Allowed

K.Raman v. Inspector General of Registration

Madras HC25 Oct 2021WP/4356/2021

Case brief

AI extract

What is this about?

The High Court of Madras allowed a writ petition declaring a unilateral cancellation deed of a registered settlement deed null and void. The Court held that a Sub-Registrar lacks jurisdiction to register such a deed without notice or due adjudication, directing the removal of the entry from the register.

What did the court decide?

The unilateral cancellation deed registered as Document No.1729/2001 dated 05.07.2001 was set aside, and the 2nd respondent was directed to remove the entries pertaining to the same in the register.

K.Raman Vs Inspector General of Registration — Property and Title | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 25.10.2021

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CORAM

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THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

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W.P.NO.4356 OF 2021

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K.Raman

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 ...Petitioner

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Vs.

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1.Inspector General of Registration, No.100, Santhome High Road, Chennai – 600 028

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2.The Sub Registrar, Office of the Sub Registrar, Vaniyambadi – 635 751 Thirupattur District

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3.The Superintendent of Police, Thirupattur District, District Police Office, Tirupattur – 635 601

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4.State of Tamilnadu Rep. By Inspector of Police, Taluk Police Station, Vaniyambadi – 635 751

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5.K.Selva Nathan

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 ...Respondents

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Writ Petition is filed under Article 226 of Constitution
of India to issue a Writ of Declaration to declare that the
impugned deed of cancellation dated 05.07.2001 registered as
Document No.1729 of 2001 on the file of the 2nd respondent as
null and void and non-est in law and consequently direct the 2nd
respondent to expunge the entry from the register by cancelling
unilateral cancellation Document No.1729/2001 dated 05.07.2001
and restore status quo ante in respect of settlement deed
No.2686/1999 dated 28.09.1999.

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For Petitioner :Mr.B.Ramprasath

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For Respondents : Mr.K.M.D.Muhilan for R1 to R4
Government Advocate

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Mr.R.Ilanchizhian for R5

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

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O R D E R

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The present Writ Petition is filed under Article 226 of
Constitution of India to issue a Writ of Declaration to declare
that the impugned deed of cancellation dated 05.07.2001
registered as Document No.1729 of 2001 on the file of the 2nd
respondent as null and void and non-est in law and consequently,
direct the 2nd respondent to expunge the entry from the register
by cancelling unilateral cancellation Document No.1729/2001
dated 05.07.2001 and restore status quo ante in respect of
Settlement Deed No.2686/1999 dated 28.09.1999.

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2. The case of the petitioner is that the father of the
petitioner, viz., Kuzanthai Gownder was in possession of the
hereditary properties at Vallipattu village, Vaniyambadi Taluk,
Tirupattur District measuring to an extent of 8.95 Acres and had
also purchased another property on his own earning with a
measuring of 1.17 acres nearby to the above said hereditary
properties. The father of the petitioner was left with five
children, two daughters and three sons, in which the petitioner,
5th respondent are inclusive and one Raman. In the year 1974,
the father of the petitioner partitioned the hereditary property
amicably to his male children in the following proportion:-

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(i)Murgesan - 2.20 Acres Dry land and 70 Cents Rice mill
(ii)Selvanathan - 3.40 Acres Wet land

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(iii)Raman - 2.65 Acres Dry Land

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The above said partition of the hereditary properties was duly
accepted by all the family members of petitioner's father
including his two daughters. Thereafter, the settlement deed
was executed on 28.09.1999 and the same was registered vide
Document No.2686/1999 on the file of 2nd respondent herein. The
5th respondent, elder brother of the petitioner in order to usurp
the hereditary right of the petitioner, forced his father to
cancel the Settlement Deed No. 2686/1999, which confers the
independent ownership right to the petitioner. The father of
the petitioner on repeated compulsion of the 5th respondent filed
an application before the 2nd respondent on 05.07.2001 for
cancellation of settlement deed no.2686/1999. The 5th respondent
filed a partition suit in O.S.167 of 2004 and the same was
dismissed on 22.01.2015 with cost of Rs.3,135/- to the 5th
respondent. As against the dismissal order, the 5th respondent
preferred an Appeal in A.S.No.25 of 2015 and the same was also
dismissed on 21.10.2019 and the order dated 22.01.2015 in
O.S.No.167 of 2004 was upheld.

