Santosh Antonio S. Netto v. Josy Thomas and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** **WA.No.1852 OF 2015** **AGAINST THE JUDGMENT IN WPC 37150/2009 DATED 03-09-2010 OF HIGH COURT OF KERALA** ## **APPELLANT/3rd RESPONDENT:** **SANTHOSH ANTONIO S. NETTO S/O SILVERSTER NETTO,SILVERSTER HOUSE,MEENATHUCHERIYIL,SAKTIKULANGARA VILLAGE,KOLLAM** **BY ADVS. SRI.N.D.JOSEPH ANTONY SRI.P.B.PRADEEP SHRI.N.J.ASHWIN SHRI.VISHNU PRADEEP** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** |**1**|**JOSHY THOMAS**| |---|---| ||**S/O.P.C THOMAS,PALLIKKAL HOUSE,MANIMOOLI**| ||**P.O,VAZHIKKADAVU,**| ||**NILAMBOOR TALUK-679321**| |**2**|**INSPECTOR GENERAL OF REGISTRATION,**| ||**NEAR CHIEF JUDICIAL MAGISTRATE COURT,VANCHIYOOR,**| ||**THIRUVANANTHAPURAM,PIN-695 001.**| |**3**|**SUB REGISTRAR,**| ||**OFFICE OF THE SUB REGISTRAR,**| ||**ANCHALANMOOD,**| ||**KOLLAM-691 001.**| ||**R1 BY ADV. SRI.C.HARIKUMAR**| ||**SRI.ARAVINDAKUMAR BABU.T.K., SENIOR GOVERNMENT**| ||**PLEADER**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1852 OF 2015 2 **C.R** ## **JUDGMENT** ## **SHAJI P.CHALY,J.** This appeal is preferred by the 3[rd] respondent in the writ petition challenging the judgement of the learned Single Judge dated 3.9.2010 in W.P.(C) No.37150/2009, filed by the first respondent, wherein respondents 2 & 3 herein are respondents 1 & 2 respectively. The judgement of the learned Single Judge ordered thus: “22. The conclusions emerging from the above discussion may be summed up as follows: (i) The subregistrar 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. (ii) All sub-registrars of the State shall 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 Act and Rules including Section 32A of the Registration Act. 23. 23. In the result, these two writ petitions are allowed and the registration of the deed of cancellation dated 1-8-2009 registered as document no. 2830/2009 of Uliyil Sub Registrar’s Office produced as WA.No.1852 OF 2015 3 Ext. P3 in W.P. (C) No. 34367/2009 and the registration of the deed of cancellation dated 24-11-2009 registered as document no. 2099/2009 of Anchalummood Sub Registrar’s Office produced as Ext. P2 in W.P. (C) No. 37150/2009 are hereby quashed. The respective sub-registrar shall cancel, strike off and remove the said deeds from the registers maintained by them in respect of the respective properties and the same 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. 34367/2009 and the 3 rd respondent in W.P. (C) No. 37150/2009 shall produce the cancellation deeds executed by them before the respective sub-registrar for cancelling the registration within two weeks from 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. Before parting with the case, I suggest that the Government of Kerala would do well to introduce appropriate amendment to either the Act or the Rules, in line with Rule 26(k) of the Andhra Pradesh Registration Rules referred to above, (see paragraph 19 supra) to give a statutory framework to the findings in this judgment. To enable the Government to consider the same, the Registry shall forward a copy of this judgment to the Secretary, Registration Department and the Inspector General of Registration, of the Government of Kerala. I sincerely hope that my above suggestion will not meet with the same fate, namely, discard to the waste bin, as my suggestion in **Retnavally V Ambalapadu S.C.B. Ltd., 2005 (3) KLT 320,** wherein also a suggestion was made to the Government in respect of notification of commencement of WA.No.1852 OF 2015 4 Section 4A of the Payment of Gratuity Act, 1972, in the State of Kerala, which would have hugely benefitted the entire workforce in Kerala covered by the Payment of Gratuity Act, without any corresponding financial burden on either the employers or the Government. In the meanwhile, the Inspector General of registration shall circulate a copy of this judgment with appropriate directions in accordance with this judgment, to all subregistrars of the State who shall implement the directions contained herein.” 2. Accordingly the writ petition was allowed along with the connected writ petition viz., W.P.(C) No.34367/2009. The subject issue relates to unilateral cancellation of Ext.P1 sale deed No.2209/08 dated 28.10.2008 by registration of cancellation deed No.2099/09 dated 24.11.2009 of SRO, Anchalummood on the ground that, the writ petitioner has not paid the sale consideration and the property has not been given possession of to the petitioner. Learned Single Judge after elaborate survey of the provisions of the Indian Registration Act, 1908 and other relevant enactments and the proposition of law laid down by the Apex Court in **State of Himachalpradesh and Others v. Shivalik Agro Poly Products and others** [(2004) 8 SCC 556], **Kaliperumal v. Rajagopal and another** [(2009)4 SCC 193], **Muralidhar Aggarwal v. State of Utterpradesh** [(1974)2 SCC 472], **Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly** [AIR 1986 SC 1571], **Oil and Natural** WA.No.1852 OF 2015 5 **Gas Corporation Limited v. Saw Pipes Ltd.** [(2003)5 SCC 705] and other judgements, in regard to the consequences of execution of sale deed, the contract entered into by and between the parties, the public policy involved in the registration of deed by and between parties, and the apparent adverse consequences in regard to the unilateral cancellation of sale deed, has arrived at the conclusion that the Sub Registrar is not vested with powers to cancel the sale deed unilaterally. 