UNILITERAL CANCELLATION OF REGISTRED

DEEDS By: - K.V.S.S.Prabhakara Rao, Advocate, Rajahmundry

1. When a cancellation deed, executed unilaterally byone party is presented before a statutory authority viz.,

the Registering officer, the question is, whether he is

bound to register the same despite the fact that

obviously the said document is void or illegal and that

the document has not been duly executed as per law.

2. Indian Registration Act, when a document is

presented for registration, the Registering officer has

got only limited powers to make an enquiry as provided

under Section 34 of the Act, wherein he is required to

ascertain the following viz.,

"Section 34 (3)(a):- enquire whether or not such

document was executed by the persons by whom it purports

to have been executed;

(b) Satisfy himself as to the identity of the

persons appearing before him and alleging that they have

executed the document (or they are claiming under the

document); and

(c) in the case of any person appearing as a

representative, assign or agent, satisfy himself of the

right of such person so to appear. If he is satisfied on

the above aspects, according to the learned counsel, the

Registering officer has no other option except to

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register the document. In the case on hand, it is

contended, since these conditions were satisfied, the Sub

Registrar was right and very much within his jurisdiction

to register the said cancellation deed.

(d) Thus, it is now too well settled that a

cancellation deed, which is executed unilaterally by one

party to the contract is illegal.. When such a

cancellation deed, executed unilaterally by one party is

presented before a statutory authority viz., the

Registering officer, the question is, whether he is bound

to register the same despite the fact that obviously the

said document is void or illegal and that the document

has not been duly executed as per law.. It is the

contention of the respondents 2 to 4 that as per the

Indian Registration Act, when a document is presented for

registration, the Registering officer has got only

limited powers to make an enquiry as provided under

Section 34 of the Act, wherein he is required to

ascertain the following viz., Section 34 (3)(a):- enquire

whether or not such document was executed by the persons

by whom it purports to have been executed; (b) satisfy

himself as to the identity of the persons appearing

before him and alleging that they have executed the

document (or they are claiming under the document); and

(c) in the case of any person appearing

3. .The Section 34 of the Act does not expressly

provide that the Registering officer should hold an

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enquiry in respect of the validity of the document

presented for registration. But, Rule 55 of the

Registration Rules states thus:-

Rule 55. It forms no part of a registering

officer's duty to enquire into the validity of a document

brought to him for registration or to attend to any

written or verbal protest against the registration of a

document based on the ground that the executing party had

no right to execute the document; but he is bound to

consider objections raised on any of the grounds stated

below:-

(a) That the parties appearing or about to appear

before him are not the persons they profess to be;

(b) That the document is forged;

(c) That the person appearing as a representative,

assign or agent, has no right to appear in that

capacity;

(d) That the executing party is not really dead, as

alleged by the party applying for registration; or

(e) That the executing party is a minor or an idiot

or a lunatic.

4. Sections 34 and Rule 55, one can have an impression

that it is none of the duty of the Registering Officer to

find out the validity of the document before proceeding

to register the same. But, indeed, it is not so. Section

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34 and Rule 55 speak of the limitations on the powers of

the Registering Officer to hold enquiry, which would only

mean that the Registering Officer is not required to hold

a roving enquiry to decide the validity of a document

presented for registration. On the other hand, if, by

simply glancing through the document, without there being

any necessity to hold any enquiry, the Registering

Officer is satisfied that the document is either void ab

initio or illegal, in such a situation, it cannot be said

at any stretch of imagination, that the Registering

Officer has to blindly register the said document. Such

kind of construction of Section 34 and Rule 55 would only

defeat the very object of the Act and the public

interest. For example, if two persons enter into an

agreement thereby one party agrees to kill one "X" for

the consideration to be paid by the other and present the

deed for registration, can it be said that the

Registering Officer is bound to register the said

document?" If such documents, which are patently void ab

initio or illegal, are allowed to be registered, then,

such kind of interpretation of the Registration Act would

not

serve the cause of justice. The Hon'ble Supreme Court in

Kishan Chandar v. Ganesh Prasad ( A.I.R. 1954 SC 316,

=1954 SCR 919) has held "the registration Act lays down

the formalities and rules of procedure which must be

complied with before the document is presented for

registration. It is the duty of the Registrar to see

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proper compliance with the provisions of the Act before

the document is registered".