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3. It is also the further case of the petitioner that the
2nd respondent without providing prior mandatory notice to the
petitioner on 05.07.2001 allowed the unilateral cancellation
application by way of registering the same as document no.
1729/2001. The father of the petitioner expired on 09.04.2006
due to illness and his old age and once the property has been

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settled in the name of the petitioner by his father, admittedly,
the unilateral cancellation of the settlement deed filed by his
father without prior notice to the petitioner is illegal and
void. Further, the original settlement deed 2686/1999 was
executed in favour of the petitioner without any specific
covenant and condition and thus the property right conferred in
favour of the petitioner and it cannot be cancelled by the
executor of the original settlement deed and the executor does
not have any right to register the cancellation deed 1729/2001,
in the absence of any specific covenant and condition.

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4. According to the petitioner the land comprised in the
settlement deed 2686/1999 has not been maintained since a long
time and therefore, thorn bushes had sprouted largely in the
said land. Moreover, large number of snakes and venomous germs
are entering in the house of the petitioner regularly, hence it
is most necessary to remove the thorn bushes from the land,
however, the 5th respondent and his family members had obstructed
the same. Subsequently, the petitioner filed a complaint
against the 5th respondent before the Inspector of Police,
Vaniyambadi on 26.09.2019 and to that effect, a case was
registered in Crime No.140 of 2020. Though several months have
been elapsed, the respondent police had not taken any action on
the basis of the complaint, neither the police restrained the
above said accused nor provided adequate protection to the
petitioner to remove the said thorn bushes.

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5. While the matter stood thus, the petitioner approached
the Superintendant of Police, Thirupattur on 27.07.2020 with a
request to direct the respondent police to provide adequate
protection to remove the thorn bushes and the same was duly
transferred to the respondent police for needful action.
However, after receiving the said complaint, the respondent
police denied to provide adequate protection to remove the
bushes from his land because of the cancellation deed
No.1729/2001.

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6. In consequence thereto, the petitioner filed a
W.P.No.13626 of 2020 for issuance of Writ of Declaration to
declare the impugned deed of cancellation dated 05.07.2001
registered as Document No.1729/2001 on the file of 2nd respondent
as null and void and non-est in law. In the said petition, this
Court granted liberty to withdraw the said petition and directed
the petitioner to workout his remedy according to law.
Thereafter, the petitioner approached the 1st and 2nd respondents
by filing rectification petition on 27.10.2020 and 22.12.2020,
but the respondents denied the same and the 1st respondent by an
order dated 08.01.2001 held that he is not the competent
authority to rectify the settlement deed and expunge the entry
and consequently instructed the petitioner to approach the
concerned court, hence the petitioner has come up with this
petition.

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7. The learned counsel for the petitioner, in support of
his contention has relied on the following Orders of this Court:
(i) W.P.No.7725 of 2015 [P.A.G.Kumaran Vs. Inspector
General of Registration] wherein at Paragraph No.16 among other
things, it is held as follows:-

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“16. In view of the fact that the unilateral
cancellation of the settlement deed made by the first
and second respondents is bad, this Court declares that
the said cancellation of document, namely Deed of
Cancellation of Settlement deed, registered as Document
No.3328 of 2014, dated 10.11.2014, is illegal and in
view of the same, the first and second respondents are
directed to remove the entries in the Register and the
subsequent transaction, namely settling the property in
favour of the son of the third respondent, made
pursuant to the unilateral cancellation of settlement
deed, is also null and void....”

