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2019 DIGILAW 34 (AP)

Kolli Rajesh Chowdary v. State of Andhra Pradesh

2019-03-07

M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking verbatim the following relief: “...to issue a writ, order or direction, more particularly one in the nature of writ of mandamus declaring the action of the 2nd respondent in registering the Deed of Revocation/cancellation, dated 29.9.2017 vide document No. 4581/2017, dated 3.10.2017 executed by the respondent No. 4, where under she cancelled the gift deed dated 20.9.2014 vide document No. 3876/2014 executed by her in favour of the petitioner herein as illegal, arbitrary, violative of principles of natural justice and contrary to the provisions of the Registration Act, 1908 and the rules made there under including Rule 26(i)(k) and also declare the subsequent registered sale deed document No. 5136/2017, dated 6.11.2017 executed by respondent No. 4 in favour of respondent No. 5 as sham and nominal and that those documents are null and void and not enforceable and pass such other order or orders in the interests of justice.” 2. I have heard the submission of the learned Counsel appearing for the petitioner; and, of the learned Government Pleader for Stamps & Registration appearing for the respondents 1 to 3. 2A. In view of the legal position relied upon by the learned Counsel appearing for the petitioner and the learned Government Pleader, this Court is of the considered view that no notice is necessary to the non-official respondents 4 and 5; and, that the writ petition can be disposed of having regard to the submissions of the learned Counsel appearing for the petitioner and of the learned Government Pleader. 2B. I have perused the material record. 3. The case of the petitioner, in brief, is this: 'The 4th respondent is the paternal grandmother of the petitioner. The 5th respondent is his aunt, being wife of his paternal uncle. The 4th respondent possessed certain movable and immovable properties of her own. She had settled on the petitioner her immovable property viz., Acs. 3.24 cents of dry land in Sy. No. 255/1 of Muppalla Village, Chanderlapadu Mandal, Krishna District, by executing a registered gift settlement deed, dated 20.9.2014, bearing Document No. 3876 of 2014. The 4th respondent possessed certain movable and immovable properties of her own. She had settled on the petitioner her immovable property viz., Acs. 3.24 cents of dry land in Sy. No. 255/1 of Muppalla Village, Chanderlapadu Mandal, Krishna District, by executing a registered gift settlement deed, dated 20.9.2014, bearing Document No. 3876 of 2014. The said gift settlement deed was executed out of love and affection she had for the petitioner, who is the son of her elder son, and with a view to provide the said property for his livelihood. The gift was accepted and the possession of the property was delivered to the petitioner on the same day. Thereafter, the petitioner made an online application, on 9.5.2015, before the 3rd respondent and paid the requisite fee and requested for mutation of the said property in his name in the revenue records and for issuance of pattadar pass book. The same was acknowledged vide a Receipt No. 3310848. Since the date of the gift settlement deed, the petitioner is in continuous possession and enjoyment of the above said property covered by the said deed. In the absence of assured irrigation sources to the said land, the petitioner used to raise only one crop per year depending upon the monsoon. On the suggestion of the neighboring ryots, he got established a bore-well in the land to enable him to raise two crops per year. In order to meet the expenses for establishing the bore-well and the submersible motor etcetera, he had applied for an Encumbrance Certificate. The same was received, on 25.1.2019. He was surprised to notice that the 4th respondent, having executed a deed of cancellation, dated 29.9.2017, registered the same, on 3.10.2017, and revoked the gift settlement deed, dated 20.9.2014, executed by her in favour of the petitioner. The petitioner also noticed that, after execution of such cancellation deed, she had further executed a sale deed, dated 28.10.2017, in favour of the 5th respondent and registered it, on 6.11.2017. Since the property in question was transferred in favour of the petitioner with absolute rights by the 4th respondent by executing the registered gift settlement deed, she has no right to execute the deed of cancellation either cancelling or revoking the gift settlement deed executed by her in favour of the petitioner. Since the property in question was transferred in favour of the petitioner with absolute rights by the 4th respondent by executing the registered gift settlement deed, she has no right to execute the deed of cancellation