5. In the said backdrop, if the entire scheme of the

Act and the rules are analyzed, then it would make one to

understand without any doubt, that the Registering

Officer either on enquiry or without an enquiry, should,

besides other things, prima facie be satisfied that the

document is neither illegal nor void and then to register

the same provided the other requirements are satisfied.

If the document is ipso facto illegal or void, then, he

is not obliged to register the same and instead he should

refuse to register the said document.

6. Section 17 of the Act deals with documents of which

registration is compulsory and Section 18 of the Act

deals with the documents of which registration is

optional. Section 17(b) is relevant for our case, which

reads as follows:-

` "Section 17(b): other non-testamentary instruments

which purport or operate to create, declare, assign,

limit or extinguish, whether in present or in future, any

right, title or interest, whether vested or contingent,

of the value of one hundred rupees and upwards, to or in

immovable property."

7. A plain reading of the above provision would

disclose that all non testamentary instruments declaring

a right or title over immovable properties worth Rs.100/-

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and upwards shall be registered. A deed of cancellation

of a sale falls within the purview of such an instrument

declaring right and title for an immovable property. If

any such document canceling the sale is presented for

registration, since the same is compulsorily registrable

under Section 17, the Registering officer is obliged to

register the same, provided the execution of the said

document is validly made by mutual consent of the parties

and the same is not illegal or void. To constitute a

valid execution, it should be executed by all parties to

the earlier sale. Needless to say that unless, there is a

valid execution by competent persons; the Registering

Officer has to necessarily refuse to register the

document. Thus, in a situation where the document is

either void or illegal or there is no valid execution,

the registering Officer is bound to refuse to register

the same. De hors such a position, if the Registering

officer proceeds to register the said document, then the

said registration would be without jurisdiction and not

valid.

8. Now, let me consider the scope of Section 32-A of

the Act. Before the introduction of Section 32-A of the

Indian Registration Act, there were complaints of

impersonations. That would have been one of the reasons

why the parliament, in fitness of things, thought it fit

to amend the Indian Registration Act so as to introduce

Section 32-A which provides that all such deeds shall be

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signed by the seller as well as the purchaser and the

same shall also bear their finger prints and photographs.

9. This is undoubtedly a mandatory provision. Unless

the requirements of Section 32-A are complied with, the

registering officer shall refuse to register the

document. The proviso added to Section 32-A of the act

does not specifically speak of a sale and instead, it

speaks of any document relating to transfer of ownership

of immovable property. Thus, a document nullifying an

earlier sale of an immovable property would also fall

within the scope of proviso to Section 32-A of the Act.

while any cancellation of an agreement for sale

unilaterally by one party to the agreement, even in

respect of cancellation of a mere agreement for sale,

while the same is presented for registration, Section 32-

A of the Act requires to be complied with.

" A reading of the above provision would clearly

indicate that when the document relates to the transfer

of ownership of immovable property, the passport size

photograph and finger prints of each buyer and seller of

such property mentioned in the document, should be

affixed to the document. In the instant case, though the

document in question is not one transferring the

ownership of immovable property, but only an agreement

for sale entered into between the buyer and the seller,

this provision making the affixture of the photographs

and finger prints of both the buyer and the seller of the

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property in the document, can also be extended to the

same. This would equally apply to a document for

cancellation of an agreement for sale which is placed for

registration before the Sub Registry."

10. Therefore, if a deed of cancellation, unilaterally

executed by one party without the signature of the other

party and without his photograph and finger prints, is

presented for registration, for non-compliance of Section

32-A of the Act, the Registering officer should refuse to

register the document.

