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Judgment
Honourable Mr. Justice M.M. Sundresh
This writ petition has been filed by the petitioner who is the brother-in-law of the fourth respondent and the plaintiff in O.S.No.196 of 2010
pending on the file of Sub-Court, Tiruvannamalai, in which, the respondents 1 and 4 are parties, seeking a writ of mandamus, directing the first
respondent to consider his representation dated 10.12.2010 and pass necessary orders cancelling the registration of the Revocation Deed dated
22.06.2009 and the endorsement cancelling the Settlement Deed registered as Document No.5229 of 2008. While deciding the issues raised in
this Writ Petition, the factual matrix surrounding the case requires a proper narration.
Facts in brief:
Admittedly, the petitioner''s mother, by name, Govindammal (since deceased) purchased a house property by a registered Sale Deed dated
22.02.1952. The petitioner''s wife and the fourth respondent are the daughter and son of the deceased Govindammal, being the only legal heirs. A
registered Settlement Deed was said to have been executed by the said deceased Govindammal as early as on 02.04.1973 in favour of her son
namely, the respondent No.4. Notwithstanding the Settlement Deed executed by the deceased Govindammal who died on 05.04.1996 and after
35 years from the date of its execution in favour of her son, a Settlement Deed was executed by the wife of the petitioner in his favour, settling half-
share of the property by way of a registered deed dated 05.05.2008. After one month, that is on 06.06.2008, a Power of Attorney was executed
by the petitioner and his wife in favour of one Mr. Boopathi, who incidentally has also filed a Suit in O.S.No.196 of 2010 on behalf of the
petitioner, as well as the present Writ Petition, based upon the said power. After coming to know of the Settlement Deed executed by the
petitioner''s wife in his favour, a deed of cancellation was executed by the fourth respondent cancelling the said deed.
A Suit was filed by the petitioner through his power agent against the fourth respondent placing reliance upon the Settlement Deed executed by
his wife in O.S.No.196 of 2010, seeking partition and separate possession of the half share on 26.04.2010. A written statement was filed by the
fourth respondent on 09.07.2010 placing reliance upon the Settlement Deed said to have been executed by her mother deceased Govindammal on
02.04.1973. The power agent of the petitioner gave a written representation dated 10.12.2010 to the first respondent, with a request to cancel the
registered deed of cancellation dated 22.06.2009 executed by the fourth respondent. After a month''s time, the petitioner has come forward to file
this writ petition through his power agent. Therefore, an application was filed on 02.05.2011 by the petitioner before the Trial Court, seeking stay
of further proceedings in view of the pendency of the Writ Petition, as the trial has commenced. These facts are not in dispute.
Submissions of the petitioner:
Shri. P. Mani, learned counsel appearing for the petitioner submitted that the first respondent ought not to have registered the cancellation deed.
An unilateral cancellation by a third party, not being a party to the document, is not permissible in law. u/s 31 of the Transfer of Property Act,
1882, the manner in which a registration can be cancelled is only through a Civil Court after obtaining a decree to that effect. The petitioner was
not given any notice before registration. The first respondent has become a functus officio after the registration of the Settlement Deed and
therefore there is no power of cancellation. There is no provision to register the deed of cancellation under the Registration Act, 1908. In support
of his contention, the learned counsel has made reliance upon the following judgments:
Yanala Malleshwari and Others Vs. Ananthula Sayamma and Others, G.D. Subramaniam vs. The Sub-Registrar 2009 (1) CTC 709 A.S.
Elangode vs. A. Palanichamy 2009 (4) CTC 627 M/s. Latif Estate Line India Ltd. vs. Mrs. Hadeeja Ammal and Others 2011 1 L.W. 673 M/s.
Venkateswara Housing Private Limited vs. The Commisssioner and Inspector General of Registration & Stamps CDJ 2007 APHC 1036 Siriki
Appalaswamy vs. Sub-Registrar CDJ 2009 APHC 093
Submissions of the fourth respondent:
Per contra, Shri. Masilamani, learned senior counsel appearing for the fourth respondent submitted that the writ petition is liable to be dismissed
for the suppression of the material facts. A perusal of the power of attorney based upon which the present writ petition is filed would show that
there is no authority to file the same, as there is no specific power for filing this writ petition. The petitioner has suppressed the factum of filing of the
Suit pending in O.S.No.196 of 2010 on the file Sub-Court, Tiruvannamalai, in which both the respondents 1 and 4 have been made as parties.
