IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10 .02.2009
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
Writ Petition No.8567 of 2008
and
M.P.Nos. 1 and 2 of 2008

G.D.Subramaniam ... Petitioner

vs.

1.The Sub Registrar,

Office of Konur Sub Registrar,
Sidco Nagar, Chennai-49.

2.P.Shanmugam
3.Mr.B.Dillibabu
4.Mr.B.Vasu ... Respondents

Writ petition has filed filed under Article 226 of the Constitution of
India to issue a writ of certiorari to call for the records of the impugned deed
of cancellation of sale dated 10.09.2007 executed by the second
respondent's power agent third respondent and presented to and registered
by first respondent as document No.4433 of 2007 on the file of the first
respondent and quash the same.

For petitioner : Mr.N.Sreenivasalu

For respondents : Mrs.Malarvizhi Udayakumar,

Special Govt.Pleader (R1)
Mr.Murugan (R2 to R4)

ORDER

Whether, registration of a deed of cancellation, unilaterally executed

by the vendor to nullify the earlier sale validly made, is sustainable in law ?
This Court, in this writ petition, is called upon to find a solution to the said
interesting question of law.

The Facts:-

The second respondent was, originally the owner of a valuable

immovable property in Chennai. The third respondent is his Agent,
appointed by means of a registered deed of power of attorney dated
07.07.2006. The petitioner purchased the said property by means of a
registered sale deed dated 14.07.2006 for a consideration of Rs.14,00,000/-
from the second respondent through the third respondent. On behalf of the
second respondent, the third respondent executed the sale deed and the
same was registered at the office of the first respondent as document
No.3503 of 2006. According to the petitioner, he was put in possession of
the said property on the same day and from then onwards, he has been in
continuous possession and enjoyment of the same.

2. Subsequently, the third respondent has entered into a sale

agreement with the fourth respondent, who is the brother of the third
respondent, on 03.08.2007 thereby agreeing to sell the very same property
to the fourth respondent and got the document registered at the office of the
first respondent as document No.3917 of 2007. Not stopping with that, on
10.09.2007, the third respondent, without the knowledge and consent of the
petitioner, executed a deed styling the same as a "Cancellation Deed"
thereby nullifying the sale dated 14.07.2006 and got the same registered at
the Office of the first respondent as document No.4433 of 2007. Seeking to
quash the said document and for further orders, the petitioner has come
forward with this writ petition.

The Issues:-

3. It is the contention of the petitioner that the sale made in his

favour is perfectly valid in law; when that be so, the unilateral cancellation of
the same by the third respondent by means of the Deed of Cancellation is
void under law; that the first respondent ought not to have registered the
said document as the same is opposed to public policy and also contrary to
the Indian Contract Act, the Transfer of Property Act and the Indian
Registration Act; more particularly, Section 32-A of the Indian Registration
Act and so, the registration of the Cancellation Deed to which the petitioner
was not a party, is illegal. On these grounds, the petitioner has come
forward with this writ petition.

4. The first respondent has not filed any counter. The respondents 2
to 4 have filed a common counter, wherein it is contended that due to long
association between the petitioner and the fourth respondent, at the
instance of the fourth respondent who happens to be the brother of the third
respondent, he executed the sale deed dated 14.07.2006 in favour of the
petitioner on the promise of the petitioner that he would pay the sale
consideration in due course. It is further contended that though the sale
deed was registered, possession was never handed over to the petitioner.
And, since the petitioner did not keep up his promise to pay the sale
consideration, the respondents 3 and 4 reasonably believed that the
petitioner had cheated them and so, in order to avoid any further
transaction by the petitioner in respect of the property, the Cancellation
Deed was executed. In the counter, in respect of the other grounds raised
in the affidavit of the petitioner, there is no response.

