Madhusoodhanan P.M. v. Sub Registrar, Karikode, Thodupuzha; Village Officer, Vannappuram; Madhavan P.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **W.P.(C)No.14052 OF 2020(F)** ## **PETITIONER:** **MADHUSOODHANAN P.M AGED 62 YEARS S/O.MADHAVAN.P.K., PUTHENPURAYIL HOUSE, KALIYAR P.O., VANNAPPURAM, IDUKKI DISTRICT-685 607.** **BY ADVS.** **SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.P.BALAN (VYTTILA)** ## **RESPONDENTS:** |**1**|**THE SUB REGISTRAR,**| |---|---| ||**SUB REGISTRAR OFFICE, KARIKODE, THODUPUZHA,**| ||**POOMALA ROAD, IDUKKI DISTRICT-685 585.**| |**2**|**THE VILLAGE OFFICER,**| ||**VANNAPPURAM VILLAGE OFFICE, VANNAPPURAM, KALIYAR**| ||**ROAD, IDUKKI DISTRICT-685 607.**| |**3**|**MADHAVAN.P.K.,**| ||**AGED 92 YEARS**| ||**S/O.LATE KUNJAN, PUTHENPURAYIL HOUSE, KALIYAR**| ||**P.O., VANNAPPURAM, IDUKKI DISTRICT-685 607.**| ||**R3 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT**| ||**SMT VIDHYA A.C- GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2411-2020, THE COURT ON 15-12-2020 DELIVERED THE FOLLOWING:** W.P.(C)No.14052 of 2020 2 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 of the Sub Registrar Office, Thodupuzha. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Sub Registrar, Karikode to strike off and remove the entries of Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 from the register in relation to the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village; a writ of mandamus commanding the 1[st] respondent to issue encumbrance certificate without mentioning Ext.P4 cancellation deed No.945/1/ 2020 dated 19.05.2020 with respect to the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village; and an order declaring that the petitioner is the absolute owner in possession of 11.33 ares of land in Sy.No.1459/1/1622 of Vannapuram Village and building situated therein, by virtue of Exts.P1 to P3 documents. 2. On 13.07.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 and 2. This W.P.(C)No.14052 of 2020 3 Court issued urgent notice by speed post to the 3[rd] respondent, returnable within ten days. This Court granted an interim order directing the 2[nd] respondent Village Officer not to effect mutation with respect to the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village, in favour of the 3[rd] respondent, by virtue of Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 of the Sub Registrar Office, Karikode, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 4. The pleadings and materials on record and also the submissions made by the learned counsel on both sides would show that the 3[rd] respondent father executed Ext.P1 settlement deed No.2358/1/2019 dated 25.09.2019 of the Sub Registrar Office, Karikode, in favour of the petitioner son, with respect to 11.33 ares of land in Sy.No.1459/1/1622 of Vannapuram Village, with a residential building situated therein. In Ext.P1 settlement deed, there occurred certain mistakes in the description of the southern W.P.(C)No.14052 of 2020 4 and northern boundaries of the property and also its survey number. The 3[rd] respondent executed Ext.P2 rectification deed bearing No.2642/1/2019 dated 31.10.2019 of the Sub Registrar Office, Karikode. In terms of Exts.P1 and P2, the petitioner effected mutation of the property in his name and remitted land tax on 19.10.2019, as evidenced by Ext.P3 tax receipt. On the strength of Exts.P1 and P2 deeds, the petitioner became the absolute owner in possession of the property having an extent of 11.33 ares. While so, the 3[rd] respondent executed Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 of the Sub Registrar Office, Karikode, which is one executed unilaterally by the 3[rd] respondent. On coming to know about the registration of Ext.P4 cancellation deed, the petitioner approached the 2[nd] respondent Village Officer. From the 2[nd] respondent, the petitioner came to know that the 3[rd] respondent has already approached the 2[nd] respondent for getting mutation of the property pursuant to Ext.P4 cancellation deed. The petitioner submitted Ext.P5 representation dated 09.06.2020 before the 2[nd] respondent, pointing out that the application made by the 3[rd] respondent for mutation, on the strength of Ext.P4 cancellation deed, is liable to be rejected. W.P.(C)No.14052 of 2020 5 5. Admittedly, on the strength of Ext.P1 settlement deed bearing No.2358/1/2019 dated 25.09.2019 and Ext.P2 rectification deed bearing No.2642/1/2019 dated 31.10.2019 of the Sub Registrar Office, Karikode executed by the 3[rd] respondent father, the petitioner son became the absolute owner in possession of the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village and the building situated therein. The petitioner effected mutation of the property in his name and remitted land tax on 19.10.2019, as evidenced by Ext.P3 tax receipt. Thereafter, the 3[rd] respondent father cancelled Exts.P1 and P2 deeds by unilaterally executing Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 of the Sub Registrar Office, Karikode. 