11. . Now, turning to the judgment of the Full Bench of

the Andhra Pradesh High Court in Yanala Malleshwari and

others Vs Ananthula Sayamma and others ( 2006(6) A.L.T

523 = 2006(6) A.L.D 623 = AIR 2007 AP 57 ) His Lordship

Justice V.V.S.Rao, after having elaborately dealt with

the identical questions, has ultimately held in Para 66

as follows:-

"Therefore, when the provisions of the Registration

Act and Registration Rules elaborately deal with the

circumstances and situations when the registering officer

has to accept and register the documents and / or as to

when registering officer has to reject the documents for

registration, it is not possible to hold as a general

rule that whenever a cancellation deed is submitted, the

registering officer is bound to reject the acceptance and

registration of the same. Such interpretation would

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render Section 126 of TP Act (which enables the donor of

a gift to cancel / revoke the same) ineffective. Second,

there could be unimaginable number of circumstances when

the executants himself on his own volition comes before

the registering officer and desires to cancel the earlier

document. As already pointed out supra, under Section 23-

A of the Registration Act, the registering officer can

re-register a document totally ignoring the earlier

registration. Further more, under schedule 1-A to the

Indian Stamp Act as amended by the Stamp (A.P .Amendment)

Act, 1922, cancellation deed is one of the legal

documents recognized in law and a transaction for

transfer of immovable property is no exception."

12 Though in Para 54 of the judgment, a reference has

been made to Section 32-A of the Indian Registration Act,

which was recently introduced, the learned Judge has not

dealt with the same elaborately. Nobody can have any

quarrel over the legal position that a deed of

cancellation of a sale of immovable property of value

Rs.100/-and upwards, is a document which needs compulsory

registration. But the learned Judge has taken the view

that to revoke a sale or to cancel the same, the consent

or knowledge of the purchaser is not at all required. In

my considered opinion, as I have already stated, a sale

being a bilateral contract, more particularly in view of

Section 32-A of the Indian Registration Act, if to be

cancelled, it should be done bilaterally by both the

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parties to the sale. The learned Judge has expressed the

apprehension that if the law is so interpreted so as to

hold that the Registering Officer has power to refuse to

register a cancellation deed, then, it would render

Section 126 of the Transfer of Property Act, which

enables the donor of a gift to cancel it or revoke the

same, ineffective. With respect, I am of the view, that

such apprehension has no basis. Section 126 of the

Transfer of Property Act is a special provision dealing

with the power of the donor to revoke a gift deed in

certain circumstances. Such kind of revocation does not

require the consent of the beneficiary of the gift.

Basically, such a gift is not a contract in terms of the

definition of contract as found in the Indian Contract

Act, since gift is a transfer made voluntarily without

consideration, whereas, a sale of an immovable property

is a contract entered into between two parties where

consideration is a sine-qua -non. Therefore, revocation

of a gift deed cannot be equated to cancellation of a

sale deed. Both operate on different spheres. A reference

has also been made in the judgment to Section 23-A of the

Registration Act. In my considered opinion, Section 23-A

which speaks of re-registration of certain documents, has

nothing to do with cancellation of a validly executed

document. It is not to say that invariably in all cases,

the registering officer should refuse to register a

cancellation deed. We cannot generalize all deeds of

cancellation as illegal or void so as to say that such

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documents cannot be registered at all. All I would say is

that such cancellation deeds which are executed

bilaterally by both the parties to the earlier document

can be registered by the registering officer, provided,

the other requirements of the Indian Registration Act are

satisfied. But those cancellation deeds executed

unilaterally by one party to the earlier transaction,

without the consent of the other party and without

complying with the requirements of Section 32-A of the

Indian Registration Act, alone are to be rejected by the

Registering Officer.

