Case against subbregistrar –THE HON’BLE MR.JUSTICE S.VAIDYANATHAN    W.P.(MD) Nos.11674 of 2015, 6889, 13297 and 8330 of 2020 and M.P.(MD) No.2 of 2015 & W.M.P.(MD) No.6306 of 2020   W.P.(MD) No.11674 of 2015 full order

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

 

Reserved on 23.12.2020
Pronounced on 19.02.2021

CORAM

THE HON’BLE MR.JUSTICE S.VAIDYANATHAN

 

 W.P.(MD) Nos.11674 of 2015, 6889, 13297 and 8330 of 2020

and M.P.(MD) No.2 of 2015 & W.M.P.(MD) No.6306 of 2020

 

W.P.(MD) No.11674 of 2015

 

R.Sasikala                                                                                  … Petitioner

-vs-

  1. The Inspector General of Registration,

No.100, Santhom High Road,

Pathinapakam, Chennai-600 028.

 

  1. The Sub-Registrar,

O/o.the Registrar,

Thirupathur,

Sivagangai District.

 

  1. R.M.Maruthappan              … Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records relating to the registration of the cancellation of the Settlement Deed executed by the 3rd respondent dated 12.03.2015, registered as Document No.701 of 2015 on the file of the 2nd respondent and quash the same as illegal.

For Petitioner     : Mr.M.Mahaboob Athiff

 

For R1 & R2                    : Mr.K.Sathiya Singh

Addl. Govt. Pleader

 

For R3                     : Mr.R.Vijayakumar

*****

W.P.(MD) No.6889 of 2020

 

Sasikala                                                                                     … Petitioner

-vs-

  1. The Revenue Divisional Officer-cum-

Sub-Collector, Devakottai,

Sivagangai District.

 

  1. Ram Maruthappan              … Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records relating to the impugned order issued by the 1st respondent in Mu.Mu.A1/2219/2015 dated 28.08.2018 and quash the same as illegal.

For Petitioner     : Mr.M.Mahaboob Athiff

For R1                     : Mr.M.Raja Rajan

Govt. Advocate

For R2                     : Mr.G.Prabhu Rajadurai

 

*****

W.P.(MD) No.13297 of 2020

 

Muniyandi                                                                                  … Petitioner

-vs-

  1. The Inspector General of Registration,

100, Santhom High Road,

Chennai-600 028.

 

  1. The District Registrar,

Ramanathapuram District.

 

  1. The Sub Registrar,

Abiramam,

Ramanathapuram District.

 

  1. The Revenue Divisional Officer,

Paramakudi Division,

Ramnad District.

  1. M.Senthur                                            … Respondents

 

(R4 & R5 are impleaded by this Court on 23.11.2020)

Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus to direct the respondents to revoke the settlement deed in Document No.941/2018 dated 05.12.2018 given by petitioner in favour of his son Senthur, by considering his representation dated 28.06.2020 within a time stipulated by this Court.

For Petitioner     : Mr.A.Uthayakumar

For R1 to R4                    : Mr.K.Sathiya Singh

Addl. Govt. Pleader

For R5                     : No Appearance

******

W.P.(MD) No.8330 of 2020

 

Prabadevi                                                                                  … Petitioner

-vs-

  1. The District Registrar,

Office of District Registrar,

(Department of Registration)

Madurai District.

 

  1. The Sub Registrar,

Ezhumalai Sub Registration Office,

Ezhumalai, Madurai District.

 

  1. Ramar                                            … Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus to declare the deed of cancellation dated 07.01.2009 executed by the 3rd respondent and registered on the file of 2nd respondent as Document No.32 of 2009 as null and void and in consequence thereof direct the 2nd respondent to release the deed of partition dated 23.06.2020 registered as Document No.975 of 2020 at once.

For Petitioner     : Mr.B.Sekar

For R1 & R2                    : Mr.K.Sathiya Singh

Addl. Govt. Pleader

For R3                     : Mr.S.Vanchinathan

*****

 

C O M M O N  O R D E R

In all these petitions, a challenge is to the unilateral cancellation of deeds and the short point involved is as to whether Registrars have powers to register the deed of cancellation. The issue has emanated on account of the reason that there are two conflicting judgments on the point.