5. With regard to the maintainability of the writ petition, though no

ground has been raised in the counter, the learned counsel for the
respondents 2 to 4 raised a preliminary objection during his arguments
regarding the maintainability of the writ petition on the ground that this writ
petition is not maintainable in view of the fact that the petitioner has got
alternative remedy of getting his title declared or getting the cancellation
deed cancelled by a Civil Court. The learned counsel relies on a Full Bench
judgment of the Andhra Pradesh High Court in Yanala Malleshwari and
others v. Ananthula Sayamma and others reported in 2007 (1) CTC 97,
wherein, by majority, it has been held that a writ Court under Article 226 of
The Constitution of India has got no power to entertain a writ petition to
invalidate a cancellation deed or cancellation of an instrument which
purports to nullify a sale deed.

6. Per contra, the learned counsel for the petitioner would submit that
mere availability of alternative remedy is not a bar for this Court to entertain
the writ petition if such alternative remedy is not efficacious and effective
and thus, the writ petition is very much maintainable. In support of his
contention, the learned counsel relies on a judgment of this Court in
P.Rajagurusamy v. The Sub Registrar, Sub Registrar Office, Alandur at
Nanganallur, Chennai, reported in 2008 (1) CTC 284, wherein a learned
Single Judge of this Court, having analysed the scope of Section 32-A of the
Registration Act, has held that registration of a deed of cancellation of a sale
agreement unilaterally executed by one party to the agreement is not legal
and therefore, the same is liable to be quashed.

The Analysis:-i)Maintainability:

7. Though 59 years have passed off, since we, the people, have given
to ourselves the Constitution of India, and the Hon'ble Supreme Court has
on several occasions well pronounced the law relating to the scope of the
power of judicial review of the High Courts under Article 226 of The
Constitution of India, more often than not, the High Courts are again and
again confronted with such questions. In view of the well settled position of
law on this subject, it may not be necessary for this Court to make a copious
reference to too many judgments on this aspect except referring to the
following to reproduce the law laid down:-
(i) In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and
others, reported in (1998) 8 SCC 1, the Hon'ble Supreme Court has vividly
stated the law on the subject as follows:-
" The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provision of
the Constitution. The High Court, having regard to the facts and
circumstances of the case, has a discretion to entertain or not to entertain a
writ petition. But the High Court has imposed upon itself certain restrictions,
one of which is that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by the Hon'ble Supreme Court not to
operate as a bar in atleast three contingencies viz., where the writ petition
has been filed for the enforcement of the any of the fundamental rights or
where there has been a violation of the principles of natural justice or where
the order or proceedings are wholly without jurisdiction or the virus of an Act
is challenged."
"Therefore, the jurisdiction of the High Court in entertaining a writ
petition under Article 226 of the Constitution, in spite of the alternative
statutory remedies, is not affected, specially in a case where the authority
against whom a writ is filed is shown to have had no jurisdiction or had
purported to usurp jurisdiction without any legal foundation."

(ii) In ABL International Ltd. And another vs. Export Credit Guarantee
Corporation of India Ltd., and others reported in (2004) 3 SCC 553, in para
28 of the judgment, the Hon'ble Supreme Court has held that " while
entertaining an objection as to the maintainability of a writ petition under
Article 226 of the Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provisions of
the Constitution. The High Court having regard to the facts of the case, has
a discretion to entertain or not to entertain a writ petition. The Court has
imposed upon itself certain restrictions in the exercise of this power. (See
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others ) And
this plenary right of the High Court to issue a prerogative writ will not
normally be exercised by the Court to the exclusion of other available
remedies unless such action of the State or its instrumentality is arbitrary
and unreasonable so as to violate the constitutional mandate of Article 14 or
for other valid and legitimate reasons, for which the Court thinks it
necessary to exercise the said jurisdiction".

8. Keeping in view the above principles laid down by the Hon'ble

Supreme Court, if the issues involved in the instant case are viewed, I am
sure, for the forthcoming discussions and conclusions, the power of judicial
review under Article 226 would engulf into its ambit the said issues and thus,
this writ petition is maintainable.