6. The 3[rd] respondent is a senior citizen aged 92 years. The learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent would point out that, the 3[rd] respondent father is presently residing with the petitioner son, in the residential building situated in the property in question. 7. As per sub-section (1) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, where any W.P.(C)No.14052 of 2020 6 senior citizen who, after the commencement of the said 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 transferor 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 transferor be declared void by the Maintenance Tribunal constituted under Section 7 of the said Act. 8. In **Subhashini v. District Collector, Kozhikode and others [2020 (5) KHC 195]** a Full Bench of this Court held that the condition as required under sub-section (1) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking sub-section (1) of Section 23 of the Act and proceeding on a summary enquiry. W.P.(C)No.14052 of 2020 7 9. In the instant case, the condition as required under subsection (1) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for provision of basic amenities and basic physical needs to the 3[rd] respondent father, who is a senior citizen, has not been expressly stated in Ext.P1 settlement deed bearing No.2358/1/2019 dated 25.09.2019 of the Sub Registrar Office, Karikode executed in favour of the petitioner son. 10. Section 32A of the Registration Act, 1908 deals with compulsory affixing of photograph, etc. As per Section 32A, every person presenting any document at the proper registration office under Section 32 shall affix his passport size photograph and fingerprints to the document. As per the proviso to Section 32A, where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document. 11. In **Pavakkal Noble John and another v. Kerala State and others [2010 (3) KHC 879]** , this Court held that, if for transfer of ownership of immovable property photographs and fingerprints of each buyer and seller of the property are mandatory W.P.(C)No.14052 of 2020 8 under the proviso to Section 32A of the Registration Act, by the same coin, cancellation deed of a sale deed being essentially a retransfer of the immovable property back to the vendor should also necessarily contain the photograph of both the parties to the sale deed, without which the cancellation deed cannot be validly registered. Before this Court it was argued that the said Section is applicable only when a person executes a sale deed for transfer of immovable property. This Court noticed that, the words used therein are 'where such document relates to transfer of ownership of immovable property', which is wide enough to include all documents relating to transfer of immovable property and not confined to sale deeds for transferring immovable property. A cancellation deed cancelling a sale deed is certainly a document relating to transfer of immovable property and would come squarely within the said proviso. 12. In **Pavakkal Noble John** this Court was dealing with two writ petitions, namely, W.P.(C)Nos.34367 of 2009 and 37150 of 2009. In W.P.(C)No.34367 of 2009, the 4[th] respondent, who is none other than the uncle of the writ petitioner, executed and got registered Ext.P1 sale deed dated 09.01.1996 assigning the W.P.(C)No.14052 of 2020 9 properties described in the schedule to the said deed in favour of the petitioner. After more than 13½ years of execution of the sale deed, the 4[th] respondent executed and got registered Ext.P3 cancellation deed dated 01.08.2009, cancelling Ext.P1 sale deed, on the ground that the petitioner has not paid the balance sale consideration agreed upon, although in Ext.P1 sale deed he had acknowledged receipt of the full sale consideration mentioned therein, that too after suffering an injunction order in O.S.No.84 of 2009 filed before the Munsiff’s Court, Kuthuparamba, by the writ petitioner, against interfering with his peaceful enjoyment of the property. In the writ petition, the petitioner challenged the registration of Ext.P3 deed of cancellation of sale deed on the ground that the 3[rd] respondent registering officer ought not to have registered the same under law. In W.P.(C)No.37150 of 2009, the 3[rd] respondent, who executed and got registered Ext.P1 sale deed on 28.10.2008, got Ext.P2 cancellation deed dated 24.11.2009 registered, on the ground that the writ petitioner has not paid the sale consideration and the property has not been given possession of, to the writ petitioner, although in Ext.P1 sale deed it has been specifically admitted by the 3[rd] respondent to the contrary. The W.P.