Heard both sides.
2.According to the petitioners, their brothers are the owners of the lands comprised in Survey No.1915 of an extent of 0.32.0 acres, Survey No.1914/1, of extent of 0.19.0 acres, Survey No.1914/2, of an extent of 0.10.5, Survey No.1914/3 of an extent of 0.08.5 acres, in Thenkarai village, Periakulam Taluk, Theni District and they got the same under partition in their family. The petitioners purchased the said properties from the said M.Palanichamy, under a registered sale deed dated 18.06.2007 for valid consideration and the sale deed was registered with the 1st respondent as document No.1331 of 2007.
3.According to the petitioners, at the time of execution of the sale deed, one Mohamed Ali, who was working in the office of the 1st respondent, obtained their signatures in blank papers stating that those signatures were necessary for registration. Later, they came to know that their vendor, Mr.M.Palanichamy, executed a deed of cancellation dated 25.06.2007, cancelling the sale deed executed by him in favour of the petitioners, which was registered as document No.1331 of 2007 and the 1st respondent registered the cancellation deed as document No.1371 of 2007. On the very same day, the petitioners' vendor also executed a settlement deed in favour of his two minor daughters and the same was also registered as document No.1372 of 2007 in favour of the same properties. Therefore, the petitioners sent representation, dated 25.02.2009 to the 1st respondent to validate their sale deed, dated 18.06.2007 and cancelling the cancellation deed and settlement deed. As no action has been taken by the 1st respondent, this writ petition is filed by the petitioners for the relief stated above.
4.Mr.K.Balasundaram, the learned counsel appearing for the petitioners contended that the Sub Registrar should not have registered the cancellation deed as after executing a sale deed, the executant viz., the vendor lost all his rights over the property and hence, cancellation is not valid in law.
5.According to the learned counsel for the petitioners, as per judgment of this Honourable Court reported in 2009(1)CTC 709 in the case of G.D.Subramaniam vs.1.The Sub-Registrar, Office of Konur Sub-Registrar, Sidco Nagar, Chennai-49,
2.P.Shanmugam 3. Mr.B.Dillibabu 4.Mr.B.Vasu., the unilateral cancellation is not valid in law.
6.The learned Special Government Pleader, Mr.Pala Ramasamy, appearing for the 1st respondent, filed the counter affidavit and also the typed set of papers stating that the cancellation deed was executed at the instance of the executant viz., Mr.M.Palanichamy and at that time, the petitioners were present and the Sub Registrar after satisfying himself, by conducting enquiry with the petitioners during the said enquiry, the petitioners expressed no objection for the cancellation of the sale deed executed in their favour by Mr.M.Palanichamy and after getting their consent in writing, admitted the document of cancellation for registration and registered the cancellation deed and the petitioners have also signed as attesting witnesses in that document. Therefore, according to the learned counsel for the 1st respondent with the consent of all the parties, the cancellation deed was registered, which is perfectly valid in law and therefore, the petitioners are not entitled to the relief as prayed for.
7.In this case, it is admitted that under document No.1331 of 2007, the petitioners' vendor, Mr.M.Palanichamy executed the sale deed in favour of the petitioners. Thereafter, he executed the cancellation deed on 25.06.2007 and that was also registered as document No.1371 of 2007. Now the question that arises for consideration is whether the Sub Registrar is justified in registering the said document of cancellation of deed.
8.It has been held by this Court in 2009(1) CTC 709 in the case of G.D.Subramanian vs. The Sub Registrar, Office of Konur Sub-Registrar, Sidco Nagar, Chennai-49 and 3 others that unilateral cancellation of sale deed is not valid and the sale deed can be cancelled by the consent of all the parties and when the cancellation deed is presented for registration with the consent of all the parties, the Registering Officer is bound to register the same and the Registering Officer is obliged to reject and refuse to register a deed of cancellation of a sale unilaterally executed without the knowledge and consent of other parties to the sale deed and without complying with
Section 32-A of the Registration Act.
