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2016 DIGILAW 457 (MAD)

D. Raja v. Joint Sub-Registrar No. 1, Saidapet

2016-02-06

R.SUBBIAH

body2016
ORDER : R. Subbiah, J. 1. The petitioner has come up with this writ petition seeking for issuance of a Writ of Declaration to declare that the deed of cancellation dated 06.11.2014 presented by the second respondent and which was registered as document No. 11796 of 2014 on the file of the first respondent is null and void. According to the petitioner, the second respondent herein has executed a settlement deed dated 13.11.2008 in favour of the petitioner which was registered as document No. 7152 of 2008 on the file of the first respondent. On execution of the settlement deed, the possession of the property covered therein namely land and building measuring 3440 square feet out of 6440 square feet in New Door No. 8 (3/8) in Plot Nos. 70 and 88 of Rajeswari Nagar, Porur, Chennai - 600116 comprised in Survey Nos. 38/part, 38/1A1B1 and 38/1A1B2 of Karambakkam Village, Ambattur Taluk, Thiruvallur District was handed over to the petitioner by the second respondent. Further, on the strength of the settlement deed, the petitioner has mutated the revenue records and obtained Patta No. 2544 in his favour. It is stated that the petitioner is also paying the taxes and charges to the authorities concerned. It is further stated that the adjacent property measuring 2960 square feet of land was settled by the second respondent in favour of his daughter on the same day by executing another settlement deed. While so, on 30.06.2015, the possession of the property by the petitioner was interrupted by some strangers and therefore on 01.07.2015, the petitioner applied for encumbrance certificate. On going through the encumbrance certificate, the petitioner was shocked to see that the second respondent has cancelled the settlement deed dated 13.11.2008 executed in his favour by executing a Deed of Cancellation deed dated 06.11.2014. According to the petitioner, prior to cancelling the settlement deed dated 13.11.2008 executed in his favour, the second respondent has not intimated the petitioner or sent any notice regarding the proposed cancellation of the settlement deed. Hence, the unilateral cancellation made by the second respondent is bad in law. 2. The learned counsel appearing for the petitioner would vehemently contend that the first respondent is estopped from executing the cancellation deed dated 06.11.2014 without any notice to the petitioner. Hence, the unilateral cancellation made by the second respondent is bad in law. 2. The learned counsel appearing for the petitioner would vehemently contend that the first respondent is estopped from executing the cancellation deed dated 06.11.2014 without any notice to the petitioner. On the strength of the settlement deed dated 13.11.2008, the petitioner has mutated the revenue records and asserted his right, interest and title over the property in question. While so, before cancelling the settlement deed dated 13.11.2008, the first respondent ought to have issued a notice to the petitioner expressing her intention to cancel the settlement deed dated 13.11.2008. In the absence of such notice or any other intimation, the cancellation deed dated 06.11.2014 is vitiated. In this context, the learned counsel for the petitioner relied on the decision of this Court in the case of D.V. Loganathan vs. The Sub-Registrar, Office of the Sub-Registrar, Pallavaram, Chennai and Another, 2014 (3) CTC 113 to contend that the unilateral cancellation of the settlement deed 13.11.2008 executed in favour of the petitioner is bad in law and therefore the cancellation deed dated 06.11.2014 will not bind the petitioner in any manner. For the very same proposition of law, the learned counsel for the petitioner also relied on several other decisions rendered by this Court wherein it was held that an unilateral cancellation of an instrument, either gift deed, settlement deed or power of attorney is bad in law. Therefore, the learned counsel for the petitioner prays this Court to allow the writ petition by declaring the deed of cancellation dated 06.11.2014 executed by the second respondent as null and void and unenforceable against the petitioner. 3. The learned Additional Government Pleader appearing for the first respondent, relying on the counter affidavit of the first respondent, would contend that there is no embargo under the Tamil Nadu Registration Act to register the deed of cancellation of the settlement deed presented by the second respondent for registration. As a registering authority, the first respondent is bound to register the instrument if it is not in any way contrary to the Act and Rules. Further, there are no Government Orders prohibiting the registration of the Deed of Cancellation presented by the second respondent. As a registering authority, the first respondent is bound to register the instrument if it is not in any way contrary to the Act and Rules. Further, there are no Government Orders prohibiting the registration of the Deed of Cancellation presented by the second respondent. As per the Circular dated 25.04.2012 issued by the Inspector General of Registration, Chennai, even if the executor could not produce the original settlement deed which is sought to be cancelled, it is sufficient if a certified copy of the same is produced for cancellation of the same. Further, the first respondent, as a registering authority, cannot go into the question of handing over of possession or the vested right created in favour of the petitioner while entertaining the Cancellation Deed for registration. Therefore, according to the learned Additional Government Pleader, the first respondent is fully justified in entertaining the Cancellation Deed dated 06.11.2014 presented by the second respondent for registration and therefore he prayed for dismissal of the writ petition. 