The petitioner has filed the writ petition to issue a writ of declaration to declare the Settlement Deed executed by one late Rajendiran in favour of respondents 3 and 4, registered as Document No.687 of 2014 with the 2nd respondent's office, as null and void and further to direct the 1st respondent to delete the entries in the book 1 which creates encumbrance over the property.
2. The Registry has raised a query with regard to the maintainability of the writ petition, stating that the petitioner has already given a petition dated 02.05.2017 to the 1st respondent, the District Collector, to conduct enquiry under Circular No.67, but the order has not yet been passed in the said petition.
3. The learned counsel appearing for the petitioner submitted that the writ petition is maintainable under Article 226 of the Constitution of India to get a declaration that the Settlement Deed executed by one late Rajendran in favour of respondents 3 and 4 as null and void.
4. In support of the above contention, the learned counsel for the petitioner has relied upon the Judgment of the Hon'ble Supreme Court in the case of Thota Ganga Laxmi and another vs. Government of Andhra Pradesh & Others reported in (CDJ 2011 SC 755), wherein the Hon'ble Supreme Court has held as follows:-
“5. In our opinion, there was no need for the appellants to approach the Civil Court as the said cancellation deed dated 4.8.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration if 'A' transfers a piece of land to 'B' by a registered sale deed, then, if it is not disputed that 'A' had the title to the land, that title passes to 'B' on the registration of the sale deed (retrospectively from the date of the execution of the same) and 'B' then becomes the owner of the land. I 'A' wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request 'B' to sell the land back to 'A' but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
6. In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under S.69 of the Registration Act, which states:
“The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed or 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 natural 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 deed 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 provision of law.
7. A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent Court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions”.
5. On a reading of the above Judgment of the Hon'ble Apex Court, it is clear that only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties.
6. In the case on hand, though the petitioner has given a petition before the 1st respondent under Circular 67 to cancel the registration of document, the prayer sought for in the writ petition is for a declaration to declare the very same Settlement Deed as null and void.
7. The Hon'ble Supreme Court of India in the Judgment reported in (2016) 10 SCC 7 (Satya Pal Anand vs. State of Madhya Pradesh and Others) has held that a party aggrieved by registration of a document is free to challenge its validity before a competent Civil Court. The relief sought for in the writ petition is a matter for evidence and unless the parties enter the box and prove their case in accordance with law, a finding cannot be given against the execution of the Settlement Deed. Since the prayer sought for by the petitioner is to declare the Settlement Deed as null and void, the same can be sought only before a competent Civil Court.
8. In such view of the matter, I am of the view that the writ petition is not maintainable and hence, the same is rejected. It is open to the petitioner to either prosecute the petition given to the 1st respondent on 02.05.2017 or to file a Civil Suit to set aside the Settlement Deed.
rg/va 31.07.2017 M.DURAISWAMY, J.
rg/va To
1. The District Collector, Office of District Registrar, Cuddalore.
2. The Sub Registrar, Office of the Joint I Sub Registrar, Cuddalore.
W.P.(SR).No.58109 of 2017 31.07.2017