The factum of possession is crucial for a valid gift under the Mahomedan Law, and the registering authority has limited powers in refusing registration.

1. Even though, the interim application is listed before me, by consent, the Writ Petition itself is taken up for final hearing.

2. The following questions of law arise for consideration in this Writ Petition:

(i) Whether a registered Settlement Deed executed by a Mahomedan father in favour of his son can be permitted to be revoked by a subsequent registration of a Cancellation Deed under the Registration Act, 1908.

(ii) Is the registering authority bound to register the Cancellation Deed or can go into the validity of the said document vis-a-vis the Settlement Deed and the applicability of the Muslim Personal Law (Shariat).

(iii) When the registering authority registers such a Deed of Cancellation, can this Court go into the same and declare the registration as null and void by considering the provisions of the Registration Act, 1908; Mahomedan Law; Transfer of Property Act, 1882; Indian Evidence Act, 1872 as well as the averments contained in the deeds while exercising the discretionary and extraordinary power under Article 226 of the Constitution of India.

3. Heard Shri.K.M.Vijayan, learned senior counsel appearing for the petitioner and Shri.I.Arokiasamy, learned Government Advocate appearing for first respondent as well as Shri.V.Lakshminarayanan, learned counsel appearing for the respondents 2 and 3 and perused the entire materials available on record.

Facts in brief:

4. The petitioner and the second respondent are son and father being Mahomedans governed by the Muslim Personal Law (Shariat). A registered Settlement Deed was executed by the second respondent in favour of the petitioner by way of a gift of a portion of the property, in which, the second respondent is living. The Settlement Deed was executed on 11.08.2004 by the second respondent. Thereafter, the second respondent unilaterally revoked the Settlement Deed on 18.07.2011 by way of a Cancellation Deed and consequentially conveyed the very same property in favour of his grandson, namely, the third respondent on 22.07.2011. Aggrieved by the registration of the Cancellation Deed and seeking to set aside the same, the present Writ Petition has been filed.

Submissions of the learned counsel for the petitioner:

5. Shri.K.M.Vijayan, learned senior counsel appearing for the petitioner submitted that what has been registered is a Settlement Deed and such a deed requires a registration under Section 17 of the Registration Act, 1908. Section 48 of the Registration Act, 1908, imposes fetters on any oral agreement or declaration contrary to the registered document. When a Settlement Deed has been registered, the title passes on to the settlee. Therefore, in the absence of any title, the settlor cannot unilaterally cancel such a document which is impermissible in law. When once the parties come under the purview of the Registration Act, 1908, the provisions of the said Act alone would govern. In other words, the Personal Law, namely, Muslim Personal Law (Shariat) will not have any bearing on such a transaction as against the provisions of the Registration Act, 1908. Even assuming the Mahomedan Law is applicable, under Section 167(4) once possession is delivered, a settlement cannot be revoked except by a decree of the Court. In view of the specific averment in the deed of settlement regarding possession, the first respondent ought not to have registered the document. A document reduced in writing requires compulsory registration notwithstanding the Personal Law. The learned senior counsel has also made reliance upon Section 2(24) of the Indian Stamp Act, 1899 and submitted that when once a deed of settlement is executed then the provision of the said Act alone would be made applicable. Therefore, the learned senior counsel submitted that the Writ Petition will have to be allowed. In support of his contentions, the learned senior counsel has made reliance upon the following judgments:

"S.GANESAN vs. BHARATHIRAJAN [2009 (5) CTC 558]

ISMAIL GANI vs. MAIM PON