either cancelling or revoking the gift settlement deed executed by her in favour of the petitioner. The reasons stated by the 4th respondent in the revocation deed/deed of cancellation to the effect that possession of the above said property was not given to the petitioner and that he had got the gift settlement deed registered in his name by deceiving her and that he did not fulfill the word given to her are all false. The gift under the gift settlement deed is not a conditional gift. Hence, the gift settlement deed executed by the 4th respondent in favour of the petitioner cannot be cancelled on the alleged grounds mentioned in the deed of revocation or deed of cancellation. However, the 4th respondent cancelled the gift settlement deed executed in favour of the petitioner with a mala fide intention. Under the gift settlement deed, valuable rights in respect of the property covered by the said deed had accrued to the petitioner. The donor has no right to revoke the gift, once the property is gifted under a registered deed. As per settled legal position, unilateral cancellation of sale deeds and other documents transferring or alienating the property is impermissible. Unless the parties to the earlier deed consent for cancellation of the deed and the beneficiary under the deed joins as a party to the deed of cancellation, the deed of cancellation cannot be registered. The relevant procedure is prescribed under Rule 26(i)(k)(i) of the rules framed under the Registration Act, 1908. The said procedure is not followed by the 2nd respondent before registering the deed of cancellation executed by the 4th respondent. For all the reasons stated, the deed of cancellation cancelling the gift settlement deed executed by the 4th respondent in favour of the petitioner is null and void. Hence, the present writ petition is filed.' 4. Learned Counsel for the petitioner reiterated the pleader case of the petitioner, which is already stated supra, in detail. For all the reasons stated, the deed of cancellation cancelling the gift settlement deed executed by the 4th respondent in favour of the petitioner is null and void. Hence, the present writ petition is filed.' 4. Learned Counsel for the petitioner reiterated the pleader case of the petitioner, which is already stated supra, in detail. His main contention is that the deed of cancellation/revocation, dated 29.9.2017, executed by the 4th respondent cancelling/revoking the gift settlement deed, dated 20.9.2014, executed by her in favour of the petitioner was one executed unilaterally and the same cannot be registered by the District Registrar/Sub-Registrar concerned and, therefore, the registration of the cancellation deed by the 2nd respondent is not valid in law and that the cancellation deed or revocation deed is null and void. 4A. Learned Counsel placed reliance on the decision of the High Court of judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Ediga Chandrasekhar Gowd and another v. State of Andhra Pradesh and others, 2017 (4) ALD 12 , wherein the entire law on the point was analysed having regard to the provisions of law and the precedents. 5. Before proceeding further, it is necessary to note the legal position obtaining. A Full Bench of the then High Court of Andhra Pradesh in Yanala Malleshwari and others v. Ananthula Sayamma and others, 2006 (6) ALD 623 (FB), had held that unilateral cancellation of sale deeds can be done and they can be registered without notice to the executant by the District Registrar/Sub-Registrar. Since the State perceived that this judgment would create lot of complications to the holders of the land and that they could be exposed to problems created by their transferors by unilateral cancellation of the sale deeds and other documents transferring or alienating property executed by them, it introduced Rule 26(i)(k)(i) by way of notification, dated 29.11.2006. The relevant portion of the said rule reads as under: “26(i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules shall have been complied with, for instance... ............. The relevant portion of the said rule reads as under: “26(i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules shall have been complied with, for instance... ............. (k)(i) The registrating officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale: Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provisions of law.” A challenge was made to the validity of the said rule on the ground that it is ultra vires the provisions of the Registration Act, 1908. However, the said challenge was rejected by a Division Bench of the said Court in Kaitha Narasimha v. The State of Government of A.P. rep., by its Principal Secretary, Revenue Department, 2015 (8) MLJ 769 . The Division Bench held that the rule merely incorporates one of the facets of the