(C)No.14052 of 2020 10 action of the 2[nd] respondent registering officer in registering the cancellation deed was assailed on the ground that, by registering Ext.P2 cancellation deed the registering officer is practically reversing or removing Ext.P1 sale deed, for which he has no power, since he has become functus officio on registration of Ext.P1 sale deed. 13. In **Pavakkal Noble John** this Court held that Section 32A of the Registration Act has been incorporated in the Registration Act to prevent misuse of the provisions of the Act and the Rules. Non-compliance with Section 32A is certainly a very valid reason for the Sub Registrar to refuse registration of a cancellation deed relating to transfer of immovable property, as is clear from clause VIIA of Rule 191 of the Kerala Registration Rules. The Sub Registrar is therefore duty bound to insist upon the photograph and thumb impression of both parties to be included in the cancellation deed as well, as mandated by the proviso to Section 32A for registration of a cancellation deed of a sale deed and if the cancellation deed does not contain the photograph and thumb impression of both parties, he is statutorily bound to refuse registration of that document. The thumb impression of a person W.P.(C)No.14052 of 2020 11 cannot be obtained in a document without his consent and his photograph cannot be validly affixed in a document without his consent. Therefore a cancellation deed of a sale deed can be registered only with the consent of both the original seller and the buyer and not unilaterally by the seller alone. For this reason also the registration of a cancellation deed unilaterally cancelling a sale deed by the seller, without the consent of the purchaser, is to be refused by the Sub Registrar. 14. In **Pavakkal Noble John** this Court concluded that, the Sub Registrar is legally obliged to reject and refuse to register a deed of cancellation of a sale unilaterally executed without the knowledge and consent of the other parties to the sale deed and without complying with Section 32A of the Registration Act, 1908. This Court directed all Sub Registrars of the State to see that a deed of cancellation of sale is registered only if executed with mutual consent of all parties to the sale, complying with the provisions of the Registration Act and the Kerala Registration Rules, including Section 32A of the Registration Act. This Court allowed the writ petitions and quashed the registration of the deed of cancellation dated 01.08.2009, registered as document No.2830 of W.P.(C)No.14052 of 2020 12 2009 of the Sub Registrar Office, Uliyil, produced as Ext.P3 in W.P. (C)No.34367 of 2009, and the registration of the deed of cancellation dated 24.11.2009, registered as document No.2099 of 2009 of the Sub Registrar Office, Anchalummood, produced as Ext.P2 in W.P.(C)No. 37150 of 2009. The concerned Sub Registrar was directed to cancel, strike off and remove the said deeds from the registers maintained by them in respect of the respective properties, which shall not be included in the encumbrance certificates to be issued in respect of those properties. For completing the formalities, the 4[th] respondent in W.P.(C)No.34367 of 2009 and the 3[rd] respondent in W.P.(C)No.37150 of 2009 were directed produce the cancellation deeds executed by them before the concerned Sub Registrar, for cancelling the registration within two weeks from the date of receipt of a communication from the Sub Registrar directing production, which the Sub Registrar shall issue within two weeks. However, the Sub Registrar shall not wait for such production for making appropriate changes in his register, as directed above. 15. In **Thota Ganga Laxmi v. Government of Andhra Pradesh [(2010) 15 SCC 207]** , the question that came up for W.P.(C)No.14052 of 2020 13 consideration before the Apex Court was as to whether a cancellation deed can be registered only when the sale deed is cancelled by a competent court and that too after notice to concerned parties. In the said decision, the Apex Court was dealing with a Civil Appeal arising out of the judgment of the Andhra Pradesh High Court dated 08.11.2006 in Writ Petition No.8518 of 2006. The father of the appellants purchased the plot in question from the 4[th] respondent by a registered sale deed dated 21.06.1983 and since then the appellants have been in possession and enjoyment of the said property. Subsequently, the 4[th] respondent got the said sale deed cancelled unilaterally, by executing a cancellation deed dated 04.08.2005, which was registered by the 3[rd] respondent registering officer, without any notice to the appellants. The appellants filed writ petition filed seeking a declaration that the cancellation deed is illegal. That writ petition was dismissed by the impugned judgment, relying on the Full Bench decision in **Yanala Malleshwari and others v. Ananthula Sayamma and others [AIR 2007 AP 57]** , holding that the appellants should approach the civil court. 