K. Nazar v. State of Kerala & Others

**WP(C) NO. 2212 OF 2011** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943 WP(C) NO. 2212 OF 2011** ## **PETITIONER/S:** K.NAZAR AGED 48 YEARS S/O.K. KOYA (LATE), BUSINESS, KADEEJA MANZIL,NALAM VEEDU ROAD,, KANNUR. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY,REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 695 001. 2 THE DISTRICT REGISTRAR, KANNUR DISTRICT P.O.THALASSERY. 674 673. 3 SUB REGISTRAR, KANNUR P.O. KANNUR. 670 643. 4 KANIYARAKKAL NADUVILE VEETTIL NAZEEMA D/O.KIZHAKKAYIL KOYAV(LATE), NIJAS, NEAR ST.ANTONY'S CHURCH,OLD ROAD, KANNUR. 670 643. SMT.DEEPA NARAYANAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2212 OF 2011** **2** **P.V.KUNHIKRISHNAN, J -------------------------------------------W.P.(C.) No.2212 of 2011 -------------------------------------Dated this the 11[th] day of November, 2021** ## **JUDGMENT** The above writ petition is filed with following prayers : “(i) Issue a writ of certiorari or such other writ order or direction quashing Ext.P2 as it is illegal and void. (ii) Issue a writ of Mandamus directing the 3[rd] respondent to delete the entry regarding Ext.P2 as an encumbrance over Ext.P1 property. (iii) Grant such other writ or direction as this Honourable Court deems fit in the circumstances of the case.” 2. The petitioner and the 4[th] respondent are the children of Kizhakkayil Koya. Their sisters are Jameela, Zareena, Aysha & Resheeda. Koya was the owner of 15 cents of land and building therein, situated in re-survey No.174/W2/B5 of Kannur Karar desom. The property was acquired by Koya and A.Abdulla Hajee as per assignment deed No.1480/1990. They demolished the old building in the property and constructed a new building. They sold two rooms in the ground floor. The undivided right of Abdulla **WP(C) NO. 2212 OF 2011** **3** Hajee over the property and remaining building was sold to A.T.Muhammed Ashraf, who is none other than the husband of the above mentioned Aysha. On the death of Koya, his undivided half right got vested to his wife Kadeeja and children. Thereafter, the undivided right of Aysha was transferred to the petitioner as per gift deed No.3722/2001 of SRO Kannur. Mother Kadeeja also gifted her undivided right to the petitioner as per gift deed. Zareena also transferred her undivided right in favour of the petitioner as per registered document. As per gift deed dated 9.4.2002, the 4[th] respondent gifted her undivided right in the property to the petitioner and the petitioner accepted the gift. Ext.P1 is the gift deed dated 9.4.2002. According to the petitioner, he mortgaged his right in the property including the right he obtained as per the gift deed executed by the 4[th] respondent and raised loan from a bank producing the original gift deed. Based on Ext.P1 gift deed, the petitioner constructed rooms in 2[nd] and 3[rd] floor of the building. According to the petitioner, he is the absolute owner of the building and land covered by Ext.P1 and the 4[th] respondent lost her right over Ext.P1 **WP(C) NO. 2212 OF 2011** **4** property, because the delivery of property and acceptance of the same was over and it was a Muslim gift. Once the delivery of property is over, the gift is complete in Muslim law is the contention of the petitioner. 3. Subsequently after about 8 years of Ext.P1 gift deed, the 4[th] respondent executed a cancellation deed dated 15.1.2010 as evident by Ext.P2. In Ext.P2, it is stated that Ext.P1 was executed on the understanding that the petitioner will release his undivided right in the joint family property and house therein. According to the petitioner, there was no such understanding. It is the case of the petitioner that even if there is such an understanding, the remedy of the 4[th] respondent is to enforce, the promise specifically and not to execute Ext.P2 cancellation deed. The registration of Ext.P2 is shown as an encumbrance over the property. In the encumbrance certificate, it is shown that there is “Panaya Kaimattam” based on Ext.P2. Ext.P3 is the encumbrance certificate. In such circumstances, this writ petition is filed. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. **WP(C) NO. 2212 OF 2011** **5** 5. The learned counsel for the petitioner reiterated his contentions in the writ petition. The counsel submitted that Ext.P2 is a unilateral cancellation of a gift deed and the registering authority erred in registering the same. The counsel relied the judgment of this Court in **Pavakkal Noble** **John & anr. v. Kerala State & others** [2010 (3) KLT 941] and the judgment in **Santhosh Antonio S.Netto v. Joshy Thomas and others** , [2020 (3) KLHC 278]. The counsel submitted that admittedly, Ext.P2 is a unilateral cancellation of Ext.P1 gift deed and the registering authority erred in registering the same. The counsel also submitted that even though notice is issued to the 4[th] respondent, there is no appearance for the 4[th] respondent and that also shows that the 4[th] respondent is also not pressing the cancellation deed. 6. On the other hand, the learned Government Pleader submitted that the registering authority acted only as per Rule 67 of the Registration Rules (Kerala). She submitted