9.From the above judgment, three principles are emerged -(i): A deed of cancellation can be registered if executed by mutual consent by all the parties;
(ii) the Registering Officer is obliged to reject and to refuse to register a deed of cancellation of a sale deed unilaterally executed without the knowledge and consent of other parties to the sale deed; and (iii) While doing so, the Registering Officer should comply with the provision of 32-A of the Registration Act.
10.In this case, it is made clear from the typed set of papers filed by the 1st respondent that while executing the deed of cancellation by Mr.M.Palanichamy, the petitioners were enquired by the Sub Registrar and they have also given their consent for registering the cancellation deed and also attested in the said document and the petitioners did not file any re-joinder affidavit, repudiating the averments made in the counter affidavit, wherein it has been specifically stated that the petitioners gave their consent during the enquiry and also attested in the cancellation deed. Therefore, it is made clear that the petitioners were aware of the deed of cancellation and they also gave their consent for the same, by sworning through an affidavit before the Sub Registrar and they also signed in the document, as attesting witnesses.
11.In this connection, it is also pertinent to refer to the observations of the learned Judge reported in 2009(1) CTC 709, in the case of G.D.Subramanian vs.The Sub Registrar, Office of Konur Sub-Registrar, Sidco Nagar, Chennai-49 and 3 others, that "A sale is essentially an executed contract, whereby the seller has transferred his title and declared that by means of the execution of the sale deed for lawful consideration, the purchaser has become the owner of the property. Thus it is bi-lateral. No such contact can be cancelled unilaterally by one party, unless such a right has been reserved in the contract itself. There is no specific provision for cancellation of a sale in the Transfer of Property Act,
Section 4 of the said act states that the chapters and sections of the said Act, which relate to contracts shall be taken as part of the Indian Contract Act, Since, a sale is an executed contract,
Section 62 of the Indian Contract Act is applicable which speaks of conditions under which novation, recession and alternative of a contract can take place. In City Bank,N.A v. Standard Chartered Bank and others, 2004(2) CTC, 374 (SC):2004(1) SCC 12, the Hon'ble Supreme Court holds "novation, recession or alternation of a contract under
Section 62 of the Indian Contract Act can only be done with the agreement of both the parties to the contract. But the parties have to agree to set aside the original contract with the new contract or for recession or for alternation"
12.The learned Judge has further observed in para 15 of the judgment that "if the entire scheme of the Act and the rules are analysed, then it would make one to understand without any doubt, that the Registering Officer either on enquiry or without an enquiry, should besides other things, prima facie be satisfied that the document is neither illegal nor void and then to register the same provided the other requirements are satisfied. If the document is ipso facto illegal or void, then, he is not obliged to register the same and instead he should refuse to register the said document.
13.Therefore, as per the judgment of this Court reported in 2009(1) CTC 709, in the case of G.D.Subramaniam vs. The Sub-Registrar, Office of Konur Sub- Registrar, Sidco Nagar, Chennai-49 and 3 others, the cancellation deed was executed with the consent of all the parities.
14.The only difference, in this case, is that the cancellation deed was not jointly executed by the petitioners along with their vendor. According to me, the execution of cancellation deed by the vendor and the vendee of the earlier document is one way of expressing their consent by the vendee and if the vendee expresses the willingness and consent for the cancellation of deed and on that basis, the vendor executed a cancellation deed, it is another way of cancellation deed and it satisfied the requirement contemplated in the judgment noted above.
15.Therefore, in the above reported judgment, it has been held that the Registering Authority is well within his right to accept the document for registration, if both parties are agreed for cancellation of document and executed the cancellation deed and the same can be accepted for registration and by doing so, the Sub Registrar has not done any thing illegal.
16.As states supra, in this case, the petitioners have given their consent, by giving the statement before the Sub Registrar, at the time of registering the cancellation deed and also attested in the document. Therefore, the Sub Registrar has not done anything illegally, in registering the deed of cancellation.
17.As I have held that the Sub Registrar has acted within his power in registering the cancellation deed, the petitioners are not entitled to the relief as prayed for.
18.In fine, the writ petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.
er To
1.The Subordinate Registrar, No.II, Sub Registrar, Office, Periyakulam.