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2011 Supreme(Mad) 725

2011 (1) LW 673, 2011 (2) CTC 1, 2011 (2) MLJ 569, 2011 AIR(Mad) 66, 2011 (3) KLT 73 (SN) (C.No.70)
High Court of Judicature at Madras
MR. M.Y. EQBAL, P. JYOTHIMANI & T.S. SIVAGNANAM
M/s. Latif Estate Line India Ltd. rep. by its Managing Director
Versus
Mrs. Hadeeja Ammal & Others
W.A. NOS. 592 & 938 OF 2009
Decided on : 11-02-2011

Appearing Advocates:
For the Appellant:V. Raghavachari, Advocate.
For the Respondents: J. Raja Kalifulla, Govt. Pleader, Ms. Chitra Sampath, Amicus Curiae.

Headnote:A. REGISTRATION ACT, 1908 - SECTIONS 17, 17-B, 18, 32, 32-A, 22-A AND TRANSFER OF PROPERTY ACT, 1882 - SECTION 54 & 323-A Cancellation of deed, registration of - Considerations - Writ Appeals filed for reference before Full Bench of High Court on the following questions : (i) Whether cancellation of a registered sale deed of an immovable property having valuation of more than 1 Lakh, can be registered either under Section 17 or 18 or any other provision of Registration Act? (ii) Whether for such cancellation signature of persons claiming under document for sale of property is required to sign document, if no such stipulation is made under Act, and (iii) Whether decision in relevant writ and appeal amounted to amending provision of Registration Act and Rules, by inserting a clause for extinguishing right, title or interest of a person on an immovable property of value more than Rs. 100/- in a manner not prescribed under Rules? - HELD, (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.

       Result: Appeal ordered accordingly.

Judgment :-


1. These two appeals have been filed against the order passed in W.P.Nos.17555 of 2008 and 27291 of 2008.

2. In W.P.No. 17555 of 2008, the facts of the case are that the writ petitioner (respondents 2 and 3) claims to be the owner of Plot No.223, measuring 2500 sq.ft. comprised in survey Nos.98/5, 98/2A/2 and 98/2B/3, Kakkalur Village, Tiruvallur Taluk and District. The said property allegedly purchased by the writ petitioner by means of registered sale deed dated 13th Nov., 1996, from the 2nd respondent/appellant. She claims that the entire sale consideration was paid and she was also put in possession. However, the 2nd respondent/appellant unilaterally executed the cancellation deed on 27th Aug., 2007, which was registered by the 1st respondent, being Document No.16826/07. The 2nd respondent/appellant denied the allegation and stated that the writ petitioner was not in possession of the property and the appellant continued to be in possession of the same. It was also contended that the sale consideration was not paid. Learned single Judge, following the judgment and order rendered in W.P. No.8567/08 held as under: - i) Challenging registration of a unilaterally executed cancellation of a sale deed, a writ petition is maintainable under Article 226 of the Constitution of India. ii) A cancellation of a sale deed executed by mutual consent by all parties to the sale deed, if presented for registration, Registering Officer is bound to register the same if the other provisions like Section 32-A of the Registration Act are complied with. iii) The Registering Officer is obliged legally to reject and to refuse to register a unilaterally executed deed of cancellation of a sale deed without the knowledge and consent of other parties to the sale deed. On the basis of the aforesaid conclusion, learned single Judge held that the cancellation deed was executed unilaterally by the 2nd respondent/appellant without the knowledge and consent of the writ petitioner and without complying the requirements of Section 32-A of the Registration Act. Hence, the writ petition was allowed and the registration of cancellation deed was quashed.

3. Similarly, W.A. No.592 of 2009 arose out of the order passed in W.P.No. 27291 of 2008. The facts of the case are that the writ petitioner/respondent claimed to be the owner of Plot No.24 measuring 3010 sq. ft. of Survey No.132/1B1 and 131/A present survey No.132/1A1 of Thirumullaivoyal Saidapet Taluk, Chengai MGR District, which was purchased by means of registered sale deed, dated 13th Dec., 1997, from the 3rd respondent/appellant. She claimed that the entire sale consideration was paid and she was put in possession of the same. However, the 3rd respondent/appellant unilaterally executed a cancellation deed on 29th Aug., 2007 and the same was registered by the 2nd respondent as Document No.10079/07. The writ petitioner, therefore, sought quashing of the said cancellation deed. The case of the respondent/appellant was that the writ petitioner was never put in possession of the property after the execution of the sale deed. Rather, because of the non-payment of consideration, the appellant executed the cancellation deed nullifying the earlier sale deed. Learned single Judge, following the decision in W.P. No.8567/08 came to the same conclusion as noted above in W.A. No.938/09. The judgment and order has been challenged by the appellant on the same grounds as made out in the aforesaid appeal, W.A. No.938/09.

4. A Division Bench of this Court while hearing the appeals found that the learned single Judge relied on the earlier decision passed in W.P.No.8567 of 2008 where the learned Single Judge held that the cancellation of sale deed executed by mutual consent by all the parties to the sale deed, if presented for registration, the Registering Officer is bound to register the same, if other provisions of Section 32-A of the Registration Act have been complied with.

5. Doubting the correctness of the judgm


























































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