Saji Koduvath, Advocate, Kottayam

PART I

Key Takeaways

• A party to a (void or voidable) document alone need to get it cancelled; other persons can ignore it.
• When the plaintiff cannot establish his title without avoiding an instrument that stands as an insurmountable obstacle, the plaintiff has to seek a declaration.
• A registered deed cannot be unilaterally cancelled by its executant. The only remedy available is to invoke Sec. 31, Sp. Relief Act.
• If a person is aggrieved by a cancellation deed, the remedy open for him is to seek appropriate relief in the civil Court.
• Registrar is not competent to cancel the registered document.
• Does the Registering Authority hold Quasi-Judicial power? No.
• Does the Registrar has duty to see – document is presented in accordance with law? Yes.
• Does the Registrar hold power to desist from registering a document, submitted along with the necessary documents? No.

Cancellation of Sale Deeds and Settlement Deeds

Section 31 of the Specific Relief Act provides for cancellation of deeds by the civil court. The grant of such a decree is discretionary. The court can adjudge an instrument void or voidable, partially or completely. To attract Sec. 31-

• (i) The instrument in question must be a written one.
• (ii) It must be a void or voidable one as against the plaintiff.
• (iii) The plaintiff must have reasonable apprehension that such instrument, if left outstanding, may cause him serious injury.

Cancellation can be equated to Rescission in Contract

A deed of cancellation amounts to rescission of contract. (In contractual matters the term recession is used to denote cancellation.) If it is viewed in the light of Section 62 of the Indian Contract Act, the cancellation (being a recession) must be done bilaterally.

Who can seek Cancellation

Section 31 makes it clear – one can seek Cancellation if –

• the written instrument stands against his interest
• the instrument is void or voidable (or void so far as that person is concerned)
• he has a  reasonable apprehension that the instrument, if left outstanding may cause serious injury to him.

When can a Stranger Seek Cancellation

Section 31 does not give a right to a stranger to the document to sue for cancellation. But, a stranger can seek a declaration as to the instrument (e.g., it is not binding on him on the ground that it casts cloud upon his title), and even consequential relief for cancellation, in a proper case.

When one is NOT PARTY to Document, No Need to Annul by Cancellation

It is held in Y. G. Gurukul v. Y. Subrahmanyam, AIR 1957 AP 955, as under:

• “When a person is not eo-nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree. (Followed in Sankaran v. Velukutty, 1986 Ker LT 794.)

In Usman Kurikkal v. Parappur Achuthan Nair, ILR 2012-3 Ker 343; 2012 3 KHC 89, it is held as under:

• “Plaintiff is neither a party to the sale deed nor a party to the resolution empowering the Board to execute the sale deed. The prayer in the plaint is essentially for a declaration that the sale deed is not valid and binding on the plaintiff. The plaintiff has not sought for a cancellation of the sale deed obviously because he was not an executant thereto. The plaintiff can very well ignore the sale deed and need not seek its annulment as has been held in Sankaran v. Velukutty (1986 KLT 794).”
• See also: SR Suresh Babu v. Beena, 2022 KHC OnLine 196.

The Supreme Court observed in V.  Kalyanaswamy v. L.  Bakthavatsalam, 2020 3 RCR(Civ) 404; 2020 9 Scale 367, as under:

• “Plaintiffs-appellants in OS No. 36 of 1963 were not parties to the suit in 1958 and the compromise in OS No. 71 of 1958 will not bind the appellants.”

Incumbent for the Executant to Seek Cancellation of Sale Deeds

It is held in Chellakannu v. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, that the word “Cancellation” implies that the persons suing should be a party to the document; and that it is incumbent on the executant of the document (for avoiding its binding nature) to seek cancellation of sale deeds, and a prayer to declare the sale deeds as invalid  tantamount to cancellation; and therefore, court fee applicable to cancellation has to be paid. Our Apex Court approved this decision (Chellakannu v. Kolanji) in J. Vasanthi v. N. Ramani Kanthammal, AIR 2017 SC 3813.

Cancellation of alienations in Partition Suits

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that in Partition of property, it is not always necessary for a plaintiff in a suit for partition to seek cancellation of alienations.

Propositions as to Questioning a Deed WHERE ONE is NOT a Party

In Noorul Hoda v. Bibi Rafiunnisa, 1996 (7) SCC 767, our Apex Court held as follows:

• “When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded.” 

In Chellakannuv. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, it is observed as under:

• “12. The word “Cancellation” implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the suit is one for cancellation. In the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the Plaintiff cannot seek for any further relief without setting aside the Sale Deeds.