The petitioner has suppressed the Settlement Deed executed by his mother-in-law and got the settlement in his favour. Considering the fact that the
Settlement Deed executed by the fourth respondent''s mother is of the year 1973 and the petitioner being in knowledge of the same, he cannot
indirectly challenge the same, even while a civil dispute is pending. The discretionary relief under Article 226 of the Constitution of India shall not
be extended to the present case on hand. In pursuant to the settlement in favour of the fourth respondent substantial construction has been made by
him and the writ petition is not maintainable in view of the pendency of the Civil Suit. The respondent is also a party to the Civil Suit and therefore
parallel litigation cannot be permitted. The conduct of the petitioner and his wife would disentitle the relief sought for, as a document has been
created by them and even in the Suit, no pre-suit notice has been issued. Therefore, the learned senior counsel submitted that the writ petition will
have to be dismissed.
Discussions:
The power under Article 226 of the Constitution of India and the relief that could be granted in exercise of the said power has been settled by
the Courts of law. As the said power is discretionary and extraordinary in nature flowing from the very Constitution itself, it is not meant to be used
in each and every case, more so when it involves a civil dispute between two parties and one party has already approached the Civil Court for
appropriate relief. This Court while exercising the power under Article 226 of the Constitution of India has to have a self imposed restriction in its
exercise. Further, when there is a suppression of fact or disputed questions are involved, it can be very well agitate before the civil forum, then a
party cannot be allowed to invoke the extraordinary powers of this Court. Keeping the said settled principle of law, the facts surrounding this case
will have to be assessed.
The fact that there was an earlier Settlement Deed registered is not in dispute as seen from the counter affidavit filed by the first respondent. The
question as to whether the said document has been executed by playing fraud, forgery or undue influence will have to be agitated before the
jurisdictional Civil Court by way of an adjudication process. When an act is done by an authority in his official capacity, it creates a statutory
presumption that the said Act has been done properly. It is no doubt true that a mere registration by itself cannot be a ground to hold that a
particular document is true or genuine. But nevertheless the said document must be put to test. Be that as it may, there is absolutely no explanation
in the present case on hand as to how the settlement was registered when there was an encumbrance over the very same property in favour of the
fourth respondent. As seen from the counter affidavit filed by the first respondent, the settlement has been registered in favour of the petitioner
notwithstanding the earlier Settlement Deed executed by the mother of the fourth respondent in the year 1973. There is also no record to show that
the petitioner has made any genuine attempt to find out from the encumbrance certificate before registering the settlement in the year 2008.
The petitioner for the reasons known to him has not made any whisper about the filing of the Suit in the affidavit filed in support of this writ
petition. Admittedly, both the respondents 1 and 4 are parties to the Suit. The Suit is at the trial stage. The petitioner has not explained before this
Court as to how the settlement deed in his favour got registered, notwithstanding the earlier document. Much reliance has been made by the
petitioner u/s 31 of the Specific Relief Act, 1963. The said provision is extracted hereunder:
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 Indian 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.
The contention of the petitioner that the fourth respondent will have to invoke the said process of approaching the Court and thereafter seek
cancellation of registered document u/s 31 of the Specific Relief Act, 1963 holds no water. It is the petitioner who got a Settlement Deed in his
favour notwithstanding the earlier document executed way back in the year 1973. It is the petitioner who filed the Suit in O.S.No.196 of 2010 on
the file of Sub-Court, Tiruvannamalai. Therefore, it is for the petitioner to get appropriate relief from the jurisdictional Sub-Court and thereafter
invoke the provisions contained u/s 31 of the Specific Relief Act, 1963.
The reliance made by the learned counsel for the petitioner on the Full Bench judgment of this Court in M/s. Latif Estate Line India Ltd. vs.