rules of natural justice in the procedure laid down for registration of cancellation deed of previously registered document and is intended to ensure that a duly registered sale deed is not cancelled without the executant and claimant getting an opportunity to contest the registration of cancellation deed and that the said rule does not have the effect of taking away the right of the executant of cancellation deed and only seeks to put the executant and claimants of the original document to notice that somebody is seeking cancellation thereof. It is not in dispute that the said rule applies to the gift settlement deed in question. Be that as it may. It is not in dispute that the said rule applies to the gift settlement deed in question. Be that as it may. The judgment in Yanala Malleshwari and others's case (supra), was set aside by the Supreme Court in Thota Ganga Lakshmi v. Government of Andhra Pradesh, 2012 (1) ALD 90 (SC), wherein the Supreme Court opined that there cannot be any unilateral cancellation of a sale deed and mat a party, who wants to cancel a sale deed executed, has to necessarily file a civil suit for its cancellation or seek re-conveyance from the vendee, and that executing a cancellation deed, or getting it registered, is unheard of in law. The Supreme Court also referred to the above said rule and stated that the said rule is consistent with the view of the Court that a cancellation deed can be registered only after a sale deed is cancelled by a competent civil Court after notice to the concerned parties and that in the absence of any declaration by a competent Court or notice to parties, the cancellation deed as well as registration thereof were void & non est and that such transaction are meaningless transactions. 6. From the precedential guidance in the decision of the Supreme Court, it is manifest that there cannot be an unilateral cancellation of registered sale deeds and that a cancellation deed cancelling a sale deed can be registered only after the same is cancelled by a competent civil Court, after notice to the parties concerned, and that in the absence of any declaration by a competent Court or notice to parties, the execution of deed of cancellation as well as its registration are wholly void and non est and such transactions are meaningless transactions. In my opinion, the analogy which the Supreme Court applied to cancellation of sale deed equally applies to the present deed of cancellation by which the 4th respondent cancelled unilaterally, the gift settlement deed executed by her in favour of the petitioner. In the present case, the procedure prescribed in the rule afore-stated has admittedly not been followed and the petitioner was not put on notice by the 2nd respondent before registering the revocation deed/deed of cancellation executed, on 29.9.2017, and registered, on 3.10.2017. 7. Accordingly, the said deed of cancellation/deed of revocation is declared as null and void and that it is of no effect. 7. Accordingly, the said deed of cancellation/deed of revocation is declared as null and void and that it is of no effect. As a sequel to the said finding that the cancellation deed or revocation deed is null and void and further, in view of the settled legal position that no one can convey a better title than what he/she has, it is to be further held that the subsequent sale deed executed by 4th respondent in favour of the 5th respondent is also not valid. 8. Before parting, it is to be noted that the learned Government Pleader, while not disputing the settled legal position, had contended that if the petitioner is aggrieved of the cancellation or revocation deed he has to approach a civil Court and seek the common law remedy for setting aside the same but he cannot approach the writ Court. In the considered view of this Court such a contention needs a mention only to be rejected for the reason that when the cancellation deed or revocation deed unilaterally executed is null and void and that when such transaction is meaningless, it is just and fair to allow the writ petition leaving it open to the executant of the cancellation deed or revocation deed to seek the common law remedy by approaching the civil Court. Hence liberty is reserved accordingly to the non-official respondents. 9. In the result, the writ petition is accordingly, allowed as prayed for. Since this Court did not go into the correctness or otherwise of the contents of the subject cancellation or revocation deed and has set it aside and/or declared it as null and void, having regard to the legal position obtaining, this order shall not preclude the executant of the said cancellation or revocation deed to seek the common law remedy, which the law permits. 10. There shall be no order as to costs. 11. Miscellaneous petitions pending, if any, shall stand closed.