 191 of the Rules,

¶149

W.P(C).No.9342 OF 2008 25

¶150

the Sub Registrar can validly
refuse registration of a
document if it is presented by
a person who has no right to
present it. By cancelling a
sale deed executed by him
earlier,thevendoris
actuallyattemptingto
retransfer the property to
himself, which he cannot do,
since he is no longer entitled
to that property as the title
had already passed to the
purchaser on the execution of
the sale deed unless the sale
deed stipulates otherwise and
for becoming entitled to be
competenttoexecutea
document in respect of that
property he has to first get
the earlier sale deed annulled
by a court of law. On reading
of all these provisions
together, I am satisfied that
a registering authority can
refuse registration, if , on a
cursory enquiry, it is clear
that the person purporting to
have executed the cancellation
deed is not the person
entitled to the property as on
the date of execution. This he
can easily do by merely
looking at the document and
thepreviousdocuments
registered in respect of the
property as per the register
available in his office in
respect of the property, which
would show who is the present
owner of the property. Section
35 of the Act indicates that

¶151

W.P(C).No.9342 OF 2008 26

¶152

such an enquiry is not alien
to the powers and duties of
the Sub Registrar. Going by
Section 34 of the Indian
Registration Act and Rule 67
of the Registration Rules
(Kerala), at first blush it
mayappearthatthe
registering officer cannot
enquire into the validity of
the document or the right of
the executing party to execute
the document. But to hold
that under no circumstances
the registering officer shall
enquire into the competency of
the person to execute the
document and he shall blindly
register the document except
for the reasons mentioned in
Rule 191, would lead to very
disastrousandanomalous
results. Take for example a
case where a person presents
for registration a sale deed
executed by him selling the
property comprised of the High
Court or any government
property for that matter; or
an agreement between two
persons whereby one agrees to
kill a third person for
consideration.Isthe
registering officer bound to
register the same? If that is
the position of law, then a
cancellation deed cancelling
any document by any person who
has no relation to the
property also will have to be
registered if the reasons
mentioned in Rule 191 are not

¶153

W.P(C).No.9342 OF 2008 27

¶154

available. That cannot be the
object of the above said
provisions. But that does not
mean that the Sub Registrar
can make a roving enquiry to
decide the validity of the
document or the right of the
executants to execute the
document.Areasonable
interpretationcommensurate
with the object of the Act and
Rules would be that if by
reading the document and
looking at the previous
documentsregisteredin
respect of the property he is
satisfied that the document
cannot be validly executed by
the person purporting to have
executed the same, he has to
refuse to register the same
and act in accordance with
Section 71 of the Act.
Therefore, I am of the opinion
that by refusing to register a
deed of cancellation of a sale
deed, the Sub Registrar is
only performing a duty cast
upon him by the Registration
Act and Rules, notwithstanding
Rule 67 of the Registration
Rules (Kerala) and the same is
in consonance with the object
of the Registration Act and
Rules as elucidated above.

¶155

xxxx xxxx xxxx xxxx xxxx

¶156

16.Theviewthat
cancellation of a sale deed
can be only bilateral, is also

¶157

W.P(C).No.9342 OF 2008 28

¶158

clearfromthenewly
introduced Section 32A of the
Registration Act, which reads
thus:

¶159

*`“32A. Compulsory`* *`affixing`* *`of`*
*`photograph, etc.-`*
*`Every`* *`person`*
*`presenting`* *`any`* *`document at the`*
*`proper`* *`registration-`*
*`office`* *`under`* *`Section 32 shall`*
*`affix`* *`his`*
*`passport`* *`size`*
*`photograph`* *`and`*
*`fingerprints`* *`to`*
*`the document:`*

¶160

*`Provided that`*
*`where`* *`such`*
*`document relates`*
*`to the transfer`* *`of ownership of`* *`immovable`*
*`property,`* *`the`*
*`passport`* *`size`* *`photograph`* *`and`* *`fingerprints`* *`of`* *`each buyer and`*
*`seller of such`*
*`property`* *`mentioned in the`*
*`document`* *`shall`*
*`also be affixed`*
*`to the document.”`*

¶161

If for transfer of
ownershipofimmovable
propertyphotographsand

¶162

W.P(C).No.9342 OF 2008 29

¶163

fingerprints of each buyer and
seller of the property are
mandatory, by the same coin,
cancellation deed of a sale
deed being essentially a re-
transfer of the immovable
property back to the vendor
shouldalsonecessarily
contain the photograph of both
the parties to the sale deed,
without which the cancellation
deedcannotbevalidly
registered. Of course an
argument is raised to the
effect that the said Section
is applicable only when a
person executes a sale deed
for transfer of immovable
property. But the words used
therein are 'where such
document relates to transfer
of ownershipof immovable
property', which is wide
enoughtoincludeall
documents relating to transfer
of immovable property and not
confined to sale deeds for
transferringimmovable
property. A cancellation deed
cancelling a sale deed is
certainly a document relating
to transfer of immovable
property and would come
squarely within the said
proviso. Section 32A has been
incorporatedinthe
Registration Act to prevent
such misuse of the provisions
of the Act and Rules. Non-
compliance with Section 32A is
certainly a very valid reason
for the Sub Registrar to

¶164

W.P(C).No.9342 OF 2008 30

¶165

refuse registration of a
cancellation deed relating to
transferofimmovable
property, as is clear from
Clause VII A of Rule 191. The
Sub Registrar is therefore
duty bound to insist upon the
photographandthumb
impression of both parties to
beincludedinthe
cancellation deed as well, as
mandated by the proviso to
Section32Aofthe
RegistrationActfor
registration of a cancellation
deed of a sale deed and if the
cancellation deed does not
contain the photograph and
thumb impression of both
parties, he is statutorily
bound to refuse registration
of that document. The thumb
impression of a person cannot
be obtained in a document
without his consent and his
photograph cannot be validly
affixed in a document without
his consent. Therefore a
cancellation deed of a sale
deed can be registered only
with the consent of both the
original seller and the buyer
and not unilaterally by the
seller alone. For this reason
also the registration of a
cancellation deed unilaterally
cancelling a sale deed by the
seller, without the consent of
the purchaser, is to be
refused by the Sub Registrar.”