16. In **Thota Ganga Laxmi** the Apex Court observed that W.P.(C)No.14052 of 2020 14 there was no need for the appellants to approach the civil court as the said cancellation deed dated 04.08.2005 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. If '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. 17. In **Thota Ganga Laxmi** the Apex Court noticed that, as per Rule 26(i)(k) of the Andhra Pradesh Rules under the Registration Act, 1908, the registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of 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 W.P.(C)No.14052 of 2020 15 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. As per the proviso to Rule 26(i)(k), the registering officer shall dispense with the execution of cancellation deeds 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. 18. In **Thota Ganga Laxmi** the Apex Court held that, a reading of Rule 26(i)(k) of the Andhra Pradesh Rules under the Registration Act, 1908 also supports its observations made above, that there was no need for the appellants to approach the civil court as the cancellation deed as well as registration of the same was wholly void and non est and can be ignored altogether. 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 W.P.(C)No.14052 of 2020 16 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. The Apex Court accordingly set aside the impugned judgment of the Andhra Pradesh High Court and the Civil Appeal was disposed of with the above observations. 19. The law laid down by this Court in **Pavakkal Noble John [2010 (3) KHC 879]** is affirmed by the Division Bench in **Santhosh Antonio S. Netto v. Joshy Thomas and others [2020 (3) KHC 278]** . 20. In **Santhosh Antonio S. Netto** , the Division Bench has taken note of the decision rendered by another Division Bench in **Hamsa P.A. v. District Registrar General, Kozhikode and others [2011 (3) KHC 342]** , in which it was noticed that the Full Bench decision in **Yanala Malleshwari [AIR 2007 AP 57]** is no more good law as the same was declared to be so by the Apex Court in **Thota Ganga Laxmi [(2010) 15 SCC 207]** , wherein it was held that, it is only when a sale deed is cancelled by a competent court that the cancellation deed can be registered and W.P.(C)No.14052 of 2020 17 that too after notice to the concerned parties. In the absence of any declaration by a competent court or any notice to the concerned parties, both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions. 21. In **Hamsa P.A.** , the Division Bench was dealing with a case in which the appellant in his capacity as the Chairman and Managing Director of a Private Limited company and also in his individual capacity sold certain parcels of land in favour of another Private Limited company of which the 3[rd] respondent is the Managing Director. The said sale transactions were duly registered under the Registration Act, 1908. The documents so registered are dated 31.08.2007 and marked as Exts.R3(a) and (b) in the writ petition. Subsequently, the appellant got registered Exts.P1 and P2 documents, styled as cancellation deeds. The learned Single Judge by the judgment under appeal opined that a duly executed and registered sale deed cannot be unilaterally cancelled by paying the stamp duty invoking either Article 15 or 21 of the Kerala Stamp Act. The learned Single Judge also opined that the authorities acting under the Registration Act are not obliged to blindly register every document produced for registration unmindful of the validity W.P.(C)No.14052 of 2020 18 and legality of a document. 22. In **Hamsa P.A.** it was argued before the Division Bench that, the judgment of the Full Bench of the Andhra Pradesh High Court in **Yanala Malleshwari** and the judgment of the Apex Court in **Thota Ganga Laxmi** were rendered in the context of the rules framed by the State of Andhra Pradesh, and the rules framed under the Registration Act by the State of Kerala, more particularly Rule 67, which clothes the registering officer with a duty to enquire into the validity of the document, did not fall for consideration of the Apex Court and therefore, the decision of the Apex Court is not an authority for the proposition in the State of Kerala, that the registering officer has no discretion to enquire into the legality or validity of the documents presented for registration. The Division Bench repelled the said contention, stating that, as held by the Apex Court, cancellation deeds executed unilaterally by the vendor of a property which had been duly transferred and conveyed earlier are documents which are void, non est and 'meaningless ' transactions . Therefore, such documents obviously are not documents falling within the provisions of the Registration Act, 1908. If a document is beyond the purview of the Registration Act, W.P.