9. Complaints, in plenty, flood the police stations in the State of Tamil

Nadu very often, in recent times, alleging that, unscrupulous sellers and
landgrabbers, indulge in nullifying the valid sale made by means of
registered sale deeds, by executing cancellation deeds unilaterally and
getting the same registered in an ingenious way. The modus operandi is,
this court is informed, that unscrupulous elements like landgrabbers
approach the former owners of properties, practice a kind of deception by
paying paltry amounts, induce them to execute cancellation deeds without
the knowledge and consent of the purchasers and then to execute fresh sale
deeds in their favour. It is, indeed, a fraud. Based on such sale deeds, these
mighty people squat upon the properties thereby depriving the real owners,
who are generally meek, from enjoying the properties thereby leaving them
in the lurch. It is also common knowledge that the doors of subordinate
Courts are knocked at with number of Civil Suits where the real owners have
to fight for justice to get their title declared as against these unscrupulous
elements. Going by the past experience, the Civil Suits, in normal course,
take years to conclude. In the meanwhile, it also happens that some more
encumbrance is made thereby creating further cloud in the title so as to
make the issues more complex and complicated.

10. "Fraud avoids all judicial acts, ecclesiatical or temporal" observed

Chief Justice Edward Coke of England about three centuries ago. Therefore,
neither the Government nor the Courts of law can turn a deaf ear to the
distress cries of the aggrieved and be blind to the alarming situation. The
jurisdiction of this Court under Article 226 of the Constitution is undoubtedly
wide. But, while exercising the same, as a matter of caution, the Courts
have formulated self imposed restrictions on their powers so as to leave the
parties to avail the alternative remedies. But when such alternative remedy,
as in the instant case, is neither efficacious nor easy to secure without
undue hardship and delay, the said self imposed restrictions cannot be an
impediment for the Writ Court to exercise its jurisdiction in order to render
substantial justice. The issues involved in the instant case need to have a
deep approach of a socio-legal scientist to invent a solution acceptable to the
society, particularly, the parties to this lis. (vide Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others). So, I hold that availability of
alternative remedy,in the facts and circumstances enumerated above, is not
a bar to entertain the instant writ petition.
ii)Powers of Registering Officer:
11. A sale is essentially an executed contract, whereby the seller has
transferred his title and declared that by means of the execution of the sale
deed for lawful consideration, the purchaser has become the owner of the
property. Thus it is bi-lateral. No such contract can be cancelled unilaterally
by one party, unless such a right has been reserved in the contract itself.
There is no specific provision for cancellation of a sale in the Transfer Of
Property Act. Section 4 of the said act states that the chapters and sections
of the said Act which relate to contracts shall be taken as part of the Indian
Contract Act. Since, a sale is an executed contract, Sec. 62 of the Indian
Contract Act is applicable which speaks of conditions under which novation,
recession and alteration of a contract can take place. In City Bank, N.A. v.
Standard Chartered Bank and others reported in (2004) 1 SCC 12, the
Hon'ble Supreme Court holds "novation, recession or alteration of a contract
under Section 62 of the Indian Contract Act can only be done with the
agreement of both the parties to the contract. Both the parties have to
agree to set aside the original contract with the new contract or for recession
or for alteration". Thus, it is now too well settled that a cancellation deed,
which is executed unilaterally by one party to the contract is illegal.

12. 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.

13. 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 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 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.

14. In my considered opinion, it is too hard to accept the said

contention. Of course, Section 34 of the Act does not expressly provide that
the Registering officer should hold an enquiry in respect of the validity of the
document presented for registration. But, Rule 55 of the Registration Rules
states thus:-

" 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.

At the first blush, on going through 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 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 reported in A.I.R. 1954 SC 316,
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 proper compliance with
the provisions of the Act before the document is registered".

15. In the said backdrop, if the entire scheme of the Act and the rules
are analysed, 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.

