S.Babu, S/O.M.Sundaram, v. Sub Registrar,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.09.2018 CORAM :

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.9339 of 2016 S.Babu ... Petitioner vs.

1. Sub Registrar, Office of the Joint II Sub Registrar, Chengalpet.

2. M.Sundaram.

3. S.Rajendiran.

... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a writ of declaration to declare the cancellation of settlement deed executed by 2nd respondent registered as document No.2258 of 2002 with the 1st respondent 's office and the subsequent settlement deed executed by 2nd respondent in favour of the 3rd respondent on 29.06.2012 vide document no.6869 of 2012 as null and void and further directing the 1st respondent to delete the entries in the book 1 which creates encumbrance over the property. For Petitioner : M/s. S. Sundaresan For Respondents: Mr.P.P.Purushothaman for R1 Government Advocate : Mr. R.G.Annamalai for R2 & R3

O R D E R

The relief sought for in this writ petition is to declare the cancellation of settlement deed executed by the 2nd respondent registered as document No.2258 of 2002 with the 1st respondent's office and the subsequent settlement deed executed by 2nd respondent in favour of the 3rd respondent on 29.06.2012 vide document no.6869 of 2012 as null and void and further directing the 1st respondent to delete the entries in the registers.

2. The learned counsel appearing on behalf of the writ petitioner states that, the father of the writ petitioner Shri.M.Sundaram executed the settlement deed in favour of the writ petitioner on 28.08.2001 in document No.1956 of 2001 on the file of the Sub Registrar Office, Joint -II, Chengalpattu.

3. The learned counsel for the petitioner states that, the settlement deed executed by the father of the writ petitioner was canceled unilaterally by registering the cancellation deed on 05.08.2002. It is contended that, unilateral cancellation of the settlement deed is impermissible under the provisions of the Registration Act. It is also contended that on execution of the settlement deed in favour of the writ petitioner by his father, the title in respect of the property had been transferred in the name of the writ petitioner. Thus the 2nd respondent has no locus standi to execute any other further document in respect of the property which was already settled in favour of the writ petitioner.

4. The legal principles in this regard are also settled and orders are passed by this Court in W.P.No.15624 of 2014 dated 23.04.2018. The relevant paragraphs are extracted here under:- "3.The grievances of the writ petitioner is that the second respondent without any right or authority, on 10.03.2014 under document No.2129 of 2014 and on 19.03.2014 under Document No.571 of 2014 canceled the said settlement deeds executed by the second respondent in the office of the first respondent, which is contrary to law and this Court has elaborately adjudicated the matter and decided such unilateral cancellation is null and void. In this regard, the learned counsel for the writ petitioner cited the judgment delivered in the case of P.A.G.Kumaran Vs. Inspector General of Registration, dated 31.07.2017 reported in 2017 (2) CWC 796.

The relevant paragraph Nos.13 to 16 are extracted below: "13. According to the learned counsel for the petitioner, it is not only based on the judgment of the Apex Court reported in 2014 (4) CTC 572 (SC) (cited supra) that this Court has rendered a finding with regard to the cancellation of settlement deed, in W.P.No.6230 and 6231 of 2011 (cited supra),but also referring to the judgment of the Full Bench of this Court reported in 2011 (2) CTC 1 (cited supra) to show that when once the property is settled, it cannot be over-ruled or ignored that a unilateral cancellation at the instance of the person who has settled the property, can be cancelled, unless and otherwise it establishes fraud or against the public policy.

14. Though it has been vociferously contended by the learned counsel for the third respondent that the deed of cancellation can be done by the respondents 1 and 2 and in view of the judgment of the Full Bench of this Court reported in 2011 (2) CTC 1 (cited supra), as could be seen from paragraphs quoted therein above, it

is no doubt true that the Writ Petition is maintainable, provided there are no disputed questions of fact. In this case, there is clear evidence to show that there are disputed questions of facts, namely that after the property has been settled in favour of the petitioner, under the guise of family dispute, the registration of the property was sought to be cancelled.

15. Though it is not in dispute that the property was purchased by the third respondent, as admitted by the petitioner, there is subsequent development which led to the settlement of the property in favour of the petitioner by the third respondent. Naturally, to avoid any stamp duty, such registration has taken place between the husband and wife and when the dispute arose, it comes to light as to under what circumstances, the property has been settled in favour of one person by the spouse. Since, as narrated by the third respondent in the counter that there are disputed questions of facts, the matter has got to be resolved only before the civil forum. This Court cannot render any finding based on the disputed questions of fact, as the parties will have to let in evidence.

16. In view of the fact that the unilateral cancellation of the settlement deed made by the first and second respondents is bad, this Court declares that the said cancellation of document, namely Deed of Cancellation of Settlement deed, registered as Document No.3328 of 2014, dated 10.11.2014, is illegal and in view of the same, the first and second respondents are directed to remove the entries in the Register and the subsequent transaction, namely settling the property in favour of the son of the third respondent, made pursuant to the unilateral cancellation of settlement deed, is also null and void. All the entries have got to be removed and this has got to be done within one month from the date of receipt of a copy of this order.

This Court makes it clear that this order will not prevent the third respondent from approaching the Civil Court and establish her right over the property in question and if done, the Civil Court shall decide the matter without being influenced by any of the observations made in this writ petition touching on the merits of the matter. As this Court has held that the cancellation of settlement deed is illegal and without jurisdiction, and declared the same as null and void, if any suit is filed, the same has got to be decided by the Civil Court in accordance with law, including the issue of limitation.

cancellation of settlement deed, which is the subject matter of this Writ Petition, this Court expects that the said civil forum to decide the matter as expeditiously as possible, from the date of initiation of such suit, and the matter shall not be adjourned beyond seven working days at any point of time. The petitioner shall co-operate in the trial if such suit is filed."

5. In view of the judgement cited supra, the present writ petition in hand deserves to be considered. The cancellation of settlement deed executed by the 2nd respondent registered as document No.2258 of 2002 with the 1st respondent office and the subsequent settlement deed executed by the 2nd respondent in favour of the 3rd respondent on 29.06.2012 by document No.6869 of 2012 are quashed. The 1st respondent is directed to make necessary entries in all the registers. Writ petition stands allowed. There shall be no order as to costs. pkn Sd/- Assistant Registrar(CS VI) // True Copy// Sub Assistant Registrar To

1. Sub Registrar, Office of the Joint II Sub Registrar, Chengalpet.

+ 1 CC TO THE GOVT. PLEADER, SR 65820 + 2 CCS TO MR.R.G.ANNAMALAI, ADVOCATE SR 65228 + 1 CC TO MR.S.SUNDARESAN, ADVOCATE SR 65062 KR/5/10/18 W.P.No.9339 of 2016