4. The learned counsel appearing for the second respondent, relying on the counter affidavit, would contend that property in question absolutely belonged to the second respondent, who has purchased the same during the year 1996 by two registered sale deeds. The petitioner is the adopted son of the second respondent. After purchasing the property, the second respondent has put up a construction thereon and leased out some of the portions for rent. According to the learned counsel for the second respondent, the petitioner showered love and affection towards the second respondent and therefore, the second respondent has executed the settlement deed dated 13.11.2008 in favour of the petitioner and the third respondent, who is the daughter of the second respondent. However, it is vehemently contended by the learned counsel for the second respondent that on executing the settlement deed dated 13.11.2008 possession of the property has not been handed over to the petitioner and this could be evident from the recitals of the settlement deed. Further, in the settlement deed dated 13.11.2008, the second respondent has retained her right to remain in the property till her life time and that is also one of the reasons the possession has not been handed over to the petitioner. Further, in the settlement deed dated 13.11.2008, the second respondent has retained her right to remain in the property till her life time and that is also one of the reasons the possession has not been handed over to the petitioner. While so, the petitioner, without the knowledge of the second respondent, has mutated the revenue records and attempted to assert a right over the property settled in his favour even during the life time of the second respondent. In this process, the petitioner has even attempted to murder the second respondent and during October 2014 he had thrown the second respondent out of the property. In such view of the matter, after giving a complaint to the local police, the second respondent has executed the deed of cancellation dated 06.04.2014. The cancellation deed dated 06.04.2014 is valid inasmuch as no right has been accrued to the petitioner on the basis of the settlement deed dated 13.11.2008. The decisions relied on by the petitioner has no applicability to the facts of this case inasmuch as the petitioner was not given possession of the property besides that as per the recitals in the settlement deed, the title of the property will pass on to the petitioner only after the lifetime of the second respondent. When the second respondent has cancelled the settlement deed dated 13.11.2008 even during her life time, it is valid in the eye of law. In view of the specific recitals contained in the settlement deed dated 13.11.2008, the second respondent is not bound to issue any notice to the petitioner before registering the deed of cancellation dated 06.11.2014. Above all, it is brought to the notice of this Court that soon after registering the Deed of Cancellation dated 06.11.2014, the second respondent has sold the property in question to the third respondent. The third respondent also filed a suit against the petitioner and obtained an interim injunction against the petitioner. Therefore, the learned counsel for the second respondent would pray for dismissal of the writ petition. 5. The third respondent also filed a suit against the petitioner and obtained an interim injunction against the petitioner. Therefore, the learned counsel for the second respondent would pray for dismissal of the writ petition. 5. The learned counsel for the petitioner, in reply, by relying on the rejoinder of the petitioner, would contend that even though the recitals contained in the Settlement Deed would indicate that possession has not been handed over to the petitioner, the fact remains that soon after executing the settlement deed, the second respondent was staying at Pondicherry with the third respondent and her husband. Further, the revenue records have been mutated with the consent of the second respondent preceded by inspection of the property in question by the revenue officials in the year 2010. The settlement deed has been executed by the second respondent on 13.11.2008 and after about six years, the second respondent is not justified in cancelling the same. The settlement deed has partaken the character of an irrevocable settlement deed and therefore also, the cancellation deed dated 06.11.2014 executed by the second respondent: in the office of the first respondent has to be declared as null and void and unenforceable. In this context, the learned counsel for the petitioner relied on various decisions of this Court to contend that an unilateral cancellation of the settlement deed dated 13.11.2008 is legally not sustainable and unenforceable and prayed for allowing the writ petition. 6. I heard the counsel appearing on either side and perused the materials placed on record. The second respondent is the mother of the petitioner. The third respondent is the daughter of the second respondent. Admittedly, the second respondent has executed a settlement deed dated 13.11.2008 in favour of the petitioner. However, according to the second respondent, even after the settlement deed dated 13.11.2008, possession of the property covered under the settlement deed remained with her and at no point of time the petitioner was put in possession of the property. 