13 In the minority judgment of His Lordship Justice

Bilal Nazki in para 120, the learned Judge has held as

follows:-

" Lastly, it was contended by the respondents that

under no provision of law the Sub-Registrar is required

to register a document after an enquiry as to the

ownership of the property with respect to which a

document is sought to be registered. It may be true that

there is no such provision in the Registration Act, but

if strictly interpreted, and then the Registration Act

would not empower the registering authority to register

any document unless it falls within Section 17 or 18 of

the Registration Act. Section 17 mentions those documents

which are compulsorily registrable and Section 18

mentions those documents, of which, the registration is

optional, but, the whole scheme of the Registration Act

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shows that it is incumbent upon the Registrar not to

register documents that are unlawful. Obviously if a

person has no right in the property and his interests in

the property had extinguished, if he tries to execute any

document for the same property, the document would be

illegal...........

It is only on mere reading of the document that Sub-

Registrar would come to a conclusion that the document,

which was sought to be registered, was an illegal

document and as such could not be registered. Therefore,

the argument of the learned counsel for respondents that

the Sub-Registrar has no authority to make enquiries with

regard to the title of the parties who executes the

documents would have to be accepted with exceptions. That

document has no title over the property; the Sub-

Registrar is not bound to register such a document. The

Scheme of the Registration Act shows that documents which

create interest or extinguish interest are either

compulsorily registerable or are to be registered at the

option of the executor. Besides this, what is sought to

be revoked by this cancellation deed, is the earlier

registered sale deed."

14 In Badugu Venkata Durga Rao v. Surneni Lakshmi (2001

(1) ALD 86, ) a learned Single Judge of the Andhra

Pradesh High Court has also taken the view that a person

who has executed a sale deed and got it registered cannot

subsequently execute a document unilaterally canceling

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the earlier sale deed. This view has been accepted by His

Lordship Bilal Nazki in the minority judgment.

15. In the case on hand, the cancellation deed was

executed unilaterally by the third respondent on the

ground that consideration was not paid by the petitioner.

Admittedly, Section 32-A of the Act also has not been

complied with. Above all, cancellation was made on the

ground of non payment of consideration by the petitioner.

All the reported decisions are to the effect that such a

sale is a completed transaction notwithstanding that the

price agreed upon at the time of execution has never been

paid.(vide. A Division Bench Judgement of Madras High

court in Govindammal vs.Gopalachariar, reported in 1906

vol.XVI MLJ, page 524). On presentation of the said

document, the first respondent ought to have refused to

register the same. Thus, the registration of the said

document is without jurisdiction and therefore, the same

is liable to be set aside.

16. The view taken by me herein, thus, draws full

support from the minority judgment in Yanala Malleshwari

and others v. Ananthula Sayamma(2006(6) A.L.T 523 =

2006(6) A.L.D 623= AIR 2007 AP 57) and others and the

learned Single Judge of the Andhra Pradesh High Court in

Badugu Venkata Durga Rao v. Surneni Lakshmi 2001 (1) ALD

86;= 2001 (1) A.L.T 115 ( Case of Coercion )

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17. After the Full Bench judgment of the Andhra Pradesh

High Court in Yanala Malleshwari and others v. Ananthula

Sayamma and others case, the Andhra Pradesh Government

introduced Rule 26-(k) of the Andhra Pradesh Registration

Rules by means of an amendment dated 29.11.2006, which

reads as follows:-

(i) The Registering Officer shall ensure at the time

of presentation for registration of cancellation deeds of

previously registered deed of conveyance on sale before

him that such cancellation deeds are executed by all

executant and claimant parties to the previously

registered conveyance on sale and that such cancellation

deed is accompanied by a declaration showing mutual

consent or orders of a competent Civil or High Court of

State or Central Government annulling the transaction

contained 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 registrable by any

provision of law.

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(ii) Save in the manner provided for above,

no cancellation deed of a previously registered deed of

conveyance on sale before him shall be accepted for

presentation for registration.

The said rule 26 (k) was challenged before the Andhra

Pradesh High Court in Kaitha Narasimha v. The State

Government of A.P., rep. By its Principal Secretary,

(W.P.No.3744/2007) by contending that the same is ultra

vires of the provisions of the Registration Act, 1908 and

is contrary to the judgment of the Full Bench in Yanala

Malleshwari and others v. Ananthula Sayamma and others.