(C)No.14052 of 2020 19 the rules prescribed under the Act cannot confer a better status on such documents. 23. In **Hamsa P.A.** the learned counsel for the appellant submitted that independent of the legal position that a unilaterally executed cancellation deed of a concluded sale transaction has no legal validity, the appellant, in law, does has a right to seek a declaration that the past sale transaction to which he is a party (as vendor) is illegal and not binding on him before the civil court in an appropriate suit and such a right of the appellant may be preserved. The Division Bench observed that, the right of a party to avoid a transaction of transfer of property under certain conditions is well recognised in this country. If the appellant believes that he is, in law, entitled to avoid the legal consequences of the sale transactions covered by Exts.R3(a) and R3(b), it is open for him to take such steps as are available to him in law in this country. 24. Chapter V of the Specific Relief Act, 1963 deals with cancellation of instruments. As per sub-section (1) of Section 31, any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it W.P.(C)No.14052 of 2020 20 adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. As per sub-section (2) of Section 31, if the instrument has been registered under the Indian Registration Act, 1908 the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. 25. In **Santhosh Antonio S. Netto [2020 (3) KHC 278]** , while affirming the law laid down in **Pavakkal Noble John [2010** **(3) KHC 879]** , the Division Bench held that, once registration of a sale deed is effected in accordance with law, then the only alternative available to the vendor other than the one taken care of under Section 83A of Registration Act, 1908, is to get the sale deed cancelled in terms of law seeking adjudication through a civil court, as provided under Section 31 of the Specific Relief Act, 1963. That apart, Section 83A of the Registration Act makes it clear that, the authorities under the Registration Act are vested with powers to cancel such registered documents alone as provided thereunder. It is also clear from Section 83A that those are not powers conferred on the authorities under the said Act generally but only under W.P.(C)No.14052 of 2020 21 specified and limited circumstances to protect the public interest and therefore, such a powers conferred on the authority cannot be utilised for the purpose of cancellation of any sale deed registered otherwise. The introduction of Section 83A also makes it clear that, apart from the power vested so as to the authority under the said provision, there is no enabling provision to the Sub Registrar, or any other authorities for cancellation of sale deed executed by and between the owner of the property and the purchaser under the Registration Act. On the other hand Section 71 of the said Act provides enabling power to the Sub Registrar to refuse to register a document. Sub-section (1) thereto stipulates that every Sub Registrar refusing to register a document except on the ground that the property to which it relates is not situate within the sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2 and endorse the words 'registration refused' on the document. If any endorsement is made by the Sub Registrar, accordingly, then sub-section (2) thereto prohibits any registering officer to accept for registering a document so endorsed unless and until under the provisions contained in the Registration Act the document is directed to be registered. The Division Bench noticed W.P.(C)No.14052 of 2020 22 that, the 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, after taking into account the said circumstances and also the duties and obligations of a Sub Registrar to verify the documents when the same is presented for registration. On an evaluation of the provisions and construing them harmoniously, the Division Bench found that the Sub Registrar is not vested with powers to register a cancellation deed unilaterally. Which thus means that the Sub Registrar cannot assume powers which are not conferred under law to do an act adverse to the interest of the beneficiary of a sale deed, without notice to him/her. When any provision of law prescribes a modality to do an act, it has to be performed in such manner only. Therefore, the course open to the appellant was to approach the civil court in contemplation of Section 31 of the Specific Relief Act. Since there is no legal infirmity with the judgment of the learned Single Judge, the Division Bench declined interference and accordingly dismissed the writ appeal. 