Prayer: Writ Petition is filed under Article 226 of the Constitution of India for issuance of a writ in the nature of of certiorari, calling for the cancellation deed Doc. No. 1492/2009 dated 14.9.2010 on the file of the S.R.O. Thukkanayakkanpalayam, Gobichettipalayam Taluk, Erode District and quash the same and consequently direct the 2nd respondent to delete the entries that reflects the aforesaid document from the 'A' Register maintained by the 2nd respondent herein.
O R D E R
1. The petitioner has invoked the extraordinary equitable jurisdiction of this Court with a prayer for issuance of writ in the nature of Certiorari, to quash the cancellation deed Doc.No.1492/2009 dated 14.09.2010 with consequential relief in the nature of Mandamus, for deleting the entries with regard to the said document from 'A' Register, maintained by the second respondent.
2. The petitioner is the daughter of respondent no.1 K.Sarojini, who owned the property to the extent of 2/3rd undivided share out of 1.60= acres in new Ka.Ka.No.77/12A19, Pullappa Naickkanpalayam, Gopichettipalayam Taluk, Thukka Naickan Palayam Sub Registration District, Erode District.
3. The petitioner is the younger daughter of the 1st respondent, was unmarried. Whereas all other brother and sisters of the petitioner were married and well settled. The petitioner was living with her mother. The respondent no.1 executed a Gift Deed vide Doc.No.3961/94 dated 22.07.1994 and handed over the possession of gifted land of the petitioner, who claims to be in possession and enjoyment of the property since the date of execution of the Gift Deed.
4. The petitioner got married to one G.Muniratnam, Advocate at Chennai on 22.04.1999 and a female child was born out their wedlock. The petitioner decided to put up a house at Chennai and approached the Bank for house loan. When an application for an encumbrance certificate was filed on 18.07.2011, it was disclosed that the Gift Deed executed in favour of petitioner was unilaterally cancelled by respondent no.1, vide Doc.No.1492/2009 dated 14.09.2009.
5. The petitioner has challenged the unilateral cancellation of Gift Deed, by placing reliance on the judgment of the Hon'ble Full Bench of this Court in LATIF ESTATE LINE INDIA LIMITED v. HADEEJA AMMAL, 2011 (2) CTC 1, laying down as under: "20. On the issue of Public Policy and Registration Laws, learned counsel contended that the Government of Tamil Nadu issued a notification in G.O.Ms.No. 150 dated 22.9.2000 under the powers conferred on it under Section 22-A of the Registration Act. According to the learned counsel, the Section is based purely on public policy. This Court had struck down the provision as illegal in CAPTAIN DR.R.BELLIE AND ANOTHER v. SUB-REGISTRAR, REGISTRATION OFFICE, COIMBATORE DISTRICT AND OTHERS, 2007 (3) CTC 513 : 2007 (3) MLJ 1025. Accepting the verdict, the Government of Tamil Nadu issued G.O. Ms. No. 139 dated 25.7.2007. For useful reference, the said G.O. is quoted hereunder. "Registration Act, 1908 Notification issued under Section 22-A of the Act declaring registration of certain categories of documents as opposed to public policy Cancellation of the Notification Orders issued. In exercise of the powers conferred by sub-section (1) of Section 22-A of the Registration Act, 1908 (Central Act VXI of 1908) read with Section 15 of the Tamil Nadu General Clauses Act, 1891 (Tamil Nadu Act 1 of 1891) the Government of Tamil Nadu hereby revokes the Commercial Taxes Department Notification issued in G.O.Ms. 150, Commercial Taxes Department, dated 22.9.2000 and published as Notification No. 11(2)/ CT/ 1024 (e)/ 2000 at pages 1 to 2 of Part II section 2 of the Tamil Nadu Government Gazette, Extraordinary dated the 22nd September, 2000. " According to the learned counsel, when this Court had expressed that public policy is a matter to be well defined in the statute and quashed the Notification, it is not within the realm of the Court to declare through a judgment that cancellation of sale deed is opposed to public policy as had been done in the matter under Appeal. Learned counsel submitted that the Government of Tamil Nadu had amended the law in Act 53 of 2008 but so far had failed to notify it. ............................................................
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.
59. After giving our anxious consideration on the questions raised in the instance case, we come to the following conclusion:
(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. (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 a deed of conveyance by the transferee in favour of the transferor. (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. (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."
6. Learned counsel for the petitioner, by placing reliance on the judgment of the Hon'ble Full Bench of this Court, vehemently contended that the registration of cancellation of Gift Deed is against the public policy, as it was not open to the Sub-Registrar to register cancellation of deed, when the Gift Deed was unconditional and irrevocable. The party aggrieved by the Gift Deed could have approached the Civil Court to get it set aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub-Registrar. The cancellation deed and its registration, therefore, being without jurisdiction, is liable to be set aside.
7. Learned counsel for the petitioner also referred to Section 126 of the Transfer of Property Act to contend that once the gift deed was incapable of being revoked, it was not open to the Sub Registrar to have registered the registration the cancellation deed. The reliance in support was also placed on the judgment of the Kerala High Court reported in the case of NOBLE JOHN v. STATE OF KERALA, 2010 (3) KLT 941, holding therein as under: "Summary
Questions raised are:
(i) Whether Registering authority can refuse registration if it is clear that person purporting to have executed cancellation deed is not the person entitled to the property as on date of execution?
(ii) Whether reasons mentioned in R.191 for which Registering authority can refuse to register a document presented before him for registration exhaustive?
(iii) Whether cancellation deed of a sale deed should contain photograph of both parties?
Fourth respondent executed and got registered a sale deed dated 9.1.1996 assigning the properties in favour of petitioner. After more than 13 = years of execution of sale deed, fourth respondent executed and got registered a cancellation deed dated 1.8.2009 cancelling earlier sale deed on the ground that petitioner has not paid balance sale consideration agreed upon, even though sale deed had acknowledged receipt of full sale consideration and that too after suffering an injunction in a civil suit. Petitioner challenges registration of cancellation deed. Court allowing the writ petition and relying on the minority view AIR 2007 A.P. 57 & 2009 (1) CTC 209 AIR 2010 Mad. 18 and dissenting from 2008 (4) KLT 928 and majority view in AIR 2007 A.P. 57 held that a Registering authority can refuse registration on cursory enquiry if its is made out that person purporting to have executed the cancellation deed is not the person entitled to the property as on date of execution, and (ii) cancellation deed of sale deed being a re-transfer of immovable property back to vendor, should contain photograph of both parties to sale deed without which cancellation deed cannot be validly registered. Held: If a person is not entitled to transferable property, 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 R.191 of the Rules, 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, the vendor is actually attempting to 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 competent to execute a 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 the previous documents 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. S.35 of the Act indicates that such an enquiry is not alien to the powers and duties of the Sub-Registrar. Going by S.34 of the Indian Registration Act and R.67 of the Registration Rules (Kerala), at first blush it may appear that the 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 R.191, would lead to very disastrous and anomalous results. A reasonable interpretation commensurate with the object of the Act and Rules would be that if by reading the document and looking at the previous documents registered in 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 S.71 of the Act. 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 R.67 of the Registration Rules (Kerala) and the same is in consonance with the object of the Registration Act and Rules."
8. The writ petition is opposed by the learned counsel for the respondents on the ground of its maintainability. The contention of learned counsel for the respondents is that the petitioner could challenge the deed of cancellation, by filing civil suit and that no writ is competent.
9. In support of the contention, learned counsel for the respondents placed reliance on the decision of this Court in the case of M.Muthu Gangai Anandi and Others vs. The Sub Registrar, Nallur, Tripur District and Others (W.P.No.17400 of 2011) decided on 01.12.2011, laying down as under: "9. In the decision relied on by the learned counsel for the petitioners, the question referred was, whether unilateral cancellation of sale deed executed is valid or not and the registering officer is bound to register the same if other provisions like Section 32A of the Registration Act are complied with or he is obliged to reject and refuse to register the unilaterally executed deed of cancellation of sale deed without the consent of other parties. Whether the said judgment can be applied to the deed of cancellation of settlement, where there is no consideration was paid and only out of love and affection or family arrangement settlement deed was executed, is an issue, not raised before the Full Bench. In the said Full Bench decision it is further held that it is for the Civil Court of competent jurisdiction to give declaration in favour of third party or a stranger if the third party can claim title to the property against the purchaser, who purchased the property for valuable consideration and came into possession. Cancellation of sale deed by the Vendor unilaterally after getting consideration was treated as fraud and opposed to public policy. Hence it was held that cancellation of sale deed can be registered only if the said deed is presented by both Vendor and Purchaser for registration.
10. Since serious disputed facts are involved in these cases and it is contended that the second respondent is empowered to revoke the settlement under the provisions of Chapter-VII of the Transfer of Property Act, 1882, I am of the view that the writ petitions filed with the above prayer are not maintainable and the petitioners can only approach the Civil Court."
10. On consideration, I find that this writ petition deserves to succeed, as per Section 156 of Transfer of Property Act, except for the condition stipulated therein, the Gift deed is irrevocable. It is not disputed that the non of the condition entitling revoking of Gift Deed exists in this case, as the Gift Deed was irrevocable and unconditional. It was not open to respondent no.2 to register the cancellation deed, being opposed to the public policy. The impugned order of registration, therefore, cannot be sustained in law, in view of the decision of the Hon'ble Full Bench of this Court, and decision of the Hon'ble Kerala High Court in Latif Estate Line India Limited vs. Hadeeja Ammal (supra).
11. The judgment of this Court in M.Muthu Gangai Anandi and Others vs. The Sub Registrar, Nallur, Tripur District and Others (supra) cannot advance the case of petitioner, as in the said case, there was serious dispute of facts. The stand was that the Sub-Registrar was empowered to revoke the settlement under the provisions of Chapter-VII of the Transfer of Property Act, 1882. There is no such plea, rather the ground raised is, that the respondent no.1 had no right to execute the Gift Deed with respect to the ancestral property and on allegations of fraud. It is for the respondent no.1 or persons drawing their title under her or to the property to challenge the Gift Deed in the Civil Suit, but certainly it could not be revoked by way of cancellation deed, once the case did not fall under the exceptions, under Section 126 of the Transfer of Property Act.
12. For the reasons stated herein above, registration of impugned deed of cancellation, therefore, cannot be sustained in law, being against the public policy.
13. The writ petition is accordingly allowed. The deed of cancellation is ordered to be quashed and the writ petition is ordered as prayed for.
14. However, it is made clear that this decision be not taken as upholding the Gift Deed executed in favour of the petitioner, as it will be open to the respondents to challenge the Gift Deed in accordance with law in the Civil Court, if so advised.
15. No costs. Connected miscellaneous petitions are closed.