Where one person is not a party to a deed, following propositions can be laid down:

1. Where a deed is ‘null and wholly void‘ (e.g., unregistered sale/gift), he can simply avoid the deed and advance with other reliefs.
   • Limitation statute will have no application in such cases.
2. If it is not ‘null and wholly void‘, he cannot simply avoid the deed and advance with other reliefs.
   • But, in such cases, it is not mandatory to seek ‘annulment’ of the deed – by ‘setting it aside’ or ‘cancelling it’.
   • It will be sufficient – to resort to “appropriate proceeding”, for avoiding the same, before a court of law, seeking proper declaration or otherwise.
   • It must be done within the limitation period prescribed.
   • In such cases the plaintiff need not pay Court Fee for ‘cancellation’ of a deed; it will be sufficient to pay the fee for ‘declaration’.

Partial or Complete Cancellation

In a proper case it may be possible to cancel a part of the document. But, if it is an indivisible agreement such bifurcation is not possible. It is held in Laxmanlal K. Pandit v. Mulshankar Pitambardas, (1908) 10 BomLR 553 7, as under:

• “Finally, it was urged that even if part of the consideration for the rent note failed, yet part of it should be held not to fail, and to the extent of the part held good relief should be allowed to the plaintiff in this suit. It is, however, clear to us that the agreement was an indivisible agreement. Part of a single consideration for one object was unlawful, and therefore the whole agreement is void under Section 24 of the Contract Act. As was said by Mr. Justice Chitty in Baker v. Hedgecock (1888) 39 Ch. D. 520 it is not possible for the Court to “create or carve out a new covenant for the sake of validating an instrument which would otherwise be void.” The suit is a suit for rent, and is based upon a rent note which is void.”

PART II

Unilateral Cancellation of Title Deeds

Abstract

• A registered deed cannot be unilaterally cancelled by its executant. The only remedy available is to invoke Sec. 31, Sp. Relief Act.
  • Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66 (FB),
  • Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB),
  • KV Sudha Rani v. Vijayawada, Guntu, Tenali, 2008(4) ALD 545,
  • Hayagreeva Farms and Developers, Visakhapatnam, v. Govt. of AP, 2014 (3) ALT 3 : 2014 (2) ALD 250
• If a person is aggrieved by a cancellation deed, the remedy open for him is to seek appropriate relief in the civil Court.
  • Yanala Malleswari v. Ananthula Sayamma, 2006 (6) ALT 523: 2007 (1) CTC 97.
• Registrar is not competent to cancel the registered document.
• Does the Registering Authority hold a Quasi-Judicial power?
  • No. (See: Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767. (Approved in Park View Enterprises v. State Government of Tamil Nadu, AIR 1990 Mad 251.)
• Does the Registrar hold power to desist from registering a document, submitted along with the necessary documents?
  • No. (See: Madras High Court – D. Sachidhanandam v. The Registrar/ Inspector General – 2022, April)
• Does the Registrar has duty to ensure – Document is presented in accordance with law?
  • Yes. (See: Asset Reconstruction Company v. SP Velayutham, 2022-8 SCC 210.)

Person aggrieved by a Cancellation deed has to seek relief in Civil Court

Full Bench of Andhra High Court, in Yanala Malleswari v. Ananthula Sayamma, 2006 (6) ALT 523: 2007 (1) CTC 97, held that an if a person is aggrieved by a cancellation deed, the remedy for hism is to seek appropriate relief in the civil Court. It was observed as under:

•  “26. It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written instrument. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are: the written instrument is void or voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury.
• Insofar as Section 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again, the person who claims the right to property can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff.
• The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration.”

It was also observed as to questioning a cancellation deed as under:

• “We, therefore, hold that whenever a person is aggrieved by a cancellation deed, the remedy is to seek appropriate relief in the civil Court and writ petition is not proper remedy.”

Unilateral Cancellation by Regd. Deed, Stands Against Sec. 31

• Pavakkal Noble John v. Kerala State, 2010 (3) Ker LT 941,
• Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66,
• Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB),
• Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210.

In Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB), the High Court after quoting the aforesaid passage from Yanala Malleswari v. Ananthula Sayamma, it was held as under:

• “15. In view of the principle enunciated in the case cited supra, the finding of the trial Court that the Ex.B1 gift deed executed in favour of the defendant was cancelled is not sustainable. The only remedy available to the donor is to file a suit for cancellation of Ex.B1 gift deed, as provided Section 31 of the Specific Relief Act.”

