Dismissed

R.Pugazhenthi, v. The Inspector General of

Madras HC19 Jun 2019WP/6903/2018

Case brief

AI extract

What is this about?

This High Court Petitioner sought a writ mandamus to direct respondents to cancel a registered Sale Deed. The Court held that registering authorities cannot cancel registered documents and that aggrieved parties must file suits in Civil Court under the Specific Relief Act. Writ dismissed with no view on merits expressed.

What did the court decide?

Writ petition dismissed; the Petitioner is directed to seek cancellation of the Sale Deed by filing a suit in the Civil Court.

R.Pugazhenthi, Vs The Inspector General of — Property and Title | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :19.06.2019

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CORAM

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THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU W.P. No. 6903 of 2018

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R. Pugazhenthi ... Petitioner

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-vs-

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The Inspector General of Registration, No. 100, Santhome High Road, Chennai - 600 028.

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The District Registrar, Tindivanam - 604 001.

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The Sub Registrar, Sathiyamangalam, Tiruvannamalai Road, Gingee Taluk,

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Villupuram District - 604 153.

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R. Devi

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... Respondents

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Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the First to Third Respondents to consider and pass order on the representation of the Petitioner dated 27.07.2017 with regard to cancel the Sale Deed dated 13.03.2017 Document No. 673/17 as the same may be entered in the Encumbrance Certificate by conducting enquiry.

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For Petitioner : M/s. V. Poornimadevi

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For Respondents: Mr. T.M. Pappiah, Special Government Pleader (for R1 to R3)

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O R D E R

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Heard M/s. V. Poornimadevi, Learned Counsel for the Petitioner and Mr. T.M. Pappiah, Learned Special Government Pleader appearing on behalf of the First to Third Respondents and perused the materials placed on record, apart from the pleadings of the parties.

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https://hcservices.ecourts.gov.in/hcservices/

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The Petitioner made a representation dated 27.07.2017 to the Second Respondent claiming that the Sale Deed dated 13.07.2017 executed by one R. Kasthuri in favour of the Fourth Respondent, which had been registered as Document No. 673 of 2017 by the Third Respondent, had to be cancelled as that property belonged to him. The Petitioner had placed reliance on the Circular No. 67/C1/2011 dated 03.11.2011 issued by the First Respondent. The Second Respondent by order Na. Ka. No. 2873/Aa1/2017-1 dated 13.11.2017 informed the Petitioner that the Circular No. 67/C1/2011 dated 03.11.2011 issued by the First Respondent, relied by the Petitioner, has been subsequently withdrawn by the First Respondent by another Circular

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No. 41530/U1/2017 dated 20.10.2017 and the Petitioner was informed to approach the Civil Court for necessary relief in that regard. Despite having received the aforesaid reply to his representation dated 27.07.2017, the Petitioner has filed this Writ Petition seeking a direction to the First to Third Respondents to consider and pass orders on that representation to cancel the Sale Deed executed by the Fourth Respondent and enter the same in the Encumbrance Certificate.

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Having regard to the aforesaid relief sought by the Petitioner in the representation dated 27.07.2017 for disposal of which direction is claimed, the question that arises for examination is whether the First to Third Respondents are empowered by any law to cancel registration of documents.

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In this regard, reference may be made to the decision of the Hon'ble Supreme Court of India in Satya Pal Anand -vs- State of Madhya Pradesh [(2016) 10 SCC 767], in which it has been held as follows:-

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"40. ....At the same time, once the document is registered, it is not open to the Registering Officer to cancel that registration even if his attention is invited to some irregularity committed during the registration of the document. The aggrieved party can challenged the registration and validity of the document before the Civil Court...."

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The Full Bench of this Court in M/s. Latif Estate Line India Ltd. -vs- Hadeeja Ammal [(2011) 2 CTC 1 (FB)], has held that there is no provision in the Transfer of Property Act, 1882, or in the Registration Act, 1908, which deals with the cancellation of deed of sale and that the provision relating to cancellation of document is provided in Section 31 of the Specific Relief Act, 1963, which reads as follows:-

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"31. When cancellation may be ordered:—

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(1) Any person against whom a written instrument is

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https://hcservices.ecourts.gov.in/hcservices/

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void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

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(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."

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In the aforesaid decision, it has been held that three conditions are required for exercise of jurisdiction to cancel an instrument, which are the following:-

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"(1) An instrument is avoidable against the plaintiff;

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(2) The plaintiff may reasonably apprehend serious injury by the instrument being left or outstanding; and

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(3) In the circumstances of the case, the Court considers it proper to grant this relief of preventive justice."

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The earlier Full Bench of this Court in Muppudathi Pillai -vs- Krishnaswami Pillai (AIR 1960 Madras 1) while considering Section 39 of the Specific Relief Act, 1877 (corresponding to Section 31 of the Specific Relief Act, 1963), has held as follows:-

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"12. The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same

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https://hcservices.ecourts.gov.in/hcservices/

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as in quia timet actions."

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On a conspectus of the aforesaid binding decisions viz-a-viz statutory provisions, the following legal position would emerge:(i) it is not open to the Registering Authority to cancel the registration of a document which has already taken place, even if there is some irregularity committed during the registration of the document;

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(ii) the aggrieved party has to challenge the validity and registration of the document before the jurisdictional Civil Court invoking Section 31 of the Specific Relief Act, 1963; and

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(iii) if the jurisdictional Civil Court finds in such suit instituted that the registered instrument is void, it shall send a copy of that decree to the Registering Authority, who shall note on the copy of the instrument contained in its books the fact of its cancellation.

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In this context, reference may be made to the dictum laid down by the Hon'ble Supreme Court of India in Director of Settlements, A.P. -vs- M.R. Apparao [(2002) 4 SCC 638], in which it has been held as follows:-

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"17. ....One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. “Mandamus” means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singhv. State of U.P. [AIR

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https://hcservices.ecourts.gov.in/hcservices/

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1962 SC 1183] ). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law...."

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As the Petitioner has not established any legal right to require the First to Third Respondents to dispose his representation dated 27.07.2017, it would obviously mean that the relief sought by the Petitioner in the Writ Petition could not be granted and that his remedy for the same is elsewhere as set out supra.

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Accordingly, the Writ Petition is dismissed. It is made clear that no view has been expressed by this Court on the correctness or entitlement on the merits of the claim made by the Petitioner. No costs.

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Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
vjt
To
1. The Inspector General of Registration,
No. 100, Santhome High Road,
Chennai - 600 028.
2. The District Registrar,
Tindivanam - 604 001.
3. The Sub Registrar,
Sathiyamangalam,
Tiruvannamalai Road,
Gingee Taluk,
Villupuram District - 604 153.
+1cc to M/s.T.S.Gopalan & Co, Advocate sr.50235
+1cc to Government Pleader sr.51237
W.P. No. 6903 of 2018
kj(co)
nr 27/09/2019

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https://hcservices.ecourts.gov.in/hcservices/

R.Pugazhenthi, v. The Inspector General of

Case brief

What is this about?

What did the court decide?

R.Pugazhenthi, v. The Inspector General of

Case brief

What is this about?

What did the court decide?

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