Mrs. Hadeeja Ammal and Others 2011 1 L.W. 673 cannot be accepted. The Honorable Full Bench of this Court was dealing with the case of
unilateral cancellation of a registered Sale Deed by the vendor whereas the facts involved in the present case are totally different. It is settled law
that a judgment of a Court of law cannot be read like a statute, but has to be applied to the facts of a particular case. In this case, the facts would
reveal that the property in dispute originally belongs to the deceased Govindammal. There was a Deed of Settlement registered in favour of the
fourth respondent on the file of the first respondent, indicating the transfer of title. Notwithstanding the said document, it is the petitioner who got a
settlement in his favour from his wife after a period of 35 years. The petitioner has also approached the Civil Court. Therefore, the contention of
the learned counsel for the petitioner that the fourth respondent should go before the Civil Court and thereafter has to invoke the provisions
contained u/s 31 of the Specific Relief Act, 1963, cannot be accepted. The contention of the learned counsel for the petitioner that for the
cancellation of a settlement deed, there is no power for the first respondent to register the same and therefore, the writ petition will have to be
allowed, does not require any consideration as the dispute between the petitioner and the fourth respondent will have to be resolved only through
the Civil Court.
Considering the discretionary power under Article 226 of the Constitution of India, it has been held by the Honorable Division Bench of this
Court in M/s. Digivision Electronics Limited v. Indian Bank, Chennai 2005 (3) CTC 513 which is as follows:
46.Writ is a discretionary remedy, and hence this Court under Art.226 is not bound to interfere even if there is a technical violation of law, vide: R.
Nanjappan v. The District Collector, Coimbatore, 2005 W.L.R. 47, Chandra Singh Vs. State of Rajasthan and Another, , The Managing
Director, Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd. Vs. P. Ellappan, , Ramniklal N. Bhutta and another Vs. State of
Maharashtra and others, . To obtain a writ the petitioner must not only show that the law is in his favour, he must also show that equity is in his
favour. In these cases even assuming that there is some technical violation of law, there is no equity in the petitioners'' favour. Hence, we are not
inclined to exercise our discretion under Art.226 in these cases in favour of the petitioners who have borrowed money and do not wish to repay
the same. We have been informed by Mr. V.T. Gopalan, learned senior counsel for some of the banks that about Rs.1,34,000 Crores of bank
loans are outstanding in India and have not been repaid. In many cases, there have been interim orders of various Courts which have stayed the
recoveries. Many of such interim orders were wholly unjustified, and passed only by adopting an over liberal approach. Unless repayment of the
loan is done the bank or financial institution cannot grant a fresh loan, and hence new industries cannot be set up. Thus, by staying such recoveries
incalculable harm has been done, and will continue to be done, to the economy, because persons who are genuinely in need of loans for setting up
new industries cannot get such loans because the borrowers have not repaid them. This Court should certainly not countenance such grave
malpractices.
Therefore, this Court is of the view that the facts involved in this case would clearly demonstrates the power under Article 226 of the Constitution
of India is not required to be exercised.
When there is no basis for the registration of the Settlement Deed in favour of the petitioner notwithstanding the encumbrance made in the
property in dispute in the year 1973, then the subsequent registration cannot be questioned by him. After all, it is to be borne in mind that an act of
registration does not create a title in a property by itself, as it can only be decided by a Civil Court. When an action of a public authority is not in
accordance with law, then such an action would amount to nullity. When such an authority seeks to act in a remedial manner to set right the wrong
committed, then the same cannot be set aside as one without jurisdiction or authority. Further if setting aside an order on technical ground would
revive another order which is improper, then the power under Article 226 of the Constitution shall not be invoked in such a case. It is also to be
seen that there is no legal duty imposed on the first respondent to cancel the document registered.
Accordingly, this Court is of the view that the writ petition is liable to be dismissed and the same is dismissed. However, inasmuch as the
petitioner has already approached the Civil Court, seeking partition based upon the Settlement Deed executed in his favour, it is open to the
petitioner to raise all his contentions before the jurisdictional Civil Court. The learned Sub-Judge, Tiruvannamalai is directed to disposed of
O.S.No.196 of 2010, within a period of four months from the date of receipt of a copy of this order. It is also open to the petitioner to seek all the
reliefs including the relief available u/s 31 of the Specific Relief Act, 1963 in the event of his getting appropriate orders from the Sub-Court. The
learned Sub-Judge, Tiruvannamalai is directed to dispose of the Suit, without being influenced by any of the observations made by this Court in this
Writ Petition, as they are pertaining to the issue of registration alone. No costs.
Note: Registry is directed to send a copy of this order to the learned Sub Judge, Tiruvannamalai.