In Sudhakara Reddy v. Lakshmamma, (supra), the High Court found fault with the lower courts for framing an issue so as to embrace a declaration. The High Court held as under:

• “The plaintiff filed the suit seeking injunction simpliciter. In such circumstances, the trial Court ought not to have framed the issue, which is in the nature of a declaration. The trial Court decreed the suit basing on oral evidence of PWs.1 to 3 and also on a wrong premise that Ex.B.1 gift deed was cancelled by late Gowramma, during her life time.”

The Andhra High Court held in KV Sudha Rani v. Vijayawada, Guntu, Tenali, Mangalagiri UDA, 2008(4) ALD 545, on an analysis of the provisions of the Transfer of Property Act, 1882, and the Registration Act, 1908, that when once the sale deed is executed, the title in the property passes to the purchaser forthwith. The person who seeks cancellation of the registered document has two remedies available to him under law, namely (1) to seek invalidation under Section 31 of the Specific Relief Act, and (2) to seek cancellation following rule 26(k)(i) of the Rules framed by the State of Andhra Pradesh.

• Note: Similar provision that of rule 26(k)(i) of the AP Rules is not in all other States.

It was further held that except those two remedies, no person or authority has the right to unilaterally invalidate a registered document on any ground. (Followed in: Hayagreeva Farms and Developers, Visakhapatnam, v. Govt. of AP, 2014 (3) ALT 3 : 2014 (2) ALD 250.)

Unilateral Cancellation of a Sale Deed Bad in Law

Unilateral cancellation of a deed of sale is bad (Full Bench in Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66; Latif Estate Line India Ltd. Vs Hadeeja Ammal, AIR 2011 Mad 66; KV Sudha Rani v. Vijayawada, Guntu, Tenali, Mangalagiri UDA, 2008(4) ALD 545).  Such a cancellation deed cannot be accepted for registration.

Our Apex Court analysed the Madras decision in Latif Estate Line India Ltd. v. Hadeeja Ammal, in the following words in Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210:

• “41. The Full Bench decision of the Madras High Court in Latif Estate Line India Ltd. Vs Hadeeja Ammal, AIR 2011 Mad 66,  arose out of a controversy as to whether a deed of cancellation of sale can or cannot be accepted for registration. The Full Bench explained the circumstances under which a deed of cancellation, presented by both the vendor and the purchaser, can be accepted. But the Full Bench categorically held that a deed of unilateral cancellation cannot even be accepted for registration.
• This proposition actually goes in support of the contention of the appellant that the Registering Officer has a duty to see whether the document presented for registration has been presented in accordance with law or not. In fact the decision of the Full Bench itself arose out of a writ petition challenging the act of the Registering Authority in allowing the registration of the deeds of unilateral cancellation of sale deeds.”

Cancellation of a deed on the Ground, ‘Fraud’

Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, is an authority on the following mayyers:

• Some irregularity, by itself, cannot result in a fraudulent action of the State Authority;
• Allegations relating to ‘fraud’ are questions of fact which must be pleaded and proved.
• An aggrieved person by registration of a (fraudulent) document is free to challenge its validity before the civil court.

It is held as under:

• “36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the 1908 Act enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the 1908 Act can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the civil court.”

Pleadings on Cancellation of a deed on the Ground, ‘Fraud’

The Supreme Court held in CS Ramaswamy v. VK Senthil, 2022 SCC OnLine SC 1330, as under:

• “7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents – original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation.”

Cancellation of a Regd. deed on Ground, ‘Undue Influence’ – Presumption

In Bellachi v. Pakeeran (2009) 12 SCC 95, our Apex Court held as under:

• “15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence …..
• 16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.”

The Apex Court quoted the following from Afsar Sheikh v. Soleman Bibi, 1976 (2) SCC 142-:

• “4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiff’s mother. The defendant’s father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba.”
• “20. It is well-settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed. is not liable to be reopened in second appeal (Satgur Prasad v. Har Narain Das; Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. ).”
• Bellachi v. Pakeeran (2009) 12 SCC 95 is referred to in: Keshav v. Gian Chand, AIR  2022 SC 678.

Does Registering Authority hold a Quasi-Judicial power?

• No. (Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767.)

In the authoritative pronouncement in Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, our Apex Court held in para 41 as under:

• “Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority.
• The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents.
• He is not expected to evaluate the title or irregularity in the document as such.
• The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908.
• In the case of Park View Enterprises (Park View Enterprises v. State Government of Tamil Nadu, AIR 1990 Mad 251) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition.”

In Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, the Apex Court did not consider whether the executants of a deed can ‘unilaterally cancel’ it. It was held-

• “It is open to the appellant to contend in those (civil court) proceedings that the Extinguishment Deed could not have been unilaterally executed by the Society.”

Does Registrar has duty to see – Document presented in accordance with law?

• Yes. (Asset Reconstruction Co. v. SP Velayutham, 2022-8 SCC 210.)

In Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210, the Supreme Court made the following observation as to Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767.

• 42. …  The decision in Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767, arose out a case where the allotment of a plot made by a cooperative society was cancelled unilaterally by a deed of extinguishment, by the society. The allottee raised a dispute which ended in a compromise but notwithstanding the compromise the allottee raised a dispute under the relevant provisions of the Madhya Pradesh Cooperative Societies Act, 1960. When the dispute was pending, the allottee moved the Registering Officer for the cancellation of the deed of transfer executed in favour of the subsequent purchasers. When the Registering Authority refused to comply with the demand, a writ petition was moved seeking a declaration that the deed of extinguishment and the subsequent sales were null and void. The High Court dismissed the writ petition on the ground that a dispute was already pending before the competent authority under the Cooperative Societies Act. When the order of dismissal passed by the High Court was challenged before this Court, there was a difference of opinion as to whether the issue was directly covered by the decision of this Court in Thota Ganga Laxmi and Another v. Government of Andhra Pradesh and Others, (2010) 15 SCC 206 . Therefore, the matter was placed before a three Judge Bench. While upholding the decision of the High Court, the three member Bench held in Satya Pal Anand (supra) that there was no rule in the State of Madhya Pradesh similar to Rule 26(k)(i) of the Rules issued by the State of Andhra Pradesh under Section 69 of the Registration Act, 1908 and that therefore the decision in Thota Ganga Laxmi (supra) cannot be invoked.
• 43. The decision in Satya Pal Anand (supra) cannot go to the rescue of the contesting respondents, for the simple reason that the writ petitioner in that case, first accepted a compromise and then raised a dispute under the Cooperative Societies Act (which is akin to a civil suit) and thereafter approached the High Court under Article 226 for a declaration, which he could have sought only in the already instituted proceedings. The very fact that Thota Ganga Laxmi was sought to be distinguished on the basis of the express provision contained in the Rules of the State of A.P., would indicate that there is no absolute bar for the High Court to exercise jurisdiction under Article 226.”

Asset Reconstruction Company v. SP Velayutham, (2022) 8 SCC 210

It was a case concerning Government properties. The sale deed came for consideration in the case was executed by a Power of Attorney. The Apex Court said as to the PoA as under:

• “35. Apart from the fact that clause 7 extracted above expressly prohibited the power to encumber, there was also no stipulation authorising S.P. Velayutham to appear before any Registering Officer for the purpose of sale, as an agent.”

The Apex Court upheld the authority of the Sub Registrar observing the following-

• “46. But we are not concerned in this case with the question whether the PoA relied upon by the power agent S.P. Velayutham in the sale deed executed by him, required authentication and whether the Registering Authority committed a blunder in accepting the sale deed presented by him for registration, without verifying the authentication of the PoA or not. We are concerned in this case with the most fundamental question whether the Registering Authority could have turned a blind eye to the fact that the deed of PoA on the basis of which the sale deed was executed as well as presented for registration by S.P. Velayutham contained an express prohibition for the power agent to create an encumbrance on the property, especially in the light of the Rules framed under section 69 of the Act. The decision in Thota Ganga Laxmi, was in a way approved by a 3 ­member Bench in Satya Pal Anand, on the basis of the rules in the State of Andhra Pradesh, showing thereby that statutory rules also play a crucial role. Rajni Tandon is not an authority for holding that the registering Authority has no duty even to verify the presence or absence of a power of sale in the deed of PoA, especially in the light of the rules.”

Finally allowing the appeal the Supreme Court held as under:

• “58. … If the Registering Officer under the Act is construed as performing only a mechanical role without any independent mind of his own, then even Government properties may be sold and the documents registered by unscrupulous persons driving the parties to go to civil court. Such an interpretation may not advance the cause of justice.”

Unilateral Cancellation of SETTLEMENT DEED When there was No Reservation

In Pavakkal Noble John v. Kerala State, 2010 (3) Ker LT 941 (upheld in Santhosh Antonio S. Netto v. Joshy Thomas, 2020-3 Ker LT 408), the Kerala High Court pointed out that the Registrar must refuse to register the cancellation of sale deed executed unilaterally.