16. 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."

17. 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/-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 cancelling
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 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.

18. 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 signed by the seller as well as the purchaser and the
same shall also bear their finger prints and photographs.

19. 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. In P.Rajagurusamy
vs. The Sub Registrar, Sub Registrar Office, Alandu at Nanganallur Chennai
reported in 2008 (1) CTC 284, while dealing with cancellation of an
agreement for sale unilaterally by one party to the agreement, a learned
Judge of this Court has taken the view that 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. The finding of the
learned Judge in para 8 is as follows:-
" 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 affixure of the photographs and finger prints of both the buyer and the
seller of the 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."
I am in respectful agreement with the said view. 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.

20. Now, turning to the judgment of the Full Bench of the Andhra
Pradesh High Court in Yanala Malleshwari and others, speaking for majority,
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 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 executant 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
document recognized in law and a transaction for transfer of immovable
property is no exception."

21.With respect, I am unable to subscribe myself to the said view

taken by the majority for the reasons which follow. 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 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 generalise all
deeds of cancellation as illegal or void so as to say that such 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.
 22. 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, 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 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." (Emphasis supplied)

23. In Badugu Venkata Durga Rao v. Surneni Lakshmi reported in

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 cancelling
the earlier sale deed. This view has been accepted by His Lordship Bilal
Nazki in the minority judgment.
 24. 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 this 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.

25. The view taken by me herein, thus, draws full support from the
minority judgment in Yanala Malleshwari and others v. Ananthula Sayamma
and others and the learned Single Judge of the Andhra Pradesh High Court
in Badugu Venkata Durga Rao v. Surneni Lakshmi and a learned single
Judge of this court in P.Rajagurusamy vs. The Sub Registrar, Sub Registrar
Office, Alandu at Nanganallur Chennai.

26. 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.

(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 ex parte
registration of cancellation deeds."

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 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 therefrom.

27. When a public authority has acted without jurisdiction in violation

of principles of natural justice, while performing a public function, the self
imposed restrictions on the powers of the High Court under Article 226 of
The Constitution of India, cannot place hurdles upon this court to interfere
so as to safeguard the buyer's rights by setting aside the said act of the
public authority.
 28. Now, it is time to have a glance through the judgment of the
Hon'ble Supreme Court in State of Rajasthan v. Basanth Nahata reported in
A.I.R. 2005 SCC 3401, wherein the constitutionality of Section 22-A of 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:-

" 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."

29. While striking down Section 22-A of the Act, the Hon'ble Supreme
Court has held " the necessity of the legislature s 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 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."

30. 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:
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.

The conclusions:
31. Out of the foregoing discussions, the emerging conclusions are
summed up as follows:-

(i) Challenging registration of a unilaterally executed deed of

cancellation of a sale, a writ petition is maintainable under Article 226 of the
Constitution of India;

(ii) A deed of cancellation of a sale executed by mutual consent by all

parties to the sale deed, if presented for registration, the registering Officer
is bound to register the same provided the other requirements like Section
32-A of the Registration Act have been complied with.

(iii) The Registering Officer is obliged legally to reject and to refuse to

register a deed of cancellation of a sale unilaterally executed without the
knowledge and consent of other parties to the sale deed and without
complying with sec.32A of the Registration Act.

The Result:
32. In the result, the writ petition is allowed. The registration of the
cancellation deed (document No.4433 of 2007) by the first respondent is
hereby quashed. Having regard to the facts and circumstances of the case,
the respondents 2 to 4 are directed to pay a cost of Rs.10,000/- (Rupees ten
thousand only) to the petitioner. Consequently, connected miscellaneous
petitions are closed.

sbi/pal
Note:
The registry is directed to communicate this order to
the Secretary to Government
for circulation to all the Registering Officers
through out the State of Tamil Nadu for compliance.

To

The Sub Registrar,

Office of Konur Sub Registrar,
Sidco Nagar,
Chennai 49