7. In this context, the recitals in the settlement deed dated 13.11.2008 has to be looked into. As per the recitals contained in the settlement deed dated 13.11.2008 executed by the second respondent, possession of the property has not been handed over to the petitioner. For ready reference, the recitals in the settlement deed dated 13.11.2008 are extracted hereunder:- xxx xxx xxx 8. As per the recitals contained in the settlement deed dated 13.11.2008 executed by the second respondent, possession of the property has not been handed over to the petitioner. For ready reference, the recitals in the settlement deed dated 13.11.2008 are extracted hereunder:- xxx xxx xxx 8. It is evident from the recitals contained in the Settlement deed dated 13.11.2008 executed by the second respondent that she had reserved her right to collect the rental income from the shops leased out within the property covered in the settlement deed dated 13.11.2008 till her life time. Similarly, she has indicated in categorical terms that the settlement deed would come into force only after her life time, meaning thereby, the second respondent her reserved her right to cancel the settlement deed if the petitioner acted contrary to the terms of the settlement. In this case, it is contended by the second respondent that inspite of such categorical recitals contained in the settlement deed, the petitioner has mutated the revenue records in his name and acted contrary to her interest. It is further stated that the petitioner attempted to murder the second respondent and thrown her out of her own property. This has prompted the second respondent to cancel the settlement deed dated 13.11.2008 by executing a Deed of Cancellation dated 06.11.2014. In any event, the recitals in the settlement deed clearly indicates that the petitioner was not put in possession of the property covered therein and the second respondent retained her possession as also the right to collect the rental income till her life time. The recitals would further indicate that after the life time of the second respondent, the petitioner and the third respondent can develop the property by constructing a septic tank etc. In this background, can it be said that the Deed of Cancellation dated 06.11.2014 has been cancelled unilaterally and it has to be declared as null and void. The answer must be in the negative. 9. It is well settled proposition of law that an unilateral cancellation of a deed or instrument is legally impermissible and it is unenforceable in the eye of law. The reason being, if a right is conferred upon a person by executing a settlement deed or power of attorney deed or any other instrument, the person in whose favour such deed or instrument has been executed accrues and derives a right. The reason being, if a right is conferred upon a person by executing a settlement deed or power of attorney deed or any other instrument, the person in whose favour such deed or instrument has been executed accrues and derives a right. To nullify such right, the settlor cannot be permitted to cancel the instrument without issuing a notice expressing his or her intention to cancel the deed. For example, a power of attorney is executed in favour of a person to do certain acts with right of alienation of the property. On the strength of such power of attorney, the agent would have resorted to sell the property by entering into an agreement of sale or sold the property to a prospective buyer by executing a sale deed. After such sale, if the power of attorney is cancelled retrospectively by the principal with an intention to undo certain acts done by the agent, third party right will intervene and in such context, the person who innocently purchased the property will be affected. That is the reason why before cancelling an instrument, notice must be given to the person indicating that he should no longer act on the basis of the power of attorney or settlement deed as he is intending to execute a deed of cancellation. If, inspite of such notice any sale is made or the property is alienated, then it can be concluded that such sale is made only to defeat the right of the settlor or owner of the property by the agent or settlee as the case may be. In other words, by reason of the settlement deed or power of attorney or any other instrument, the person in whose favour such an instrument has been executed must have derived some right and if the instrument is cancelled, it will not only affect the agent but the persons with whom he had entered into any transaction. 10. In the present case, the petitioner has not derived any such right. The pleadings made by the petitioner relating to possession of the property in question is belied by the recitals contained in the settlement deed dated 13.11.2008 executed by the second respondent. If possession was really delivered in favour of the petitioner, then it can be said that the settlement deed has been acted upon by the petitioner. The pleadings made by the petitioner relating to possession of the property in question is belied by the recitals contained in the settlement deed dated 13.11.2008 executed by the second respondent. If possession was really delivered in favour of the petitioner, then it can be said that the settlement deed has been acted upon by the petitioner. When the recitals in the settlement deed categorically indicate that the title of the property will transfer only after the life time of the second respondent, it can safely be concluded that no right or title, much less possession of the property has been transferred in favour of the petitioner. Further, immediately after cancelling the settlement deed dated 13.11.2008 by executing the Deed of Cancellation dated 06.11.2014, the second respondent has executed a sale deed in favour of the third respondent thereby further encumbrance has been created in the property in question. Thus, as on date, the third respondent is the owner of the property which was covered in the settlement deed dated 13.11.2008. Therefore, in the above stated peculiar facts and circumstance of the case, I am of the opinion that the decisions relied on by the counsel for the petitioner to contend that the second respondent has unilaterally cancelled the settlement deed dated 13.11.2008 cannot be made applicable to the facts of the present case on hand. In such view of the matter, this Court does not find any reason to interfere with the registration of the cancellation deed dated 06.11.2014 on the file of the first respondent. However, it is made clear that this order will not foreclose the right of the petitioner to approach the competent Civil Court for redressal of his grievance in accordance with law. For all the above said reasons, the writ petition fails and it is dismissed. No costs. Consequently, connected M.P. Nos. 1 and 2 are closed.