W.P.(MD) No.8330/2020

In W.P.(MD) No.8330/2020, the petitioner has come forward with this Writ Petition to declare the deed of cancellation dated 07.01.2009 executed by the third respondent and registered on the file of the second respondent as Doc. No.32 of 2009 as null and void and in consequence thereof direct the second respondent to release the deed of partition dated 23.06.2020 registered as document No.975 of 2020 at once.

 

  1. The learned counsel appearing for the petitioner would submit that the property measuring 1 Acre 16 Cents, 1 Acre 16 Cents and a residential building in S.No.176/12C, 190/12 and 176/12B respectively situated in Pappinayakkanpatti Village, Peraiyur Taluk, Madurai District were originally belonged to the third respondent, who is the grandfather of the minor petitioner. The third respondent had developed illicit intimacy with another lady and when it was questioned by the first wife of the third respondent, the third respondent had executed a gift settlement deed on 01.08.1995 in favour of his two minor daughters viz., Ilavarasi and Malar @ Thangamalar vide document No.777 of 1995 and they are in exclusive possession and enjoyment of the said property for which Patta Nos.2076 and 1798 were also issued in their favour.  Thereafter, the said Ilavarasi and Malar @ Thangamalar were given marriage and settled in their matrimonial home.  While so, on 13.09.2005, the said Ilavarasi died leaving behind her husband Mr.Ramar and daughter Prabadevi/the petitioner herein.  Thereafter, on 23.06.2020 the minor petitioner Prabadevi and her maternal aunt Malar @ Thangamalar partitioned their property which was registered as Document No.975 of 2020 on the file of the second respondent.  When the petitioner approached the second respondent to get back the partition deed, the second respondent orally informed that since the third respondent had already cancelled the settlement deed on 07.01.2009 vide document No.32 of 2009, the partition deed cannot be released.  According to the petitioner, the third respondent is not entitled to cancel the settlement deed after four years of the death of the minor petitioner’s mother and it is void abinitio.  Hence, the petitioner has come forward with the present Writ Petition.

 

2.1. The learned counsel appearing for the third respondent submitted that though the properties were given in settlement, he has no other option, but to cancel the settlement deed, on account of the fact that no one is taking care of him in his old age. When he has got powers to settle his properties in the name of other persons without any consideration, he is entitled to cancel the same.

 

2.2. It is not in dispute that the third respondent’s daughter was married to the father of the minor petitioner Prabadevi. The reason for mentioning the name of the parties is that the name of the father-in-law and son-in-law is identical, namely, Ramar.  The mother of minor Prabadevi died and the property is already vested with the minor daughter by means of a settlement deed under Document No.777 of 1995. The third respondent has unilaterally cancelled the document, which has been entertained by the Sub Registrar.

2.3. The third respondent / grandfather of the petitioner submitted that as there is a disputed question of fact, it has got to be agitated before the Civil Court.  This Court is in entire agreement with the third respondent that the Civil Court is competent to decide the issue.  However, as to the question that who has to approach the Civil Court,  this Court is of the view that only the third respondent is entitled to approach the Civil Court and there is no need for the Writ Petitioner to approach the Civil Court. This Court is concerned only with regard to the unilateral cancellation and not with regard to the disputed question of fact.  When a particular document is already entertained and registered, it is for the parties to approach the competent Court and the Competent Court alone is empowered to cancel the settlement deed and the judgment and decree can be registered by the office of the Sub Registrar. In this case, there is no judgment and decree cancelling the settlement deed.

W.P.(MD) No.6889/2020

  1. In W.P.(MD) No.6889/2020, challenging the order passed by the first respondent Revenue Divisional Officer cum Sub Collector, dated 28.08.2018, the petitioner is before this Court with this writ petition.

 

3.1. By the said impugned order, the first respondent had cancelled the settlement deed made in favour of the petitioner by the second respondent, who is none other than the father of the petitioner. Challenging the unilateral cancellation, the petitioner is before this Court, with this writ petition.

W.P.(MD) No.11674 of 2015

  1. W.P.(MD) No.11674/2015 has been filed by the very same petitioner Sasikala, who filed W.P.(MD) No.6889/2020, challenging the registration of the cancellation of the settlement deed executed by the third respondent dated 12.03.2015, registered as Document No.701/2015 on the file of the Sub Registrar.