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(ii) W.P.No.22386 of 2015 [P.Dinesh Kumar Vs. The
Inspector General of Registration] wherein at Paragraph No.6
among other things, it is held as follows:-

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“....in my considered opinion, whether it falls
within the exception under Section 126 of the Transfer
of the Property Act or not is purely a matter of
evidence. The same has to be adjudicated only before
the Civil Court. The Registrar is not a competent
person to register the unilateral cancellation deed by
deciding the question whether it falls within the
exception under Section 126 of the Transfer of Property
Act, since he is not the competent authority to decide
the disputed question of facts. Further, in my
considered opinion, by executing a registered
settlement deed in favour of petitioners/settlees, the
settlor/3rd respondent herein had lost his right in the
property. Unless the said right is restored by setting
aside the settlement deed executed by the settlor in
favour of the settlees by a competent Court, the Sub-
Registrar is not competent to register the unilateral
cancellation of settlement deed.”

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(iii) Reported in 2014(3) CTC – 113 [D.V.Loganathan Vs.
Sub Registrar, Chennai]

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“The registration of cancellation of settlement
deed is against the public policy as it is not open to
the Sub Registrar to register the cancellation deed
when the settlement deed is unconditional and
irrevocable. The cancellation deed and its
registration, therefore, being without jurisdiction is
liable to be set aside.”

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(iv) Apnan Banu Vs. The Sub Registrar in W.P.No.2897 of
2017 on 04.09.2018, this Court by stating that “In view of the
fact that the unilateral cancellation of settlement deeds are

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impermissible under the Registration Act as well as the legal
principles are settled by the full bench of this Court, this
Court has cancelled the Unilateral cancellation deed.

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(v) In the order [N.Vijayabaskar Vs. Gokul Anand] in
W.P.No.27342/2016, this Court has taken note of the “settled
legal position and quashed a unilateral cancellation of
settlement deed by an order dated 10.10.2018”.

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8. Per contra, by way of filing a detailed counter
affidavit, the learned counsel for the 5th respondent has
submitted that the 5th respondent is the brother of the
petitioner and after the properties were partitioned, all the
three male heirs have become owner of the property. Since the
father of the petitioner as well as the 5th respondent is
illiterate, the petitioner had executed two settlement deeds in
his favour as document no.2686 of 1999 and 2160 of 2000.
Further, the sale deeds were not as per the share allotted
through oral partition and hence the said documents were
cancelled by the father of the petitioner. The said
cancellation was through registered cancellation deeds
no.1729/2001 dated 12.01.2001 and 1730/2001 dated 12.01.2001.

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9. That apart, the learned counsel for the 5th respondent
contends that the petitioner has availed two settlement deeds in
his name and the said two settlement deeds have been cancelled
by the settlor, however, the petitioner is claiming only one
cancellation deed to be revoked through this petition. The
claim of the petitioner is barred by law, as the petitioner has
got the knowledge of the said cancellation before 10 years.
Further, it is admitted by the petitioner in the petition about
the oral partition and further about the suit and it is precise
to state that as the oral partition makes the rights of share to
the parties absolute, what is the necessity for the petitioner
to create a settlement deed in favour of the petitioner and the
settlement deed is against the oral partition as the 30 cents in
S.No.133/1A is under the possession and enjoyment of the 5th
respondent.

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10. That apart, it is represented on behalf of the 5th
respondent that after 19 years from the date of cancellation, 17
years from the date of filing the partition suit and after 12
years from the date of submitting the said documents before the
trial court, the petitioner has come before this Court and right
to claim has been exhausted as it is barred by law. The
petitioner has submitted that the 5th respondent has filed a case
before the Additional District Munsif in O.S.No.167 of 2004 and
never stated that what was the nature of the suit and also what
was the reason for the dismissal.

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11. While concluding, the learned counsel for the 5th
respondent contends that the present petition is devoid of

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merits and the remedies can be claimed only through proper trial
forum and the same is also barred by law.

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12. Heard the learned counsel for the petitioner, learned
Government advocate for the respondents 1 to 4 and the learned
counsel for the 5th respondent and perused the documents placed
on record.