The Division Bench of the Andhra Pradesh High Court, by

order dated 13.3.2007., while upholding the said Rule has

held as follows:-

" In our opinion, the impugned rule does not in any

manner violate the ratio of the majority judgment of the

Full Bench. Rather, as mentioned above, it is a statutory

embodiment of one of the rules of natural justice and is

intended to curtail unnecessary litigation emanating from

the exparte registration of cancellation deeds."

18. As indicated in the above judgment, the principles

of natural justice are also to be adhered to by the

Registering Officer while dealing with a deed of

cancellation of sale. If a unilateral cancellation deed

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is allowed to be registered, without the knowledge and

consent of the other party to the earlier contract, as

held by the Division Bench of the Andhra Pradesh High

Court, such registration would cause violence to the

principles of natural justice and lead to unnecessary

litigations emanating

19. Now, it is time to have a glance through the

judgment of the Hon'ble Supreme Court in State of

Rajasthan v. Basanth Nahata (A.I.R. 2005 SC 3401,

2005(3 )Suppl.SCR1 , 2005(12 )SCC77 , 2005(7 )SCALE164 ,

2005(8 )JT171, 2005 AIR SCW 4456.) this judgment most part refers

about GPA) wherein the constitutionality of Section 22-Aof the Registration Act as amended by the State of

Rajasthan and also the notifications issued by it in

terms thereof were tested. Section 22-A as it stood

introduced is as follows:-

" Section 22-A. Documents registration of which is

opposed to public policy:- (1) The State Government may,

by notification in the Tamil Nadu Government Gazette,

declare that the registration of any document or class of

documents is opposed to public policy.

(2) notwithstanding anything contained in this Act, the

registering officer shall refuse to register any document

to which a notification issued under sub-section (1) is

applicable."

19. While striking down Section 22-A of the Act, the

Hon'ble Supreme Court has held " the necessity of the

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legislatures delegating its powers in favour of the

executive is a part of legislative function. It is a

constituent element of the legislative power as a whole

under Article 245 of the Constitution. Such delegation of

power, however, cannot be wide, uncanalised or unguided.

The legislature while delegating such power is required

to lay down the criteria or standard so as to enable the

delegatee to act within the framework of the statute. A

subordinate legislation which is not backed up by any

statutory guideline under the substantive law and opposed

to the enforcement of a legal right, would not be valid.

The principle on which the power of the legislature is to

be exercised is required to be disclosed. It is also

trite that essential legislative functions cannot be

delegated. The procedural powers are, therefore, normally

left to be exercised by the executive by reason of a

delegated legislation..........."

"The executive while making a subordinate legislation

cannot be permitted to open new heads of public policy in

its whims . The provisions of the Act, therefore, do not

lay down any guidelines to render it constitutional. The

notifications issued by the State of Rajasthan themselves

show that the uncertain position to which the parties to

a transaction evidenced by a deed or a document can be

put to. Despite the words of caution that the Court's

duty is to expound the law and not expand, new heads of

illegality of contract being opposed to public policy

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have been found out and in any event, there exists such a

possibility........"

"The legislature of a State may lay down as to which acts

would be immoral being injurious to the society. Such a

legislation being substantive in nature must receive the

legislative sanction specifically and not through a

subordinate legislation or executive instructions. The

phraseology "opposed to public policy" may embrace within

its fold such acts which are likely to deprave, corrupt

or injurious to the public morality and, thus,

essentially should be a matter of legislative policy."

20. The State of Tamil Nadu also introduced a similar

provision viz., Section 22-A. Based on the decision of

the Hon'ble Supreme Court in the above judgment, a

Division Bench of this Court in the case of

B.Purushuothaman (Died), P.Indhurani and Pratheep Kumar

(Minor) rep. By his mother andnatural

guardian,P.Indhurani VS K.Chandran, The Inspector General

of Registration, The Joint Sub Registrar-I and the

Tahsildar in W.P.Nos.757 and 758 of 2007, struck down the

said Tamil Nadu State amendment. The Government of Tamil

Nadu had in exercise of power under Sec.22A, issued

G.O.Ms.No.150, Commercial Tax Department dated

22.09.2000, which was also struck down.