26. In the instant case, as already noticed, in Ext.P1 settlement deed bearing No.2358/1/2019 dated 25.09.2019 of the W.P.(C)No.14052 of 2020 23 Sub Registrar Office, Karikode executed by the 3[rd] respondent father, in favour of the petitioner son, the condition as required under sub-section (1) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for provision of basic amenities and basic physical needs to the 3[rd] respondent father, who is a senior citizen, has not been expressly stated. 27. The word 'settlement' is not defined anywhere in the Transfer of Property Act, 1882. Clause (d) of Section 2 of the Specific Relief Act, 1963 define 'settlement' to mean an instrument other than a will or codicil as defined by the Indian Succession Act, 1925, whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of. Clause (24) of section 2 of the Indian Stamp Act, 1899 define 'settlement' to mean any non-testamentary disposition, in writing, of movable or immovable property made (a) in consideration of marriage, (b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition W.P.(C)No.14052 of 2020 24 and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition. The definition of the word 'settlement' in clause (q) of Section 2 of the Kerala Stamp Act, 1959 is identical with that in clause (24) of section 2 of the Indian Stamp Act. 28. In **Jose Paul v. Paul and another [2018 (4) KHC 152]** this Court held that, a wider definition was given to the word 'settlement' under the Indian Stamp Act and the Kerala Stamp Act and a group of documents held together and brought under one caption/category of 'settlement'. The said definition given to the word 'settlement' under the Central and State Stamp Act is only for the purpose of computation of stamp duty payable. The definition given to the word 'settlement' in the Specific Relief Act acquires importance as it defines what amounts to settlement - an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925, whereby the destination or devolution of successive interests in movable or immovable property is disposed of or is agreed to be disposed of. In substance, there is no much difference between the definition given to the word 'settlement' in W.P.(C)No.14052 of 2020 25 the Central and State Stamp Act from that under clause (b) of Section 2 of the Specific Relief Act. The only difference is that a document by which either destination or devolution of successive interests agreed to be disposed of is also brought under the definition 'settlement' under clause (b) of Section 2 of the Specific Relief Act. 29. In **Jose Paul** this Court was dealing with a case in which the property originally belonged to the father, who is the 1[st] defendant in the suit. He had executed Ext.A4 settlement deed in favour of the 2[nd] defendant, in the year 1996. In the year 1997, Ext.A5 cancellation deed was executed by the 1[st] defendant cancelling Ext.A4 settlement deed of the year 1996 and executed Ext.A3 deed of conveyance in favour of the plaintiff. Based on the said document, claiming title over the property, the plaintiff came up with the suit. The Trial Court decreed the suit holding that Ext.A5 cancellation deed is valid and granted a decree setting aside Ext.A4 settlement deed. It was reversed in first appeal and the suit was dismissed. Aggrieved by the said judgment and decree, the plaintiff came up before this Court in a regular second appeal. 30. In **Jose Paul** this Court noticed that, both the definitions W.P.(C)No.14052 of 2020 26 under the State and Central Stamp Act and the Specific Relief Act intakes the ingredient which constitute a gift of property as mandated under Sections 122 and 123 of the Transfer of Property Act. Ext.A4 is a registered settlement deed by which the only property of the executant had been given to the transferee by reserving the right to take yield from the property and also the right to reside in the house situated in the property along with his wife. There is a provision in Ext.A4 permitting the donee/transferee to mutate the property in his name. This would prima facie show that the document transfers a valid title over the property, in favour of the donee, but subject to the life interest of the executant and his wife, and the donee was permitted to mutate the property in his name. It is further recited in the document that after their death the life interest also would go to the donee. The property was given in consideration of love and affection of the executant father towards his son, the donee. This would satisfy the ingredient which constitute a valid settlement deed transferring the entire title over the property in favour of the donee and it is in essence a gift. The fact that the property was mutated in his name amounts to acceptance of the gift and thereafter, there cannot be any unilateral W.P.