W.P.(MD) No.13297/2020

  1. W.P.(MD) No.13297/2020 has been filed for a direction to the respondents to revoke the settlement deed in document No.941/2018 dated 05.12.2018 given by the petitioner in favour of his son Senthur, by considering his representation dated 28.06.2020 within the time stipulated by this Court.

 

  1. The Writ Petitioner in W.P.(MD) No.6889 of 2020 submitted that it is the duty of the petitioner to take care of her father and that she will not violate any of the conditions stipulated under the provisions of the Senior Citizens Act. According to her, more than the Statute compulsion, she has got a moral obligation to take care of her father.

6.1. Mr.M.Mahaboob Athiff, learned counsel appearing for the petitioner would submit that the property will not be sold to any third party without the consent of the second respondent/father and in case of sale of the property given by her father, her father will be a witness to the deed of conveyance. Similarly, the father cannot create any third party rights to the property, as the RDO/Tribunal has set aside the cancellation deed. Whether the RDO has got powers to cancel the deed or not, or the Civil  Court alone can do it, is a matter to be decided, if the issue is referred to a Larger Bench.

 

  1. As already stated supra, in all these cases, the petitioners are challenging the unilateral cancellation and also for a direction to revoke the settlement deed made already.

 

  1. When similar issue arose for consideration before this Court in L.Rajendran v. L.Siddharthan and others [2014 SCC Online Mad 12202], this Court held as follows:

“The settlement deed dated 26 February 2003 contains a clear statement to the effect that the settlor has already delivered possession of property to the settlee. In view of delivery of possession and mutation of records, a valid settlement has come into force. It was therefore not open to the settlor to cancel the document unilaterally. The learned Single Judge was therefore perfectly correct in setting aside the cancellation deed. We do not find any reason to take a different view in the matter.”

  1. Recently, in yet another case in P.Rukumani and others v. Amudhavalli and others [2020(1) CTC 241], the Division Bench has held as follows:

“10.We are of the clear opinion that such a relief could not have been sought or granted in writ jurisdiction under Article 226 of the Constitution of India.  The Civil rights of the parties based on relevant evidence can only be determined by a civil Court by a competent Civil Court and not by the Writ Court under Article 226 of the Constitution of India.  Such private rights of the parties cannot be made a subject matter of Writ Jurisdiction.  The Writ Petitions under Article 226 of the Constitution of India lie only against the State or Instrumentality of the State as defined under Article 12 of the Constitution of India.  Therefore, such determination of private civil rights of the parties cannot be made subject matter of writ petition.

 

  1. The act of the Sub-Registrar in such cases will naturally depend upon the determination of the rights of the respective parties once adjudicated by the competent civil Court and therefore prematurely also such writ jurisdiction cannot be invoked, against Sub-Registrar.

 

  1. The Judgment of the Full Bench in Latif Estate Line India Ltd., (supra) relied by the learned counsel for the respondents 1 to 3 Mr.M.Sriram, vide Paragraph No.59 quoted above, has not laid down that in such cases writ jurisdiction can be invoked or is an appropriate remedy to be invoked. On the contrary, Clause (iv) of Paragraph 59 quoted above clearly stipulates that the complete and absolute sale can be cancelled at the instance of the transferror only by taking course by way of Civil Court by obtaining Decree of cancellation of Sale Deed on the ground of fraud or other valid reasons. This judgment of the Full Bench, with great respects, strengthens the view, which we have taken above.

 

13.On the contrary, the judgment relied by the learned counsel for the appellants in the case of Satya Paul Anand v. State of Madhya Pradesh and others, (supra) in Paragraph No.40 again clearly stipulates the view that aggrieved party in such cases can approach only the civil Court.  Therefore, we are of the clear and fortified view that the Writ Petition in this case by the respondents/writ petitioners was a misconceived remedy and prematurely invoked by them seeking the cancellation of the Cancellation Deed, dated 20th September 2007 and the learned single Judge has erred, with great respects, in granting the relief.

 

14.Therefore, in our opinion, the present Writ Appeal deserves to be allowed and the same is accordingly allowed and the Order of the learned single Judge, dated 07.09.2017 is set aside. No costs.”

 

  1. In Latif Estate Line India Ltd., v. Hadeeja Ammal and others, [2011 (2) CTC 1], the Full Bench observed as under:

“59.After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion:

(i) A Deed of cancellation of a sale unilaterally executed by the transferror does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred.  Hence, such a deed of cancellation cannot be accepted for registration.

 

(ii) Once title to the property is vested in the tranferee by the sale of the property,it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties.  The proper course would be to re-convey the property by a Deed of Conveyance by the transferee in favour of the transferor.

 

(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the Deed, then such instrument or sale can be cancelled by a Deed of cancellation with the consent of both the parties on the ground of non-payment of consideration.  The reason is that in such a Sale Deed, admittedly, the title remained with the transferor.

 

(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a Decree of Cancellation of Sale Deed on the ground inter alia of fraud or any other valid reasons.

 

  1. Having regard to the conclusions arrived at as aforesaid, the questions referred are answered accordingly. The Appeals are referred back to the concerned Court for deciding the case on merits.”

 

  1. After giving a thoughtful consideration to the averments as well as judgments, the following two issues arise for consideration:

 

(i) Whether the Registrar has got powers to accept the deed of cancellation, register it and nullify the deed of conveyance except the one where a transfer is made by way of sale with condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor;

 

(ii) Who has to approach the civil Court, namely, whether the transferror, who has executed the deed or the transferee.

 

  1. Insofar as the issue No.2 is concerned, if the issue No.1 is answered in an affirmative tone that the Registrars have no powers to register the deed of cancellation in the absence of any judgment and decree, then it is only the transferror, who can approach the civil Court for cancellation.

 

  1. It is pertinent to mention here that when a Registrar, who has got powers under the Registration Act, refuses to exercise it, then Writ is maintainable. Similarly, when he has no jurisdiction to exercise his power, but exercised it, then also Writ is maintainable. In the present cases on hand, it is no doubt true that the civil Court alone has got powers to decide about the unilateral cancellation at the instance of transferror.  When the Registrar has no power to unilaterally cancel it, then, the exercise of such power is beyond the Statutory powers and hence, Writ is maintainable.

 

  1. The Sub Registrars can, at the maximum make an endorsement that the deed of cancellation will be registered based on the outcome of any civil dispute that may be raised by the transferror and the judgment and decree will be taken note of by registering the deed of cancellation, cancelling, the deed of conveyance.  In case of creation of any third party rights on the property in consonance with the provisions of the Registration Act and the rules framed thereunder, he can also keep a record of those property, so that the subsequent party, who comes for registration to avoid third party rights having created, can be informed about the litigation pending before the appropriate forum, for which, the transferror will have to inform the Sub Registrar’s office about the pendency of the suit and the respective Sub Registrars shall also be made as a party in the civil suit, so that the Sub Registrar cannot take a stand that they are not aware of the pendency of the suit. I agree with the view of the Full Bench rendered in Latif Estate’s case (supra)

         

  1. It is brought to the notice of this Court that after getting properties settled in the name of children, several Senior Citizens are thrown to streets. This Court feels it appropriate to extract the provision of Section 23 of the Maintenance and Welfare of Parents & Senior Citizens Act, 2007, which reads as follows:

“23. Transfer of property to be void in certain circumstances. – (1) where any senior citizen who, after commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferror and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferror be declared void by the Tribunal.”

 

  1. From the above, it is very clear that when the transferror conveys the property by means of gift or settlement or otherwise, there shall be a clause in the said deed to ensure that the transferee provides basic/physical needs to the tranferror. If the transferee fails/refused such amenities and physical needs, the said transfer of property shall be deemed to be made by fraud or coercion or undue influence. At the instance of the transferror, the said deed of conveyance could be declared as void by the Tribunal.  The 2000 Act receives assent of the President of India on 29.12.2007.

 

  1. Section 3 of the Senior Citizens Act is very clear that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Senior Citizens Act or in any instrument having effect by virtue of any enactment other than this Act. This clause provides that no Act to have overriding effect on the provisions of any other Act, which are inconsistent with the provisions of the present Act.

 

  1. Thus, the Sub Registrar/Registrar, who registers a deed of conveyance, must ensure that conditions stipulated in Section 23 (supra) is incorporated in the said deed. If it is absent, then, the Senior Citizens cannot approach the Tribunal to get the deed as void. Even otherwise there are provisions under the Senior Citizens Act for prosecution for abandoning the senior citizens. If the above condition is incorporated in the deed or gift or settlement or otherwise, automatically, the transferee will not be in a position to sell the property and in case of sale, the buyer will be at risk to buy such property.
  2. As long as the property with retention of life estate vests with the transferee, senior citizens’ rights are protected and in case, the transferee wants to sell the property, the signature of the transferror can be obtained as a witness in the subsequent conveyance. Based on the provisions of Section 23 of the Senior Citizens Act, if senior citizen is not going to take care and without incorporating, under the blind affection, they are going to convey the property, certainly, they will be on streets and his remedy will be only to prosecute the children and who needs to face the punishment in Chapter VI of the 2007 Act.

 

  1. This Court makes it very clear that those who are responsible to take care of the senior citizens leaves them in lurch shall be imprisoned in terms of Section 24 and imposition of fine is only secondary and the cases filed by Senior Citizens will have to be heard on a day to-day basis without adjourning it beyond seven working days. Even though the word used is “either” in Section 24 of the said Act, the imprisonment should be made mandatory. Even though the discretion is given to the Magistrates to try the offence and impose punishment, unless sword of Damocles is hanging on the youngsters, there will be lots of old age home mushrooming and solely the crime will be on the rise in the old age home.

 

  1. The issue as to whether who has to approach the Civil Court is a matter of secondary concern and from this date, any property that was already conveyed to the children by means of deed of settlement / gift or otherwise, the Registering Officer mush insist the signature of Senior Citizens, if the property is going to be dispossessed of by the transferee. He must give in writing the method by which he/she is going to take care of Senior Citizen. Such signature should be possessed before the Registering Authority and the Registering Authority shall forward to the jurisdictional Tribunal for the purpose of maintaining records and upload in the website. If there is any violation and a complaint is given, the transferee will taste the jail food.

 

  1. At the same time, it is relevant to point out that in case a property is settled by way of transfer in favour of transferee, when the transferor was not a senior citizen, then he cannot take a shelter under the provisions of the Senior Citizen Act, contending that after transfer of the property, he became a senior citizen and he was left at lurch, as everyone born in this world will have to cross the old age.

 

  1. The point for reference is that even though the Full Bench had clarified the issue in Latif Estate’s case and the relevant paragraphs were extracted supra, it is seen that there was a contrary view taken in yet another case reported in 2020 (1) CTC 241 (supra), holding that the aggrieved party can approach only the civil Court. I reiterate that Registrars have no power to register the deed of cancellation in the absence of production of the judgment and decree of the Competent Civil Court by the transferor to cancel the deed.

 

  1. In view of the aforesaid conflicting judgments, Registry is directed to place these petitions before the Hon’ble Chief Justice for constitution of a Larger Bench to decide the issue as to whether a Sub Registrar has got powers to cancel the deed unilaterally. In other words, it is reiterated for the sake of brevity that the issue now to be decided by the Larger Bench and referred to the Larger Bench is whether the Registrar has the power to accept the deed of cancellation to nullify the deed of conveyance made earlier, when the deed of conveyance has already been acted upon by the transferee.

 

  1. In my considered opinion, as a larger interest is involved in these cases under reference, the Judges, who were parties to the afore cited judgments, may not be a party to the Larger Bench to be constituted by the

S.VAIDYANATHAN.J.,

rr/ar

Hon’ble Chief Justice, so that an independent decision can be formulated on the point under reference, in consonance with the judgment of the Hon’ble Supreme Court in the case of Balaji Baliram Mupade and another vs. The State of Maharashtra and Others [Civil Appeal No.3564 of 2020 (SLP(C) No.11626 of 2020), decided on 29.10.2020, (though it was rendered in a different context), wherein it was held as under:

“14. We have little option in the aforesaid facts of the case but to set aside the impugned order and remit the matter back for reconsideration of the High Court on merits, uninfluenced by the reasons which have been finally disclosed in respect of the impugned order.

 

  1. Needless to say, the matter would be taken up by a Bench not consisting of the Members who constituted the Bench earlier.”

         

 

19.02.2021

Index: Yes / No

Internet: Yes / No

rr/ar

 

 

 

 

 

PRE-DELIVERY ORDER IN

 W.P.(MD) Nos.11674 of 2015, 6889, 13297 and 8330 of 2020

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