¶166

W.P(C).No.9342 OF 2008 31

¶167

17. I am in respectful agreement with

¶168

the view taken by Justice S.Siri Jagan in
the aforesaid judgment.

¶169

18. Therefore, I hold that the

¶170

cancellation deeds in question cannot be
registered unless the deeds are executed
by the seller and buyer of the sale deeds
in question. Exts.P7 and P8 orders issued

¶171

by the District Registrar (General)
enables the seller to register the
cancellation deeds on payment of the
stamp duty mentioned in the orders and
penalty of Rs.500/- each. It is true
that Exts.P7 and P8 are not challenged
before this court by the third respondent
by filing a Writ Petition. Those orders
were not issued after hearing the buyer

¶172

W.P(C).No.9342 OF 2008 32
under the sale deeds. The buyer is not
bound by Exts.P7 and P8 orders. On
getting notice in the Writ Petition, he
has raised a contention that the
cancellation deeds cannot be registered
even if the seller is prepared to pay the
stamp duty under Article 21 of the Kerala
Stamp Act and the penalty ordered to be
paid. Being the buyer, the third
respondent is entitled to put forward
that contention in defence to the Writ
Petition challenging Exts.P7 and P8
orders. I uphold the contention put
forward by the third respondent in this
regard, in view of the findings rendered
above and in the light of the decision in
ILR 2010(3) Kerala 979.

¶173

19. It is to be noted that the

¶174

W.P(C).No.9342 OF 2008 33

¶175

transferor (seller) in Ext.R3(a) sale

¶176

deed is Indus Educational Academy Private
Limited, a Company incorporated under the
Companies Act. The executant of the
Ext.P1 cancellation deed is also Indus
Educational Academy Private Limited. The
petitioner in the Writ Petition is
P.A.Hamza and not the Company referred to
above. It is submitted that P.A.Hamza is
the Chairman and Managing Director of
IndusEducationalAcademyPrivate
Limited. The said Company is an entity
and the petitioner cannot in his
individual capacity challenge the orders
passed by the District Registrar against
the Company. The buyer under Ext.R3(a)
sale deed is Fortune Five Mineral Exports
Private Limited, a Company incorporated
under the Companies Act. That Company is

¶177

W.P(C).No.9342 OF 2008 34

¶178

not made a party in the Writ Petition. It
is true that B.M.Farookh, the third
respondent, is described as the Managing
Director of Fortune Five Mineral Exports
Private Limited in the sale deed. But
that is not a substitute for non
impleading Fortune Five Mineral Exports
Private Limited as a party respondent in
the Writ Petition.

¶179

20. Originally, the petitioner did
not think it fit to make the purchaser a

¶180

party in the Writ Petition. Only after
this court passed an order to implead
him, the third respondent was made a
party. This conduct of the petitioner in
not making the affected party a party to
the Writ Petition is reprehensible. Even
now, the purchaser, namely, Fortune Five

¶181

W.P(C).No.9342 OF 2008 35

¶182

Mineral Exporters Private Limited is not
made a respondent in the Writ Petition.

¶183

21. It is also disturbing to note

¶184

that the petitioner made an interim
prayer in the Writ Petition for a
direction to the Sub Registrar to
register the cancellation deeds. The
argument advanced appears to be that it
was only a question of payment of stamp
duty that was in dispute and therefore,
that question could be resolved while
disposing of the Writ Petition. In that
premise, an interim order was passed by a
learned Single Judge of this court
directing the Sub Registrar to register
the cancellation deeds. The petitioner
was not justified at all in making a
prayer in the Interlocutory Application

¶185

W.P(C).No.9342 OF 2008 36

¶186

which is also the main prayer in the Writ
Petition.

¶187

22. Now the question remains as to

¶188

what should be done since the
cancellation deeds were registered on the
basis of the interim order passed by this
court. It is trite that an act of court
should prejudice none. The cancellation
deeds were not liable to be registered at
all. However, the cancellation deeds
were registered only on the basis of the
interim order passed by this court. The
error has to be rectified. Therefore, I
direct the Sub Registrar, Kozhikode to
cancel/strike off/revoke the cancellation
deeds referred to above by making
appropriate entries in the relevant
registers. There will be a direction to

¶189

W.P(C).No.9342 OF 2008 37

¶190

the second respondent that under no
circumstances, the cancellation deeds
which happened to be registered in the
circumstances mentioned above, should be

¶191

shown as an encumbrance in the
encumbrance certificate that may be
issued in future in respect of the
properties in question.

¶192

The Writ Petition is, accordingly,
dismissed with costs of Rs.25,000/-
payable to the third respondent.

¶193

K.T.SANKARAN,
JUDGE

¶194

cms

P.a.Hamsa v. the Dist. Registrar General

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P.a.Hamsa v. the Dist. Registrar General

Case brief

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