(C)No.14052 of 2020 27 revocation by way of cancellation by the donor and hence Ext.A5 cancellation deed unilaterally executed by the executant and the subsequent deed executed are not binding on the donee, who obtained the property under the abovesaid settlement deed. The subsequent cancellation by the donor having no transferable right, title or interest over the property is having no legal effect and it is void ab initio as it would not in any way affect the right, title and interest held by the donee under Ext.A4 document. In fact, the above said execution of the document amounts to admission of execution of Ext.A4 document. Necessarily, the subsequent deed of conveyance executed by the 1[st] defendant in favour of the plaintiff will not have any legal sanctity. In such circumstances, this Court dismissed the regular second appeal by holding that the suit filed by the plaintiff claiming title over the property based on the said document will not stand. 31. In the instant case, as already noticed, the 3[rd] respondent father executed Ext.P1 settlement deed in favour of the petitioner son, with respect to 11.33 ares of land, with a residential building situated therein. In order to correct certain mistakes in the description of the southern and northern boundaries of the property W.P.(C)No.14052 of 2020 28 and also its survey number, the 3[rd] respondent executed Ext.P2 rectification deed. In terms of Exts.P1 and P2, the petitioner effected mutation of the property in his name and remitted land tax, as evidenced by Ext.P3 tax receipt. Thereafter, the 3[rd] respondent executed Ext.P4 cancellation deed, cancelling Exts.P1 and P2 deeds unilaterally. As on the date of execution of Ext.P4 cancellation deed, the 3rd respondent was having no transferable right, title or interest over that property. Therefore, Ext.P4 cancellation deed is having no legal effect, which is void ab initio, and it would not in any way affect the right, title and interest held by the petitioner under Exts.P1 and P2 deeds. In view of the law laid down in **Pavakkal Noble John [2010 (3) KHC 879]** , which is affirmed by the Division Bench in **Santhosh Antonio S. Netto [2020 (3) KHC 278]** , the 1[st] respondent Sub Registrar is not vested with powers to register Ext.P4 cancellation deed executed by the 3[rd] respondent father, unilaterally cancelling Exts.P1 and P2 deeds executed in favour of the petitioner son. 32. In the result, this writ petition is disposed of by setting aside Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 of the Sub Registrar Office, Thodupuzha executed by the 3[rd] W.P.(C)No.14052 of 2020 29 respondent father in relation to the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village, with a residential building situated therein. The 1[st] respondent SubRegistrar is directed to remove the entry of Ext.P4 cancellation deed No.945/1/2020 dated 19.05.2020 from the register, in relation to the property having an extent of 11.33 ares in Sy.No.1459/1/1622 of Vannapuram Village, and issue encumbrance certificate to the petitioner accordingly, if applied for. For completing the formalities, the 3[rd] respondent is directed produce Ext.P4 cancellation deed before the 1[st] respondent Sub Registrar, for cancelling the registration, within two weeks from the date of receipt of a communication from the 1[st] respondent directing production of Ext.P4, which the 1[st] respondent shall issue within two weeks from the date of receipt of a certified copy of this judgment. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** yd W.P.(C)No.14052 of 2020 30 ## **APPENDIX** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.2358/1/2019 DATED 25.09.2019 OF SUB REGISTRAR OFFICE, KARIKODE, THODUPUZHA.** **EXHIBIT P2 A TRUE COPY OF THE RECTIFICATION DEED NO.2642/1/2019 DATED 310.10.2019. EXHIBIT P3 A TRUE COPY OF THE PAYMENT OF LAND TAX RECEIPT DATED 19.10.2019.** **EXHIBIT P4 A TRUE COPY OF THE CERTIFIED COPY OF THE CANCELLATION DEED NO.945/1/2020 DATED 19.05.2020.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 09.06.2020. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN WPC NO.26248/2011 DATED 09.01.2020.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** **P.A. TO JUDGE**