S. Lingeshwaran vs The Sub-Registrar, Purasawalkam and Others

T.S. Sivagnanam, J.—Heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the first respondent and perused the materials placed before this Court and counter affidavit filed by the first respondent.

The notice sent by the Court to the second respondent has been refused to be received after the bailiff has explained the nature of the notice. So far as the other respondents, the notice has returned unserved and their names are printed in the cause list but none appears for those respondents. Therefore the writ petition is taken up for disposal.

The petitioner seeks for issuance of a writ of Certiorarified Mandamus to quash the unilateral executed cancellation deed in Document No. 2582/2014, dated 08.05.2014 on the file of the first respondent and subsequently, unilaterally executed deed of settlement by the second respondent in favour of the respondents 4 and 5, dated 07.7.2014, vide document No. 2988 of 2014. Learned counsel for the petitioner would state that the petitioner is the absolute owner of the land and building at Plot No. 19, New Door No. 143, (Old No. 74) Strahnas Road, Otteri, Perambur Barracks, Chennai - 600 012 and comprised in R.S. No. 2770, 2774, Chennai District measuring an extent 1232 1/2 sq. ft. lying within the Sub Registration District of Purasawalkam and Registration District of Chennai-Central for having acquired the same by a Registered Deed of Settlement dated 05.07.2013 bearing Document No. 2739 of 2013 on the file of the first respondent.

Learned counsel further submitted that the said property originally belonged to the second respondent''s husband D. Sankaralingam Nadar, who having purchased the same under a Deed of Sale dated 12.11.1942, registered as document No. 953 of 1942 on the file of the Sub Registrar Office, Periamedu. It is further stated that the said Sankaralinga Nadar died intestate leaving behind his wife S. Rajammal, the second respondent herein as his only legal heir as they had no issues.

The further case of the petitioner that the second respondent adopted a girl child by name S. Shanthi @ Shanthakumari, the third respondent herein, vide adoption deed was registered and declared by the VII Metropolitan Magistrate Egmore of 21.01.1974.

It is further submitted that from the date of marriage of the third respondent, the second respondent was under the care of the petitioner and the second respondent, out of love and affection for her only adopted daughter S. Shanthi, the second respondent herein, settled the land and building vide Settlement Deed dated 07.07.2011, registered as Doc. No. 2565 of 2011 in favour of the third respondent herein. It is further submitted that the third respondent held the property absolutely with full powers of alienation without any let or hindrance and after the settlement deed, the patta has been transferred in her name and she is in possession of the property and in the revenue records stands in her name. It is also further stated that the tenants are also paying rent to the third respondent and subsequently, the third respondent has executed a settlement deed in favour of the petitioner, who is the husband of the third respondent vide Settlement Deed registered as document No. 2739 of 2013 and now the rents are said to have been paid to the petitioner, since he is the owner of the property as on date.

While so, without notice to the petitioner as well as the third respondent, the second respondent unilaterally cancelled the settlement deed by a Deed of Cancellation, dated 08.05.2014, registered as Document No. 2582/2014 and in turn, the second respondent has executed a settlement deed in favour of the respondents 4 and 5, who are minors by a Settlement Deed, dated 07.07.2014, registered as Document No. 2988/2014. Learned counsel for the petitioner submitted that the petitioner has now challenged the unilaterally Deed of Cancellation dated 08.05.2014 and the Deed of Settlement dated 07.07.2014.

Learned Government Advocate appearing for the first respondent reiterated the facts as stated above and submitted that the petitioner has to prove all the facts only before the Civil Court and the writ petition cannot be entertained to cancel the registered document.

The issues which falls for consideration are, after execution of settlement deed, the settlor loses all rights over the same, she cannot unilaterally execute a cancellation deed without notice to the petitioner and the third respondent. Whether the first respondent has jurisdiction to register such a document. The said issue has been considered in the earlier decision of this Court (Madurai Bench) in the case of C.R. BANDHI and OTHERS V. THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME, CHENNAI-4 and OTHERS in W.P.(MD) No. 121 of 2013 dated 04.07.2014, in the said decision, this Court held that 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.

The operative portion of the order reads as follows:

"11. Here, in this case, it is seen that the unilateral cancellation deed was registered without notice to the petitioners. Further, in the settlement deed itself, it has been stated that the possession is handed over to the donee vi., first petitioner. Based on the same, mutations were also effected in the revenue records. In this regard, this Court is the view that it would be appropriate to look into the following decisions;

This Court in the judgment reported in D. Mohan and Another Vs. Sub Registrar, (District Registrar Cadre), Registration Dept., Chennai 600004 and Others, (2012) 5 MLJ 169 has held that 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. Further, a gift deed could not be revoked by way of cancellation deed, once the case did not fall within the exception, under Section 126 of the transfer of Property act and a person having no right in the property cannot get it cancelled by getting it registered.

Further, in the judgment reported in D.V. Loganathan Vs. Sub-Registrar and Another, (2014) 3 CTC 113 : (2014) 3 MLJ 666 has held that the registration of cancellation of the settlement deed is against the public policy as it was not open to the Sub Registrar to register the cancellation of the deed when the settlement deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the settlement deed he could have very well approached the Civil Court to set it aside, but certainly 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.

In yet another judgment reported in K.A. Shanmugam and K. Sengodan Vs. Tamilarasi, Sevanthi and Ayaponnu, (2011) 6 CTC 42 , this Court has held that mentioning of handing over of possession in settlement deed itself is sufficient to come to a conclusion that the settlement deed has been acted upon.

The dictum laid down in the above judgments are squarely applicable to the facts of this case. Though the learned counsel for the respondents submitted that as per Section 127 of the Transfer of Property act, a gift deed can be revoked by way of a cancellation deed, if it falls within the exception under Section 126 of the Transfer Property Act, 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 1st petitioner/settlee, the settlor/4th respondent herein had lost her right in the property. Unless the said right is restored by setting aside the settlement deed executed by the settlor in favour of the settlee by a competent Court, the Sub-Registrar is not competent to register the unilateral cancellation of settlement deed.

In view of the above, the deed of cancellation is ordered to be quashed and the subsequent order in the appeal dated 23.7.2012 is also quashed."

The aforesaid decision would be squarely applicable to the facts of the present case. Following the above said decision, the writ petition is allowed and the impugned deed of cancellation dated 08.05.2014 and the consequential settlement deed, dated 07.07.2014 are held to be invalid. However, it is open to the respondents 2, 4 and 5 to approach the Civil Court for appropriate relief if they so desire. No costs.