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MADRAS HIGH COURT
M.Y. Eqbal, C.J.; P. Jyothimani and T.S. Sivagnanam, JJ.
M/s. Latif Estate Line India Ltd. rep. by its Managing Director —Appellant
versus
Mrs. Hadeeja Ammal & Ors. —Respondents
W.A. NOS. 592 & 938 OF 2009 with W.A. NO. 592 OF 2009
Decided on 11.2.2011
AIR 1960 Madras 1; (2005) 6 SCC 705; AIR 1964 SC 227 – Relied upon
AIR 2000 AP 57 – Assented to
AIR 2005 SC 3401; AIR 1935 Patna 291; 1933 Lah 786; AIR 1955 MB 205; ILR XXXII Allahabad 171; 2009 (6) CTC 1009 (DB); 2009 1 CTC 707 – Referred
(ii) Registration Act, 1908 – Aims and object – Object of registering a document is to give notice to the public at large that the document has been executed to prevent fraud and forgery and to secure a reliable and complete amount of all the transactions affecting the title to the property. (Para 30)
(iii) Registration Act, 1908 – Section 22-A r/w circular dated 5.1.2007 – Power of State Government to declare a document as opposed to public policy –The provision having already been held ultra vires, deed of cancellation of sale cannot be refused registration on this ground. (Para 35)
(2005) 12 SCC 77 : 2005 (4) CTC 606; 2007 (3) CTC 513 : 2007 3 MLJ 1025 – Relied upon
(iv) Registration Act, 1908 – Sections 32, 32-A and 34-A – The provisions aim to restrict or at least minimize the forgery and fraud committed by the parties to the document, and to give legal sanctity once the document is registered according to the provisions of the Registration Act – Any deed sought to be registered must be signed by both the parties – Hence unilateral deed of cancellation of sale cannot be entertained. (Paras 40 to 42)
(2005) 12 SCC 77: 2005 (4) CTC 606; (2009) 7 SCC 363 – Relied upon
(2009) 6 MLJ 1009; (2009) 4 CTC 627; (2009) 1 CTC 709 – Assented to
(2007) 1 CTC 97: AIR 2007 AP 57 – (FB) – Dissented with
(v) Transfer of Property Act – Section 54 r/w section 47, Registration Act, 1908 – Once a vendor executes a sale deed he is divested of his ownership of the property – Thereafter he retains no control or right over the said property – Section 47 of the Registration Act only affirms the title created by sale deed, it does not create title. (Para 49)
(2009) 4 SCC 193 – Relied upon
AIR 1958 Patna 193 – Assented to
(vi) Transfer of Property Act- Section 54 – Once a transaction is affected by sale deed and registering it, the same can be avoided only by a subsequent registered transfer – Not by a deed of cancellation – Such deed is irrelevant – If the reconveyance of the property is intended, separate deed of transfer should be executed. (Paras 52 and 54)
AIR 1922 Privy Council 56 – Relied upon
AIR 1961 Orissa 19 – Assented to
(vii) Specific Relief Act, 1963 – Section 31 – The provision is protective or preventive in nature – It embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him – Such jurisdiction is vested in civil court which can entertain such claim even by a third party. (Paras 56 and 57)
AIR 1960 Madras 1 – Relied upon
(viii) Registration Act, 1908 – Section 17 – Vendor cannot annul a sale deed unilaterally – However, a document canceling a sale deed can be registered if executed by the vendor and the vendee both. (Para 58)
Facts of the case:
The question arising in this case is whether a deed of cancellation of sale deed executed unilaterally by the vendor can be registered.
Finding of the Court:
A deed of cancellation of a sale unilaterally executed by the transferor is of no effect. Such a deed of cancellation cannot be accepted for registration.
Result: Reference answered.
M.Y. Eqbal, C.J.—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 co
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