3. We have heard learned counsel for appellant, learned Government Pleader and learned counsel appearing for the 1[st] respondent and perused the pleadings and documents on record. 4. In fact the Apex Court had occasion to consider the similar situation in **Thota Ganga Lakshmi and another v. Government of Andhra Pradesh** [(2010) 15 SCC 2017] and the question considered therein was cancellation of sale deed without issuing notice to vendee. It was held as follows in paragraphs 4 to 7: “4. 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 WA.No.1852 OF 2015 6 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. 5. In this connection, we may also refer to Rule 26(k)(i) relating to Andhra Pradesh under Section 69 of the Registration Act, 1908, which states: “(i) 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 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 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.” 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 parties concerned. 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. 6. The appeal is disposed of with the above observations. The impugned judgment is set aside. No order as to costs. 7. In view of the above order, no orders need be passed on the application WA.No.1852 OF 2015 7 for intervention and it is disposed of accordingly.” ## 5. A Division Bench of this Court in **Hamsa.P.A v. District Registrar** **General , Kozhikode and others** [2011(3)KHC 342] had occasion to consider the very same question and held that cancellation of sale deed executed unilaterally by the vendor of a property, which had been duly transferred and conveyed earlier, cannot be legally sustained. Paragraphs 13 to 16 are relevant to the context, which read thus: “13. In the circumstances, an enquiry into the question in the instant appeal should normally come to an end in view of the law declared by the judgment of the Supreme Court. However, the learned counsel argued that the judgment of the Full Bench of the Andhra Pradesh High Court and the Supreme Court 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 Supreme Court and therefore the decision of the Supreme 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. 14. We reject the submission for the reason that the Supreme Court categorically held that the cancellation deeds, such as the one in question before us as well as before the Supreme Court, 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 WA.No.1852 OF 2015 8 provisions of the Registration Act, 1908. If a document is beyond the purview of the Registration Act, the rules prescribed under the Act cannot confer a better status on such documents. In the circumstances the submission of the learned counsel is rejected. 15. We may also mention for the sake of the completion of the history of the proposition of law that a Full Bench of Madras High Court in W.A. No.592 of 2009 (M/s.Latif Estate Line India Ltd. v. Hadeeja Ammal) also took a categoric view similar to the view taken by the Supreme Court. It appears that the abovementioned unreported judgment of the Supreme Court was not brought to the notice of the Madras High Court. 16. The net result is that the writ appeal is only required to be dismissed confirming the dismissal of the writ petition. However, the learned counsel for the appellant brought to our notice that notwithstanding the fact that the documents in question need not be registered in view of the law declared by the Supreme Court, in view of Exts.P7 and P8 there is a possibility of the respondents proceeding to recover the amounts mentioned therein, therefore appropriate directions may be issued in that regard. We see some justification in the prayer made by the learned counsel for the appellant. We, therefore, direct the respondents not to proceed to recover any amounts, either towards the Stamp duty or towards the penalty pursuant to Exts.P7 and P8, from the appellant.” 6. Similarly a Full Bench of the Madras High Court had considered the question in **Latif Estate Line India Ltd. v. Hadeeja Ammal** [Laws (Mad.) 2011 2 406] wherein the question considered was whether unilateral cancellation is possible on a sale deed executed by and between the vendor and vendee, by which vendee has acquired absolute right and title in the said WA.No.1852 OF 2015 9 property and it was held that the unilateral cancellation of the sale deed by the vendor is null and void and opposed to public policy. After conducting elaborate survey of the judgements rendered by the Apex Court Privi Council and various other High Courts, it was held in paragraph 59 as follows: - “59. After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion: - - (i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration. - (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re - convey the property by a deed of conveyance by the transferee in favour of the transferor. - (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non - payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor. - (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons.” WA.No.1852 OF 2015 10 ## That apart section 31 of the Specific Relief Act is relevant to the context, which read thus: **“31. When cancellation may be ordered:** (1) 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 adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the India Registration Act, 1908 (16 of 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” That apart section 83A is introduced into the Indian Registration Act, 1908 on and w.e.f.13.9.2013 dealing with cancellation of registered documents in certain cases which read thus: **“83A. Cancellation of registered documents in certain cases** .