In Sreedevi v. The Inspector General of Registration (January, 2020, Kerala High Court), it was found that there was no reservation in the settlement deed for cancellation by the executant unilaterally. Then it was pointed out as under:

• “In such circumstances, the registration of cancellation deed is illegal. Once the subject matter of the settlement deed is conveyed to the donee, the donee becomes the absolute owner. The cancellation of a registered deed executed unilaterally will create impediment in the enjoyment of the property. No doubt, the executant of such deed is having a remedy under the Specific Relief Act to cancel such deed before the Civil Court. But they cannot execute a cancellation deed and cancel the settlement deed executed in favour of the donee.”

The Kerala High Court repeated the above view in SR Suresh Babu v. Beena, 2022 KHC OnLine 196, as regards a settlement deed, in the following words:

• “In the absence of any right for revocation of the deed in the deed itself, unilateral execution of the cancellation deed according to us is bad in law and is legally unsustainable.

Cancellation of SETTLEMENT DEED – Cannot be Challenged by Writ Petition

In the decision of the Madras High Court in D. Sachidhanandam v. The Registrar/ Inspector General (2022, April), a settlement deed was cancelled by the settleor by a registered cancellation deed. It was challenged by the settlee in a writ petition. Dismissing the writ petition  the High Court held as under:

• “The registering authority has no power to desist from registering a document, once it is submitted to him along with the necessary documents, which are mandated under the Act and once the document is properly registered, the registering authority, in the absence of any express provision under the Act or the Rules, is not competent to cancel the registered document.
• The writ petitions, at the instance of the petitioners are wholly misconceived and the writ jurisdiction cannot be invoked seeking cancellation of the respective cancellation deeds and this Court, sitting under Article 226 of the Constitution, cannot issue a writ directing the registering authority to cancel the registered document, when it involves disputed questions of fact between the parties.  Further, the remedy open to the petitioners/aggrieved party is only to file a civil suit before the appropriate jurisdictional court and a writ petition is not maintainable.

See also: Gunmala Jain v. GNCT of Delhi, 2021 SCC OnLine Del 5484.

Cancellation of TRUST DEED – Cannot be Challenged by Writ Petition

In CK Saseendran v. Inspector General of Registration, 2021-6 Ker LT 382, one cancel-deed was registered, cancelling a trust deed. The reason for revoking the trust deed stated in the cancellation deed was that the general body of the Association did not ratify the registration of the trust deed and the general body resolved to cancel the trust deed. The legality of the cancellation deed and its registration was challenged in the Writ Petition.

The High Court accepted the contention of the Respondents that (i) the Registering Officer cannot enquire about the legal validity of a document (as per Rule 67^#* of the Kerala Registration Rules, 1958), and (ii) that the Registering Officer can refuse a document only under Rule 191*^* (read with Rule 67); and that none of such heads/ conditions existed to refuse registration of the cancellation deed.

• ^#* ^{See End Notes- 4}
• *^{*See End Notes- 5}

Pavakkal Noble John v. Kerala State, 2010 3 Ker LT 941 (upheld in Santhosh Antonio S. Netto v. Joshy Thomas, 2020-3 Ker LT 408), was distinguished pointing out that it was a case of cancellation of (i) a sale deed (ii) unilaterally executed without the knowledge and consent of the other parties and without complying with Section 32A of the Registration Act, 1908. The writ petition, CK Saseendran v. Inspector General, was dismissed ‘without prejudice to the petitioners’ right, if any, to take recourse to any legal remedies as may be available in law’.

---

End Notes: 1

Sec.31 of the Specific Relief Act

Sec.31 of the Specific Relief Act reads as under:

• When cancellation may be ordered- (1) Any person against whom a written instrument if void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
• (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

Illustrations

•  (a) A, the owner of a ship, by fraudulently representing her to be seaworthy induces B an underwriter, to insure her. B may obtain the cancellation of the policy.
• (b) A conveys land to B who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him C may obtain the cancellation of the forged instrument.
• (c) A, representing that the tenants of his land were all at Will, sells it to B and conveys it to him by an instrument, dated the 1st January, 1877 soon, after that day. A fraudulently grants to C a lease of part of the lands, dated the 1st October, 1876 and procures the land to be registered under the Indian Registration Act. B may obtain the cancellation of this lease.
• (d) A agrees to sell and deliver a ship to B, to be paid for by D’s acceptance of four bills of exchange, for sums accounting to Rs. 30,000 to be drawn by A or B. The bill are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the Bills. B may obtain the cancellation of all the bills.