The suggestion:

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After the above developments, the State of

Tamil Nadu, obviously, has not considered the situation

prevailing in the State necessitating introduction of an

appropriate provision in the Act or in the Rules itself

so as to prevent registration of documents which are

opposed to public policy. As we have noticed, the Andhra

Pradesh Government has duly introduced Rule 26(k) of the

Andhra Pradesh Registration Rules making it mandatory for

the Registering Officer, not to register a deed of

cancellation of a sale deed, if it is not executed

mutually by the parties to the earlier sale deed. If it

is the intention of the Government of Tamil Nadu, not to

allow registration of certain kinds of deeds such as

deeds of cancellation of sale, executed unilaterally,

even now, it is left open to the Government of Tamil Nadu

to bring an appropriate amendment to the Registration Act

or to the Rules as has been done in Andhra Pradesh in

tune with the law declared by the Hon'ble Supreme Court

in State of Rajasthan v. Basanth Nahata by making it

mandatory for the Registering officers to refuse to

register certain documents which are opposed to public

policy by succinctly defining the documents in the

statute itself without delegating the power to define the

same to the Executive. This court is hopeful, that the

Government will take serious note of the situation

prevailing in the State and fall in line with Andhra

Pradesh Rules.

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21. However , recent judgment of Andhra Pradesh High

Court has given clear finding that unilateral

cancellation is void and against the public policy in

case Haji Mohammed Ahmed Vs State of Andhra Pradesh

( 2012(2) A.L.D 230 ) ” Unilateral cancellation by

executants of cancellation deed, with out notice to

petitioner/donee is declared void on being illegal, If

infirmity is found the executant can invoke the

jurisdiction of competent civil court for cancellation

of deeds . The Rule 26(i) (k) stipulates that if any

Registered Gift deed cancelled with out notice to donee

is illegal.

22. The Supreme Court took different stand quite

contrary to Full Bench Judgment in case Yanala

Malleshwari and others v. Ananthula Sayamma(2006(6) A.L.T

523 = 2006(6) A.L.D 623= AIR 2007 AP 57) and impliedly

overrule in case Thota Ganga Laskhmi and another Vs

Government of Andhra Pradesh (2012 (1) A.L.D 90 (SC) “

Sale deed registered subsequent cancellation deed and

registration thereof is void and non est and can be

ignored. In the sense subsequent cancellation sale deed

already registered under provision of Registration Act

has no legal entity and it require no further declaration

suit annulling the cancellation deed is illegal. The apex

Court is very clear about cancellation of sale deed or

Gift deed what ever deed subsequently carries now with in

the eye of law by invoking Rule 26(i) (k) of AP Rules of

Registration as well as Sec 69 of Registration Act . The

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glimpse of Rule 26(i) (k) follows:- “ The registered

authority office shall ensure at the time of preparation

for registration of cancellation deeds of previously

registered deed of conveyance on sale before him 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 Govt annulling the

transaction contained in the previously registered

contained in the previously registered deed of

conveyance.” Provided that the registration office

shall dispense with execution of cancellation deeds by

expectance and claimant parties to the previously

registered deed of conveyance on sale before him if the

cancellation deed is executed by Civil Judge or

Government Authority.

22. The above decisions rendered various High Courts

though contrarily views expressed invoking Sec 32-A and

23-A and Rules 26(k) AP Rules 26(i)(k) finally

concluded that Unilateral Cancellation of Registered

deed is illegal and ignored. Hence it need no necessary

to invoke jurisdiction of Civil Court under Sec 31,for

cancellation of Instruments and Sec 34 declaration of

such cancellation deeds null and void under Specific

relief Act,

Dr No 44-1-3, Jampeta, Rajahmundry. Ph 9491629554,

advkvssprabhakar@gmail.com.

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