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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. MURUGESAN
& THE HONOURABLE MR. JUSTICE K. VENKATARAMAN
E.R. Kalaivan
Versus
The Inspector General of Registration & Another
W.A.No.507 of 2009
Decided on: 09-07-2009
(B) Registration Act, 1908 (16 of 1908)-Sec.17, 18, 32-A-Indian Contract Act, 1872 (9 of 1972)-Sec.62-Registration-Deed of cancellation-Procedure-Consent of purchaser-Novation-Recession- A registered sale deed, if sought to be cancelled, registration of such deed must be at the instance of both the parties viz., bilaterally and not unilaterally.
Having regard to the above provisions, a registered sale deed, if sought to be cancelled, registration of such deed must be at the instance of both the parties viz., bilaterally and not unilaterally. Para 12
(C) Registration Act, 1908 (16 of 1908)-Sec.17, 18, 32-A-Indian Contract Act, 1872 (9 of 1972)-Sec.62-Registration-Deed of cancellation-Procedure-Consent of purchaser-Novation-Recession-Cancellation of already concluded sale amounts to a new contract (novation) for which the deed has to be bilateral.
Section 62 of the Indian Contract Act, 1872 which provides that contract which need not be performed. By that provision, any novation, rescission and alteration of a contract can be made only bilaterally. A deed of cancellation will amount to rescission of contract and if the issue in question is viewed from the application of Section 62 of the Indian Contract Act, any rescission must be only bilaterally. Para 12
(D) Registration Act, 1908 (16 of 1908)-Sec.17, 18, 32-A-Indian Contract Act, 1872 (9 of 1972)-Sec.62-Registration-Deed of cancellation-Procedure-Consent of purchaser-Public policy-Novation-Recession-Natural justice-Unilateral cancellation of sale deed without the knowledge and consent of the buyer is against the principle of natural justice and the Registrar has to protect the interest of the buyer.
The principles of natural justice are also to be adhered to by the Registering Officer while dealing with a deed of cancellation of sale. If a unilateral cancellation deed is allowed to be registered, without the knowledge and consent of the other party to the earlier contract, such registration would cause violence to the principles of natural justice and lead to unnecessary litigation emanating therefrom. Para 15
(E) Registration Act, 1908 (16 of 1908)-Sec.17, 18, 32-A-Indian Contract Act, 1872 (9 of 1972)-Sec.62-Registration-Deed of cancellation-Power of registrar-Procedure-There is no provision empowering the Registrar to receive and register unilateral deed of cancellation.
When the Registrar satisfies himself on the perusal of the document, wherein it is stated that the full sale consideration is received and on such satisfaction, entertain the document for registration, cannot thereafter be conferred with a power for cancellation of the deed on the ground that the full sale consideration was not paid and received by the vendor. Conferring such power on the Registrar would tantamount to conferring a power to decide the disputed questions. That apart, as already stated, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration, without the signature of both the vendor and the purchaser, the deed cannot be entertained. Para 19
D. Murugesan, J.
Writ Appeal is against the order of the learned single Judge of this Court made in W.P.No.36093 of 2007 dated 12. 2009.
2. This writ appeal raises an important question as to whether the Registrar, who is empowered to register the documents under the Indian Registration Act, could register a document unilaterally executed by the vendor canceling the earlier sale made.
.3. The facts leading to the above issue arise on the following circumstances:
.By a registered Document No.81 of 2001 dated 2. 2001 on the file of the Sub-Registrar, Kalaiyarkoil, the appellant sold an extent of 0.90 cents to one Kannathal, Wife of (late) Ramasamy Konar of Aralikottai Village. Subsequently, the appellant approached the Sub-Registrar for registration of a deed of cancellation dated 1. 2006 on the ground the sale deed is not supported by consideration. It appears that the Registrar was reluctant to entertain such a document and refused to register the same apparently on the ground that the cancellation deed was sought to be registered without there being a consent from the purchaser. Hence, the appellant approached the Inspector General of Registration. The Inspector General of Registration issued a circular dated 10. 2007, whereby all Deputy Inspector Generals of Registration, District Registrars and all Sub-Registrars were directed that the deed of cancellation should bear the signatures of both the vendor and the purchaser. This circular came to be challenged before this Court and by the impugned order, the writ petition was dismissed. Hence, the present writ appeals.
4. We have heard Mr.K.Bijai Sundar, learned counsel for the appellant and Mr.J.Raja Kalifullah, learned Government Pleader for the respondents.
5. Mr.K.Bijai Sundar, learned counsel appearing for the appellant has submitted that in the absence of any provision, the Registrar cannot refuse to register a deed even in case of a deed of cancellation. In this regard, he would submit that the State has inserted the provisions of Section 22-A to the Registration Act by the Registration (Tamil Nadu Amendment) Act, 1994 (for short, "the Act"). By that provision, the Registrar was restrained from registering a cancellation deed in the absence of both the parties to the document. He would submit that the said provision was questioned before a Division Bench of this Court in the judgment in Captain Dr.R.Bellie v. Sub-Registrar, (2007) 3 MLJ 1025 and the said provision was struck down on the ground that the State Legislature had not laid down any guidelines defining "public policy" or documents which are "as opposed to public policy." He would also submit that the G.O.Ms.No.150, Commercial Taxes Department dated 29. 2000 issued pursuant to the amended provisions of Section 22-A was also set aside.
6. He would also rely upon the subsequent G.O.Ms.No.139, Commercial Taxes and Registration (J1) Department dated 27. 2007 issued pursuant to the order of the Division Bench in Captain Dr.R.Bellies case (supra). Placing reliance on the above judgment as well as the notification, he would submit that the cancellation of sale deed without express consent of parties to the document is one of the categories referred to in the Government Order dated 29. 2000. Hence, when this Court in Captain Dr.R.Bellies case declared the amended provision of Section 22-A of the Act is null and void and the consequential Government Order dated 29. 2000 came to be set aside, the Registrar cannot refuse to register a deed of cancellation of sale deed on the ground that no consent of purchaser was obtained and that too, in the absence of any specific provision for the insistence of consent from the purchaser. He would also submit that inasmuch as the said Division Bench judgment was rendered following the judgment of the Supreme Court in State of Rajasthan v. Basant Nahata, 2005 (4) CTC 606 and a similar order of the Division Bench made in Writ Appeal No.1923 of 2005 dated 111. 2005 dismissi
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