End Notes: 2

Section 62, Contract Act reads as under:

• 62. Effect of novation, rescission, and alteration of contract – If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract, need not be performed.

End Notes: 3

Sec. 39, Contract Act says as to ‘putting an end’ to the contract. It reads as under:

• 39. Effect of refusal of party to perform promise wholly – When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

End Notes: 4

Rule 67 of the Kerala Registration Rules

• Rule 67- It forms no part of a Registering Officer’s duty to enquire into the validity of a document [except documents styled as marriage agreement] brought to him for registration or to attend any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below—
  • (a) That the parties appearing or about to appear before him are not the persons they profess to be;
    (b) That the document is forged;
    (c) That the person appearing as a representative, assign or agent, has no right to appear in that capacity;
    (d) That the executing party is not really dead, as alleged by the party applying for registration; or
    (e) That the executing party is minor or an idiot or a lunatic.

End Notes: 5

Rule 191 of the Kerala Registration Rules

• Rule 191. The reasons for refusal will usually come under one or more of the heads mentioned below; which should invariably be quoted as authority for refusal.
• Section 19
  • I. That the document is written in a language which the Registering Officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy.
• Section 20
  • II. That it contains unattested interlineations, blanks, erasures, o/ alterations which in the opinion of the Registering Officer require to be attested.
• Section 21(1-3) and Section 22
  • III. That the description of the property is insufficient to identify it.
• Section 21(4)
  • IV. That the document is unaccompanied by a copy or copies of any map or plan which it contains.
• Rule 42
  • V. That the date of execution is not stated in the document or that the correct date is not ascertainable.
• Sections 23, 24, 25, 26, 72, 75 and 77
  • VI. That it is presented after the prescribed time.
• Sections 32, 33, 40 and 43
  • VII. That it is presented by a person who has no right to present it.
• 43[Section 32A
  • VIIA. That the document is not affixed with the Passport size photographs and impression/impressions of the left thumb or any of the fingers in the absence of left thumb as prescribed in Rule 30A(i) and (ii).]
• Section 34
  • VIII. That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time.
• Note.— ‘Prescribed time’, shall mean the time allowed for presentation under Sections 23, 24, 25 and 26 and not the delay of four months in appearance which may be condoned under the proviso to Section 34, unless the presentant or the executing party concerned applies for extension of the period on proper grounds or takes action under Section 36.
• Sections 34 and 43
  • IX. That the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document.
• Sections 34 and 40
  • X. That the Registering Officer is not satisfied as to the right of a person appearing as a representative, assign or agent so to appear.
• Section 35
  • XI. That execution is denied by any person purporting to be an executing party or by his agent.
• Note.— When a Registering Officer is satisfied that an executant is purposely keeping out Of the way with a view to evade registration of a document or has gone to a distant Place and is not likely to return to admit execution within the prescribed time, registration may be refused, the non-appearance being treated as tantamount to denial of execution.
• Section 35
  • XII. That the person purporting to have executed the document is a minor, an idiot or a lunatic.
• Note.— When the executant of a document who is examined under a commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic, registration may be refused, and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification.
• Section 35
  • XIII. That execution is denied by the representative or assign of a deceased person by whom the documents purports to have been executed.
• Note.— When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the persons interested being let to apply to the Registrar for an enquiry into the fact of execution.
• Sections 35 and 41
  • XIV. That the alleged death of a person by whom the document purports to have been executed has not been proved.
• Section 41
  • XV. That the Registering Officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.
• Sections 25, 34 and 80
  • XVI. That the prescribed fee or fine has not been paid.
  • XVII. That the full additions of all persons executing and of all persons claiming under the document are not given.
  • XVIII. A Kanam demise or a renewal thereof shall be refused registrations if it does not contain the following particulars:
    • (i) The name if any, the description and the extent of each item of holding;
    • (ii) The Government tax payable on each item;
    • (iii) The renewal fee if any paid. If no renewal fee is paid the fact should be stated; and
    • (iv) The settlement pattam, the settlement patta, michavaram, the Jenmivaram and the Jenmikaram in respect of the land or each of the several parcels of land comprised in the holding.
• [Rule 67
  • XIX. That the executing parties do not get the status of married couple as per the document styled as marriage agreement.]

---