- (1) If on enquiry by an officer in the Registration Department not below the rank of the Deputy Inspector General of Registration, it is found that some one has falsely personated another, and in such assumed character presented, admitted the execution and got registered any document by a registering officer and the existence of such a document is detrimental to the interest of another person, the same shall be cancelled by the Inspector General of Registration on application made to him in such form as may be prescribed. (2) If on an enquiry conducted by the District Collector suo motu or on the WA.No.1852 OF 2015 11 basis of a complaint received by him, it is found that any Government land or land owned by a public sector undertaking, has been transferred on the strength of a document which is got registered without following the procedure prescribed in sub-section (3) of Section 71, the District Collector may make recommendation to the Inspector General of Registration to cancel the registration of such document. (3) On receipt of such recommendation from the District Collector, the Inspector General of Registration shall have the authority to cancel the registration of such document after following such procedure as may be prescribed.” ## So much so section 54 of the Transfer of Property Act defines 'sale', which read thus: **“54.”Sale” defined.-** “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. **Sale how made.** --Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. **Contract for sale.** --A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. WA.No.1852 OF 2015 12 It does not, of itself, create any interest in or charge on such property.” 7. On a reading of section 31 of the Specific Relief Act, it is quiet clear and evident that an adjudication with respect to void or voidable nature of a registered sale deed could be adjudicated only by a civil court. Section 54 of the Transfer of Property Act makes it clear that once a sale deed is executed by and between the vendor and vendee, the title and interest in the properties owned by the vendor is transferred to the vendee. Therefore, no part of the interest that was vested and owned by the vendor was being retained with the vendor. It is also clear that the transfer is effected for a price paid, part-paid, promised or part-promised. 8. Taking into account the aforesaid aspects, once registration of a sale deed is effected in accordance with law, then the only alternative available to the vendor other than the ones taken care of under section 83A of 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. That apart, as is pointed out above, 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 WA.No.1852 OF 2015 13 powers conferred on the Authorities under the Act, 1908 generally but only under specified and limited circumstances to protect the public interest and therefore, such a power 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 Act, 1908. On the other hand section 71 of Act,1908 provides enabling power to the Sub Registrar to refuse to registrar 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 Act, 1908, the document is directed to be registered. WA.No.1852 OF 2015 14 9. Even though learned counsel for the appellant has invited our attention to the judgement of the Apex Court in **Satyapal Anand v. State of Madhyapradesh and others** [(2016)10 SCC 767] to canvass the proposition that, the writ petition cannot be entertained in the facts and circumstances of the case on hand, and the course open to the writ petitioner was to approach the civil court to adjudicate the issue, on an analyis of the issue considered by the Apex Court, we are of the view that, the said judgement has no application to the issue at hand, since the question considered thereunder was whether, the petitioner who has approached the statutory authority under section 64 of the M.P. Cooperative Societies Act, 1960 and the authority under the Registration Act, was right in approaching the High Court under Article 226 after dismissal of the application by the Registrar under the Registration Act ? It was answered in the fact scenario that the writ petition filed during the pendency of the adjudication of dispute under section 64 of M.P. Co-operative Societies Act, 1960 is not a remedy rightly pursued by the petitioner. Therefore, in our view, the proposition of law laid down thereunder has some similarity to the issue of unilateral cancellation of a registered document, it has no application to the intrinsic fact and situation involved in this case. WA.No.1852 OF 2015 15 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 Sub-Registrar 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 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 section 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 section 5 of the Kerala High Court Act. Needless to say, WA.No.1852 OF 2015 16 the writ appeal fails, accordingly it is dismissed. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** smv **SHAJI P.CHALY JUDGE** WA.No.1852 OF 2015 17