that the registering authority acted strictly in accordance to Rule 67 and registered the document. The Government Pleader also submitted that the registering authority need **WP(C) NO. 2212 OF 2011** **6** not look into the legality of the document and if the conditions in clause (a) to (e) in Rule 67 are complied, the registering authority is bound to register the same. 7. I considered the contentions of the petitioner and the respondents. I perused Exts.P1 and P2. Ext.P1 is a gift deed. Ext.P2 is admittedly, a unilateral cancellation of Ext.P1 gift deed. Ext.P1 is in the year 2002 and the cancellation was in the year 2010. Whether unilateral cancellation of document is possible and whether the registering authority can register such document, is considered by a Division Bench of this Court in **Santhosh Antonio's** case (supra). The relevant paragraph is para 10 of the judgment and the same is extracted hereunder. “10. It was taking into account the said circumstances and also the duties and obligations of a Sub Registrar to verify the documents when the same was presented for registration, learned Single Judge has entered into the conclusive finding that the Sub Registrar has no power to register a cancellation deed, unilaterally executed by the vendor of the sale deed. Evaluation of the provisions discussed above, and construing them harmoniously it is quite unequivocal and clear that the SubRegistrar is not vested with powers to register a cancellation deed unilaterally. Which thus means the Sub-Registrar cannot assume powers which are not conferred under law to do an act adverse to the **WP(C) NO. 2212 OF 2011** **7** interest of the beneficiary of a sale deed, without notice to him / her. It is also well settled that, when any provision of law prescribes a modality to do an Act, it has to be performed in such manner only and in the case on hand, the course open to the appellant was to approach the Civil Court in contemplation of S.31 of the Specific Relief Act. Assimilating the factual and legal situations deduced, we have no reason to think that there is any legal infirmity remaining in the judgement of the learned Single Judge, so as to interfere with the same in an intra Court appeal under S.5 of the Kerala High Court Act. Needless to say, the writ appeal fails, accordingly it is dismissed.” 8. Similarly, in **Noble John's** case also, the same point is considered. The relevant paragraph is para 10 of the judgment and the same is extracted hereunder : “10. I shall now deal with the duty of the SubRegistrar in the matter of registration of a cancellation deed unilaterally executed by the vendor in the light of the above legal position. Under S.7 of the Transfer of Property Act,1882, for a person to become competent to transfer property, two conditions have to be satisfied viz. (1) he has to be competent to contract and (2) he must be entitled to transferable property or he must be authorised to dispose of transferable property not his own. S.32 of the Registration Act, 1908, details the persons who can present documents for registration, who shall be either the person executing the document or his representative or assign or the agent of such a person duly authorised by power of attorney. The provisions of R.191 have to be appreciated in the light of the above provisions. Sub-clause XII of R.191 lays down that the registering officer can refuse registration for the reason that the person purporting to have executed the document is a minor, an idiot or a lunatic. This reason relates to the competency of the **WP(C) NO. 2212 OF 2011** **8** person to contract, which is the 1st condition laid down in S.7 of the Transfer of Property Act. Subclause X of R.191 lays down that the registering officer can refuse registration for the reason that he is not satisfied as to the right of the person appearing as a representative, assign or agent so to appear. This reason relates to sub-sections (b) and (c) of S.32 of the Registration Act and the latter part of condition no. 2 in S.7 of Transfer of Property Act. Therefore essentially, as far as transfer of immovable property is concerned, the Registration Act and Rules are framed in terms of the Transfer of Property Act itself. Therefore I am of opinion that want of capacity to transfer property as stipulated in S.7 of the Transfer of Property Act, should also be a reason for which the Sub-Registrar can refuse registration of a document relating to transfer of property. In fact that is exactly what has been provided for by sub-clause VII of R.191, making it competent for the Sub-Registrar to refuse registration for the reason that the document is presented by a person who has no right to present it. As far as transfer of property is concerned under S.7 of the Transfer of Property Act, 1882 only a person who is entitled to transferable property is competent to transfer property. Under S.32 of the Registration Act, 1908, the document shall be presented by the person executing the document, if he is presenting the document himself. Therefore, if a person, is not entitled to transferable property, he cannot execute a document in respect of transfer of the property and therefore he is not a