MANU/TN/1056/2012

Equivalent Citation: (2012)5MLJ169

IN THE HIGH COURT OF MADRAS

W.P. Nos. 17182 of 2011 and 5046 of 2012 and M.P. Nos. 1 of 2011 and 1 of 2012
Decided On: 07.06.2012
Appellants: D. Mohan
Vs.
Respondent: Sub Registrar
Hon'ble Judges/Coram:
V.K. Sharma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.M. Vijayan, Senior Counsel for K.M. Vijayan
Associates
For Respondents/Defendant: V. Jayaprakashnarayanan, Additional Government
Pleader and T.V. Sekar, Advocate
Case Note:
Civil - Cancellation Deed - Registration of - Section 126 of Transfer of
Property Act, Section 22A(1) of Registration Act, 1908 and Section 15 of
Tamil Nadu General Clauses Act, 1891 - Whether Sub Registrar could
register cancellation deed unilaterally without consent of Petitioner - Held,
in exercise of powers conferred by Section 22A(1) of Act read with Section
15 of Act, State revoked commercial taxes department notification and
published notification in gazette - Unilateral cancellation of sale deed by
registered instrument at instance of vendor only encouraged fraud and was
against public policy but there were circumstances where deed of
cancellation presented by both vendor and purchaser for registration had to
be accepted by Registrar if other mandatory requirements were complied -
Therefore vendor by unilateral execution of cancellation deed could not
annul a registered document duly executed by him as such act of vendor
was opposed to public policy - Deed of cancellation of sale unilaterally
executed by transferor did not create, assign, limit or extinguish any right,
title or interest in property - Such document did not create any
encumbrance in property already transferred - Therefore deed of
cancellation could not be accepted for registration - Once title to property
was vested in transferee by sale, it could not be divested unto transferor by
execution and registration of deed of cancellation even with consent of
parties - Proper course would be to re convey property by deed of
conveyance by transferee in favour of transferor - As per Section 126 of Act,
except for conditions stipulated therein, gift was irrevocable - It was not
disputed that none of conditions entitling revoking of gift exists in present
case - As gift was irrevocable and unconditional, it was not open to
Respondent no 2 to register cancellation deed, being opposed to public
policy - Ground raised was that Respondent no 1 had no right to execute
gift deed with respect to ancestral property and on ground of fraud - A
person having no right in property could not get it cancelled by getting it

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registered - In case of gift, donor after executing gift deed when it was
accepted by donee, was left with no interest in property - Therefore it was
not open to Respondent to get cancellation deed registered - Registration of
impugned deed of cancellation, could not be sustained in law, being against
public policy - Petitions allowed and registration deed of cancellation was
ordered to be quashed
ORDER
V.K. Sharma, J.
1. As the common question of law and facts are involved in these two writ petitions,
these are being disposed of by common order.
For the sake of brevity, the facts are taken from W.P.No. 17182 of 2011. The
petitioner is the son of Mr. D. Thangam, respondent No. 2, who was the original
owner of the property bearing Plot No. 31, Cresent Avenue, Kesavaperumalpuram,
Greenways Road, Chennai 28, measuring about 4050 sq.ft. The property was
acquired from City Co-operative Housing Society in the year 1961, in the name of Mr.
B. Dharmarajan, and the possession of the property was handed over to the father of
the petitioner after payment of the dues. The petitioner along with his two brothers
took care of the family and also conducted marriages to his sisters in the year 1974
and 1980 out of their earnings. Both the sisters are well settled abroad and are
foreign citizens.
2 . The sisters of the petitioners visit India once in two years. In the year 1986,
mother of the petitioner decided to give separate share to the petitioner and common
undivided share to the brothers by sub dividing the property.
3 . The second respondent executed the registered Will. The respondent No. 2 also
executed lease deed in favour of the petitioner for 25 years enabling him to construct
the building for his personal residence.
4 . The sisters of the petitioner had no objection for construction of residential
complex in the share falling to the petitioner. The petitioner constructed the building
after getting planning permission.
5. On 9.5.2008, the second respondent out of love and affection, executed settlement
deed with all rights keeping in mind, the earlier Will and lease deed.
6 . The case of the petitioner is that the sisters of the petitioner compelled the
respondent No. 2, to cancel the settlement deed and got registered the cancellation
deed on 19.8.2010. After expiry of two years of deed of cancellation, the respondent
No. 2 created another settlement deed by dividing the property in equal shares
including share for daughters on 24.9.2010.
7. The respondent No. 4 and 5 thereafter asked the petitioner to demolish the house
and develop it as flats which was not accepted by the petitioner.
8. The stand of the petitioner is that cancellation of settlement deed in favour of the
petitioner is outcome of the mental torture by the sisters of the petitioner, even
though the respondent No. 2 had no such intention.
9 . The registration of cancellation deed has been challenged to be violative of
provisions of the Registration Act.

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10. The writ petitions are opposed by the respondent No. 2, by contending that the
writ petitions are not competent, as the petitioner can go to civil Court to challenge
the cancellation of settlement deed executed in favour of the petitioner. The
petitioner has not filed the settlement deed dated 9.5.2008 registered as Doc. No.
1075 of 2008 by his father, but has only filed settlement deed in favour of the
grandson Arvind which pertains to other property.
11. It is also the stand of the respondent No. 2 that she had made it clear that the
Will executed by her was intended to be revoked.
12. It is also submitted that her intention as well as her husband's intention was to
divide the property equally.
1 3 . It is stated in the counter that the petitioner and his brother asked the
respondent No. 2, to execute settlement deed as the Government was to give certain
concession with the assurance that Will would also be revoked subsequently.
14. It was made clear by the respondent No. 2 to her sons and daughters, that her
intention was to divide the property equally and furthermore, she was assured by the
petitioner and his brothers that the property will be divided equally.
1 5 . She did not know to read and write english, so did not know about the
settlement deed at the time of registration.
16. It was after her two daughters came from America and scrutinised the documents
that it was disclosed that the settlement was in favour of the petitioner and two
grandsons, and the sisters of the petitioner were not included in the settlement deed.
17. The submission of the respondent No. 2 is that on coming to know about the
settlement deed, she took steps to cancel it.
18. The learned counsel for the respondent No. 2 also challenged the maintainability
of the writ petition on the ground that it was not open to the petitioner to challenge
the registration of cancellation deed, as the Sub Registrar can only consider objection
under Rule 55 of the Registration Act, and once the person executing the document is
genuine, the Registrar has no option, but to register the document.
1 9 . As already observed above, the stand of the respondent No. 2 is that the
petitioner could file a civil suit to challenge the cancellation of settlement deed in
favour of the petitioner, but cannot question the cancellation by invoking writ
jurisdiction.
20. The learned senior counsel for the petitioner vehemently contended that in view
of Section 126 of the Transfer of Property Act, when the gift deed absolute and not a
conditional gift, the donee gets absolute title under the gift. The settlement deed after
it is acted upon, cannot be revoked.
21. In support of this contention, the reliance was placed on the judgment of this
Court in Bharathi v. Palaniammal and 2 Others (2011) 1 LW 998 : LNIND 2011 Mad
486 : MANU/TN/0195/2011 : (2011) 6 MLJ 843.
22. Reliance was also placed on the judgment of this Court in E.R. Kalaivan v. The
Inspector General of Registration and Another MANU/TN/1864/2009 : 2009 (4) CTC
618 : LNIND 2009 Mad 2061 : (2009) 6 ML J 1009 to contend that the Registrar
before registration of documents is bound to enquire about the validity of document

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presented for registration and its rescission can be done only bilaterally and not
unilaterally. Therefore, it was not open to the respondent No. 2 unilaterally execute
the deed of cancellation of settlement deed.
23. It was also the contention of the learned counsel for the petitioner that even a
contract cannot be revoked unilaterally.
2 4 . The Hon'ble Supreme Court in Asokan v. Lakshmikutty and Others
MANU/SC/0104/2008 : (2007) 13 SCC 210: LNIND 2007 SC 1501 was pleased to lay
down as under:
30. Once a gift is complete, the same cannot be rescinded. For any reason
whatsoever, the subsequent conduct of a donee cannot be a ground for
rescission of a valid gift.
2 5 . This contention of the learned senior counsel for the petitioner cannot be
considered at this stage, as this Court is not to go into the question, as to whether
the gift deed was rightly revoked or not, as it can be determined in the civil Court. It
is for the parties to challenge the settlement deed in the civil Court.
26. The only question to be determined in this case is:
Whether the Sub Registrar could register the cancellation deed unilaterally
without the consent of the petitioner.
The answer is in the negative.
27. In support of the contention that the gift deed cannot be unilaterally cancelled,
the learned senior counsel for the petitioner placed reliance on the judgment of this
Court in Latif Estate Line India Limited v. Hadeeja Ammal, MANU/TN/0310/2011 :
2011 (2) CTC 1 : LNIND 2011 Mad 658 : (2011) 2 MLJ 569, laying down as under:
2 0 . 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, MANU/TN/8130/2007 : (2007) 3 ML J
1025 : 2007 (3) CTC 513. 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 61 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

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 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 22.9.2000.
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.
5 9 . 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.

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2 8 . The learned senior 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 have registered the cancellation 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 registering the cancellation of Settlement deed with the Sub-Registrar.
The cancellation deed and its registration, therefore, being without jurisdiction, is
liable to be set aside.
29. The learned senior 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 register the cancellation deed.
30. The reliance in support was placed on the judgment of the Kerala High Court in
the case of Noble John v. State of Kerala, 2010 (3) KLT 941 : LNIND 2010 Ker 547,
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 Rule 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 1/2 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
MANU/AP/0747/2006 : AIR 2007 A.P. 57 and 2009 (1) CTC 209 : AIR 2010
Mad. 18 and dissenting from (2008) 4 KLT 928 and majority view in
MANU/AP/0747/2006 : 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

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 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, 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. Section 35 of the Act indicates that 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 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 Rule 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 Section 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 Rule 67 of the
Registration Rules (Kerala) and the same is in consonance with the object of
the Registration Act and Rules.
3 1 . The learned counsel for the respondents contended the writ petitions on the
ground of maintainability. The contention of learned counsel for the respondents was
that the petitioner could challenge the deed of cancellation, by filing civil suit, and no
writ is competent, as the Sub Registrar was bound to register the document once
conditions under Rule 55 of the Registration Act were satisfied.
32. In support of this contention, learned counsel for the respondents placed reliance
on the decision of this Court in the case of M. Muthu Gangai Anandi and Others v.
The Sub Registrar, Nallur, Tripur District and Others (W.P. No. 17400 of 2011)
decided on 1.12.2011, 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 32-A of the Registration Act are complied with
or he is obliged to reject and refuse to register the unilaterally executed deed

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 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.
1 0 . 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.
33. On consideration, I find that these writ petitions deserves to succeed. As per
Section 126 of Transfer of Property Act, except for the conditions stipulated therein,
the gift is irrevocable. It is not disputed that none of the conditions entitling revoking
of gift exists in this case. As the gift was irrevocable and unconditional, it was not
open to respondent No. 2 to register the cancellation deed, being opposed to the
public policy.
34. 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 v. Hadeeja Ammal
(supra).
35. The judgment of this Court in M Muthu Gangai Anandi and Others v. 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 in the
said case was that the Sub-Registrar was empowered to revoke the settlement under
the provisions of Chapter-VII of the Transfer of Property Act, 1882.
3 6 . There is no such plea in those cases, 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 the ground of fraud.
3 7 . It will be for respondent No. 1 or persons drawing their title from her to
challenge the Gift Deed in the civil Court, but gift deed could not be revoked by way
of cancellation deed, once the case did not fall within the exceptions, under Section
126 of the Transfer of Property Act.
38. The ratio of the judgments is that a person having no right in the property cannot
get it cancelled by getting it registered. In the case of gift, the donor after executing
the gift deed when it is accepted by the donee, is left with no interest in the property,
therefore, it was not open to the respondent to get the cancellation deed registered,
as she could have challenged it by filing civil suit and proving the allegations of
fraud.

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3 9 . For the reasons stated hereinabove, registration of impugned deed of
cancellation, cannot be sustained in law, being against the public policy.
40. The writ petitions are accordingly allowed. The registration deed of cancellation
is ordered to be quashed. The subsequent settlement deed can be challenged by the
petitioner in civil Court. It is also made clear that this decision be not taken as
upholding the gift deed executed in favour of the petitioner. It will be open to the
respondents to challenge the gift deed in accordance with law in the Civil Court, if so
advised.
No costs.
Connected miscellaneous petitions are closed.
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