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13. It is to be noted that this Court in the case of
D.V.Loganathan Vs. the Sub-Registrar, Office of the Sub-
Registrar, Pallavaram, Chennai and another reported in 2014(3)
CTC 113 it is observed that the Unilateral cancellation of
settlement deed is without jurisdiction and liable to be set
aside. Further, in the case of Samiappan and Others Vs.
Rajamani reported in CDJ 2014 MHC 5730, the Hon'ble Division
Bench of this Court held that the 'settlement deed cannot be set
at naught unilaterally by one party'. The party, who settled
the property in favour of the petitioner is none other than his
father, who had executed the settlement deed dated 28.09.1999
and the petitioner was put in possession. It is also brought to
the notice of this Court by the petitioner that in the
settlement deed, no power of cancellation was reserved by the
father of the petitioner and however, the father chose to cancel
the documents during the year 2001.

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14. It is pertinent to point out that the Sub Registrar,
who registered the cancellation deed, ought to have issued
notice to the parties under the settlement deed, namely, the
petitioner and concerned parties and without doing so, has
unilaterally registered the documents ignoring the fact that the
settlement deed was acted upon and the cancellation deed was
presented for registration after nearly 2 years after the date
of settlement. This being contrary to the legal position, the
same requires to be interfered with.

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15. Moreover, the Hon'ble Full Bench of this Court [Latif
Estate Line India Ltd., Vs. Hadeeja Ammal] reported in 2011 (2)
CTC 1 has held that unilateral cancellation of a registered sale
deed through a deed of cancellation is of no effect in law. The
conclusion drawn by the Full Bench as recorded in paragraph
nos.58 and 59 are extracted hereunder:

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“58. It can also not be overlooked or ignored
that a unilateral cancellation of a sale deed by
registered instrument at the instance of the vendor
only encourages fraud and is against public policy. But
there are circumstances where a deed of cancellation
presented by both the vendor and the purchaser for
registration has to be accepted by the Registrar if
other mandatory requirements are complied with. Hence,
the vendor by the unilateral execution of the
cancellation deed cannot annul a registered document
duly executed by him as such an act of the vendor is
opposed to public policy.

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59. After giving our anxious consideration on
the questions raised in the instant case, we come to
the following conclusion:-

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(i) A deed of cancellation of a sale
unilaterally executed by the transferor does not
create, assign, limit or extinguish any right, title or
interest in the property and is of no effect. Such a
document does not create any encumbrance in the
property already transferred. Hence such a deed of
cancellation cannot be accepted for registration.

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(ii) Once title to the property is vested in the
transferee by the sale of the property, it cannot be
divested unto the transferor by execution and
registration of a deed of cancellation even with the
consent of the parties. The proper course would be to
re-convey the property by deed of conveyance by the
transferee in favour of the transferor.

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(iii) Where a transfer is effected by way of
sale with the condition that title will pass on payment
of consideration, and such intention is clear from the
recital in the deed, then such instrument or sale can
be cancelled by a deed of cancellation with the consent
of both the parties on the ground of non-payment of
consideration. The reason is that in such a sale deed,
admittedly, the title remained with the transferor.

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(iv) In other cases, a complete and absolute
sale can be cancelled at the instance of the transferor
only by taking recourse to the Civil Court by obtaining
a decree of cancellation of sale deed on the ground
inter alia of fraud or any other valid reasons.”

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In the light of the above, the present Writ Petition is
allowed and the unilateral cancellation of the settlement deed
registered as document No.1729 / 2001 dated 05.07.2001 is set
aside and the 2nd respondent is directed to remove the entries
pertaining to the same in the register. It is needless for
this Court to make a mention that this order will not prevent
the 5th respondent from approaching the civil court to establish
his right over the property, if done so, the Civil court, shall
decide the matter uninfluenced by any of the observation in this
order, as this petition is decided only on the cancellation of
settlement deed on the ground that it is an unilateral
cancellation. No costs.

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