person competent to present such a document for registration. Under sub-clause VII of R.191 of the Rules, the Sub-Registrar can validly refuse registration of a document if it is presented by a person who has no right to present it. By cancelling a sale deed executed by him earlier, the vendor is actually attempting to retransfer the property to himself, which he cannot do, since he is no longer entitled to that property as the title had already passed to the purchaser on the execution of the sale deed unless the sale deed stipulates otherwise and for becoming entitled to be competent to execute a **WP(C) NO. 2212 OF 2011** **9** document in respect of that property he has to first get the earlier sale deed annulled by a Court of law. On reading of all these provisions together, I am satisfied that a registering authority can refuse registration, if, on a cursory enquiry, it is clear that the person purporting to have executed the cancellation deed is not the person entitled to the property as on the date of execution. This he can easily do by merely (looking at the document and the previous documents registered in respect of the property as per the register available in his office in respect of the property, which would show who is the present owner of the property. S.35 of the Act indicates that such an enquiry is not alien to the powers and duties of the Sub-Registrar. Going by S.34 of the Indian Registration Act and R.67 of the Registration Rules (Kerala), at first blush it may appear that the registering officer cannot enquire into the validity of the document or the right of the executing party to execute the document. But to hold that under no circumstances the registering officer shall enquire into the competency of the person to execute the document and he shall blindly register the document except for the reasons mentioned in R.191,would lead to very disastrous and anomalous results. Take for example a case where a person presents for registration a sale deed executed by him selling the property comprised of the High Court or any Government property for that matter; or an agreement between two persons whereby one agrees to kill a third person for consideration. Is the registering officer bound to register the same? If that is the position of law, then a cancellation deed cancelling any document by any person who has no relation to the property also will have to be registered if the reasons mentioned in R.191 are not available. That cannot be the object of the above said provisions. But that does not mean that the SubRegistrar can make a roving enquiry to decide the validity of the document or the right of the executants to execute the document. A reasonable interpretation commensurate with the object of the Act and Rules **WP(C) NO. 2212 OF 2011** **10** would be that if by reading the document and looking at the previous documents registered in respect of the property he is satisfied that the document cannot be validly executed by the person purporting to have executed the same, he has to refuse to register the same and act in accordance with S.71 of the Act. Therefore, I am of the opinion that by refusing to register a deed of cancellation of a sale deed, the Sub-Registrar is only performing a duty cast upon him by the Registration Act and Rules, notwithstanding R.67 of the Registration Rules (Kerala) and the same is inconsonance with the object of the Registration Act and Rules as elucidated above.” 9. In the light of the above decisions, I think the registering authority is erred in registering the cancellation deed, which is an unilateral action on the part of the donor who has no right to do that, especially because it is a Muslim gift. Admittedly, Ext.P1 is a Muslim gift deed. As per Clause 167 in Mulla's Principles of Mahomaden Law 22[nd] Edition, it is stated that a gift may be revoked by the donor at any time before delivery of possession. Before delivery, there is no completed gift at all. After delivery of possession, gift can be revoked wholly or in part in express terms only through court or by consent of the parties, except in certain cases mentioned in the Mahomaden Law of Mulla. Therefore, the cancellation deed itself seems to be void ab initio. Whatever **WP(C) NO. 2212 OF 2011** **11** that may be, according to me, Ext.P2 is a unilateral cancellation of the gift deed and the same is unsustainable. Moreover, even though notice was issued to the 4[th] respondent, there is no appearance. That itself shows that the 4[th] respondent is also not interested in Ext.P2 cancellation document. Hence, this writ petition can be allowed. Therefore, this writ petition is allowed in the following manner : 1) Ext. P2 cancellation document is quashed. 2) The 3[rd] respondent is directed to do the needful to remove the entry regarding Ext.P2 in the encumbrance over Ext.P1 property. Sd/- **JUDGE** **P.V.KUNHIKRISHNAN** SKS **WP(C) NO. 2212 OF 2011** **12** ## **APPENDIX OF WP(C) 2212/2011** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE GIFT DEED EXECUTED BY 4TH RESPONDENT IN FAVOUR OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE CANCELLATION DEED EXECUTED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE.