Cancellation, Avoidance or Declaration of a Void or Voidable Deed

Taken from: Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Cancelling Deeds

Saji Koduvath, Advocate, Kottayam

PART I

Key Takeaways

  • A party to a (void or voidable) document alone need to get it cancelled; other persons can ignore it.
  • The true owner of a property cannot seek cancellation of a deed, executed by a stranger to the property.
  • When the plaintiff cannot establish his title without avoiding an instrument that stands as an insurmountable obstacle, the plaintiff has to seek a declaration.
  • A registered deed cannot be unilaterally cancelled by its executant. The only remedy available is to invoke Sec. 31, Sp. Relief Act.
  • If a person is aggrieved by a deed, the remedy open for him is to seek appropriate relief in the civil Court.
  • Registrar is not competent to cancel the registered document.
  • Does the Registering Authority hold Quasi-Judicial power? No.
  • Does the Registrar has duty to see – document is presented in accordance with law? Yes.
  • Does the Registrar hold power to desist from registering a document, submitted along with the necessary documents? No.
  • It forms no part of a Registering Officer’s duty to enquire into the validity of a document [except documents styled as marriage agreement] brought to him for registration. (Rule 67 of the Kerala Registration Rules)

Read Also:

Cancellation of Sale Deeds and Settlement Deeds

Section 31 of the Specific Relief Act provides for cancellation of deeds by the civil court. The grant of such a decree is discretionary. The court can adjudge an instrument void or voidable, partially or completely. To attract Sec. 31-

  • (i) The instrument in question must be a written one.
  • (ii) It must be a void or voidable one as against the plaintiff.
  • (iii) The plaintiff must have reasonable apprehension that such instrument, if left outstanding, may cause him serious injury.

When Declaration (other than Cancellation) is to be sought for

Declaration of Title – When required?

  • Declaration is to make clear what is doubtful.
  • Declaration is needed when serious denial or cloud on title (Anathula Sudhakar v. P. Buchi Reddy, 2008-4 SCC 594: 2008 SC 2033, Jharkhand State Housing Board v. Didar Singh , (2019) 17 SCC 692 . Referred to in: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258, serious cloud: Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150: (Quoted in Muddasani Venkata Narsaiah v. Muddasani Sarojana: AIR 2016 SC 2250: 2016-12 SCC 288).
  • Declaration is needed as an ‘introduction’ to grant Injunction and Recovery.
  • Declaration is also to tide over Insurmountable obstacle (Noorul Hoda v. Bibi Rafiunnisa, 1996 (7) SCC 767). 
  • Injunction is granted without declaration, when plaintiff has well established title, or settled lawful possession.
  • No declaration is needed when title claimed by the defendant is null or void.
  • If a person is aggrieved by a deed, the remedy for him is to seek appropriate relief in the civil Court (Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57)
  • No declaration is needed when a person sells away the property belonging to other, as  it would certainly be fraud on the statute (Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57).
  • No declaration is needed when – Plaintiff is not a party to the sale deed (Usman Kurikkal v. Parappur Achuthan Nair, ILR 2012-3 Ker 343; 2012 3 KHC 89)
  • No declaration is needed when – Document ex-facie reveals no title – specific declaration as to invalidity not necessary.
  • A complete stranger whose interest is in no way affected by another’s legal character is not entitled for a declaration.

When a Plaintiff can Ignore a Deed

(i) When Not a Party to the Deed (ii) Third Party Sells Property of Another

  • V.  Kalyanaswamy v. L.  Bakthavatsalam, 2020 3 RCR(Civ) 404; 2020 9 Scale 367
  • Also in Sankaran v. Velukutty, 1986 KLT 794
  • SR Suresh Babu v. Beena, 2022 KHC OnLine 196.
  • Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57.

Unilateral Cancellation by Regd. Deed, Stands Against Sec. 31

  • Pavakkal Noble John v. Kerala State, 2010 (3) Ker LT 941,
  • Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66,
  • Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB),
  • Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210.
  • Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB)

Cancellation can be equated to Rescission in Contract

A deed of cancellation amounts to rescission of contract. (In contractual matters the term recession is used to denote cancellation.) If it is viewed in the light of Section 62 of the Indian Contract Act, the cancellation (being a recession) must be done bilaterally.

Who can seek Cancellation

Section 31 makes it clear – one can seek Cancellation if –

  • the written instrument stands against his interest
  • the instrument is void or voidable (or void so far as that person is concerned)
  • he has a  reasonable apprehension that the instrument, if left outstanding may cause serious injury to him.

Can the True Owner Seek Cancellation of a Deed, Executed by a Stranger to the Property

No.

Sect. 31 of the Specific Relief Act does notgive a right to a stranger to a document (including the true owner of the property) to sue for cancellation. That is, when an immovable property is transferred by a person without authority to a third person, the true owner cannot file a suit under Sec. 31 of the Specific Relief Act; such a suit is not maintainable. See:

  • Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1
  • Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57,
  • Deccan Paper Mills Co. Ltd. Versus Regency Mahavir Properties; (2021) 4 SCC 786,
  • Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330.

The Full Bench of the Madras High Court, in Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1, said analysing Sec. 39 of the Specific Relief Act, 1877 (pari materia provision to Sec. 31 of the 1963 Act) as follows:

  • “13. … The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument :
    • (1) the instrument is void or voidable against the plaintiff;
    • (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding;
    • (3) in the circumstances of the case the court considers it proper to grant this relief of preventive justice.
  • On the third aspect of the question the English and American authorities hold that where the document is void on its face the court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the court.
  • 14. The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party asserting a hostile title creates a document. Thus relief under S. 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.”

After quoting Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1, it was held (R.F. Nariman, J.) in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, AIR 2020 SC 4047, as under:

  • “A reading of the aforesaid judgment of the Full Bench would make the position in law crystal clear. The expression “any person” does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party….
  • … A reading of section 31(1) then shows that when a written instrument is adjudged void or voidable, the Court may then order it to be delivered up to the plaintiff and cancelled – in exactly the same way as a suit for rescission of a contract under section 29. Thus far, it is clear that the action under section 31(1) is strictly an action inter parties or by persons who obtained derivative title from the parties, and is thus in personam.”

In Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57, it is held as under:

  • “36. What would be the remedy for the person who actually and factually holds a valid title to a property in respect of which a fraudulent transfer was effected by deceitful vendors and vendees or deceitful vendors and genuine vendees, who parted with consideration. The legal maxims ‘nemo dat quod non habet’ and ‘nemo plus juris ad alium transferee potest quam ipse habet’ postulate that where property is sold by a person who is not the owner and who does not sell under the authority or consent of the real owner, the buyer acquires no title to the property than the seller had. The Indian law recognizes this principle in various provisions of various statutes which in pith and substance deal with Contracts, Transfer of property and Specific relief (See Sections 17, 18, 19, 20, 23, 25 and 29 of the Contract Act; Sections 6(h), 7, 25, 38, 42 to 48, 52, 53 and 55 of TP Act and Sections 13, 15, 17, 21, 31 and 34 of the Specific Relief Act)…..
  • 77. In the considered opinion of this Court if a person sells away the property belonging to other, it would certainly be fraud on the statute. It would be adding insult to injury, if such person is asked to go to civil Court and get the subsequent sale deed cancelled or seek a declaration. Be it also noted that under common law, as discussed supra, the title of a person remains intact even if a stranger conveys that title to another stranger, which is ineffective”

In Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330, after considering all the above decisions, it is held as under:

  • “34. What follows from the above settled position of law, is that an executant can seek cancellation of a registered instrument on the ground of fraud, by a suit filed under Section 31 of the Specific Relief Act. In case, where a stranger without any title has executed a sale, such a suit will not lie under Section 31. Real owner may file a suit under Section 34, if his peaceful enjoyment of ownership right is impinged due to the said sale.”

When one is NOT PARTY to Document, No Need to Annul by Cancellation

It is held in Y. G. Gurukul v. Y. Subrahmanyam, AIR 1957 AP 955, as under:

  • “When a person is not eo-nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree. (Followed in Sankaran v. Velukutty, 1986 Ker LT 794.)

In Usman Kurikkal v. Parappur Achuthan Nair, ILR 2012-3 Ker 343; 2012 3 KHC 89, it is held as under:

  • “Plaintiff is neither a party to the sale deed nor a party to the resolution empowering the Board to execute the sale deed. The prayer in the plaint is essentially for a declaration that the sale deed is not valid and binding on the plaintiff. The plaintiff has not sought for a cancellation of the sale deed obviously because he was not an executant thereto. The plaintiff can very well ignore the sale deed and need not seek its annulment as has been held in Sankaran v. Velukutty (1986 KLT 794).”
  • See also: SR Suresh Babu v. Beena, 2022 KHC OnLine 196.

The Supreme Court observed in V.  Kalyanaswamy v. L.  Bakthavatsalam, 2020 3 RCR(Civ) 404; 2020 9 Scale 367, as under:

  • “Plaintiffs-appellants in OS No. 36 of 1963 were not parties to the suit in 1958 and the compromise in OS No. 71 of 1958 will not bind the appellants.”

Incumbent for the Executant to Seek Cancellation of Sale Deeds

It is held in Chellakannu v. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, that the word “Cancellation” implies that the persons suing should be a party to the document; and that it is incumbent on the executant of the document (for avoiding its binding nature) to seek cancellation of sale deeds, and a prayer to declare the sale deeds as invalid  tantamount to cancellation; and therefore, court fee applicable to cancellation has to be paid. Our Apex Court approved this decision (Chellakannu v. Kolanji) in J. Vasanthi v. N. Ramani Kanthammal, AIR 2017 SC 3813.

Cancellation of alienations in Partition Suits

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that in Partition of property, it is not always necessary for a plaintiff in a suit for partition to seek cancellation of alienations.

Propositions as to Questioning a Deed WHERE ONE is NOT a Party

In Noorul Hoda v. Bibi Rafiunnisa, 1996 (7) SCC 767, our Apex Court held as follows:

  • “When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded.” 

In Chellakannuv. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, it is observed as under:

  • “12. The word “Cancellation” implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the suit is one for cancellation. In the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the Plaintiff cannot seek for any further relief without setting aside the Sale Deeds.

Where one person is not a party to a deed, following propositions can be laid down:

  1. Where a deed is ‘null and wholly void‘ (e.g., unregistered sale/gift), he can simply avoid the deed and advance with other reliefs.
    • Limitation statute will have no application in such cases.
  2. If it is not ‘null and wholly void‘, he cannot simply avoid the deed and advance with other reliefs.
    • But, in such cases, it is not mandatory to seek ‘annulment’ of the deed – by ‘setting it aside’ or ‘cancelling it’.
    • It will be sufficient – to resort to “appropriate proceeding”, for avoiding the same, before a court of law, seeking proper declaration or otherwise.
    • It must be done within the limitation period prescribed.
    • In such cases the plaintiff need not pay Court Fee for ‘cancellation’ of a deed; it will be sufficient to pay the fee for ‘declaration’.

Partial or Complete Cancellation

In a proper case it may be possible to cancel a part of the document. But, if it is an indivisible agreement such bifurcation is not possible. It is held in Laxmanlal K. Pandit v. Mulshankar Pitambardas, (1908) 10 BomLR 553 7, as under:

  • “Finally, it was urged that even if part of the consideration for the rent note failed, yet part of it should be held not to fail, and to the extent of the part held good relief should be allowed to the plaintiff in this suit. It is, however, clear to us that the agreement was an indivisible agreement. Part of a single consideration for one object was unlawful, and therefore the whole agreement is void under Section 24 of the Contract Act. As was said by Mr. Justice Chitty in Baker v. Hedgecock (1888) 39 Ch. D. 520 it is not possible for the Court to “create or carve out a new covenant for the sake of validating an instrument which would otherwise be void.” The suit is a suit for rent, and is based upon a rent note which is void.”

PART II

Unilateral Cancellation of Title Deeds

Abstract

  • A registered deed cannot be unilaterally cancelled by its executant. The only remedy available is to invoke Sec. 31, Sp. Relief Act.
    • Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66 (FB),
    • Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB),
    • KV Sudha Rani v. Vijayawada, Guntu, Tenali, 2008(4) ALD 545,
    • Hayagreeva Farms and Developers, Visakhapatnam, v. Govt. of AP, 2014 (3) ALT 3 : 2014 (2) ALD 250
  • If a person is aggrieved by a cancellation deed, the remedy open for him is to seek appropriate relief in the civil Court.
    • Yanala Malleswari v. Ananthula Sayamma, 2006 (6) ALT 523: 2007 (1) CTC 97.
  • Registrar is not competent to cancel the registered document.
  • Does the Registering Authority hold a Quasi-Judicial power?
    • No. (See: Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767. (Approved in Park View Enterprises v. State Government of Tamil Nadu, AIR 1990 Mad 251.)
  • Does the Registrar hold power to desist from registering a document, submitted along with the necessary documents?
    • No. (See: Madras High Court – D. Sachidhanandam v. The Registrar/ Inspector General – 2022, April)
  • Does the Registrar has duty to ensure – Document is presented in accordance with law?
    • Yes. (See: Asset Reconstruction Company v. SP Velayutham, 2022-8 SCC 210.)

Person aggrieved by a deed has to seek relief in Civil Court

Full Bench of Andhra High Court, in Yanala Malleswari v. Ananthula Sayamma, 2006 (6) ALT 523: 2007 (1) CTC 97, held that an if a person is aggrieved by a deed, the remedy for hism is to seek appropriate relief in the civil Court. It was observed as under:

  •  “26. It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written instrument. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are: the written instrument is void or voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury.
  • Insofar as Section 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again, the person who claims the right to property can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff.
  • The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration.”

It was also observed as to questioning a cancellation deed as under:

  • “We, therefore, hold that whenever a person is aggrieved by a cancellation deed, the remedy is to seek appropriate relief in the civil Court and writ petition is not proper remedy.”

Unilateral Cancellation by Regd. Deed, Stands Against Sec. 31

  • Pavakkal Noble John v. Kerala State, 2010 (3) Ker LT 941,
  • Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66,
  • Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB),
  • Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210.

In Sudhakar Reddy v. Lakshmamma, 2014 (4) ALT 404, 2011 (4) ALD 325 (DB), the High Court after quoting the aforesaid passage from Yanala Malleswari v. Ananthula Sayamma, it was held as under:

  • “15. In view of the principle enunciated in the case cited supra, the finding of the trial Court that the Ex.B1 gift deed executed in favour of the defendant was cancelled is not sustainable. The only remedy available to the donor is to file a suit for cancellation of Ex.B1 gift deed, as provided Section 31 of the Specific Relief Act.”

In Sudhakara Reddy v. Lakshmamma, (supra), the High Court found fault with the lower courts for framing an issue so as to embrace a declaration. The High Court held as under:

  • “The plaintiff filed the suit seeking injunction simplicitor. In such circumstances, the trial Court ought not to have framed the issue, which is in the nature of a declaration. The trial Court decreed the suit basing on oral evidence of PWs.1 to 3 and also on a wrong premise that Ex.B.1 gift deed was cancelled by late Gowramma, during her life time.”

The Andhra High Court held in KV Sudha Rani v. Vijayawada, Guntu, Tenali, Mangalagiri UDA, 2008(4) ALD 545, on an analysis of the provisions of the Transfer of Property Act, 1882, and the Registration Act, 1908, that when once the sale deed is executed, the title in the property passes to the purchaser forthwith. The person who seeks cancellation of the registered document has two remedies available to him under law, namely (1) to seek invalidation under Section 31 of the Specific Relief Act, and (2) to seek cancellation following rule 26(k)(i) of the Rules framed by the State of Andhra Pradesh.

  • Note: Similar provision that of rule 26(k)(i) of the AP Rules is not in all other States.

It was further held that except those two remedies, no person or authority has the right to unilaterally invalidate a registered document on any ground. (Followed in: Hayagreeva Farms and Developers, Visakhapatnam, v. Govt. of AP, 2014 (3) ALT 3 : 2014 (2) ALD 250.)

Unilateral Cancellation of a Sale Deed Bad in Law

Unilateral cancellation of a deed of sale is bad (Full Bench in Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66; Latif Estate Line India Ltd. Vs Hadeeja Ammal, AIR 2011 Mad 66; KV Sudha Rani v. Vijayawada, Guntu, Tenali, Mangalagiri UDA, 2008(4) ALD 545).  Such a cancellation deed cannot be accepted for registration.

Our Apex Court analysed the Madras decision in Latif Estate Line India Ltd. v. Hadeeja Ammal, in the following words in Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210:

  • “41. The Full Bench decision of the Madras High Court in Latif Estate Line India Ltd. Vs Hadeeja Ammal, AIR 2011 Mad 66,  arose out of a controversy as to whether a deed of cancellation of sale can or cannot be accepted for registration. The Full Bench explained the circumstances under which a deed of cancellation, presented by both the vendor and the purchaser, can be accepted. But the Full Bench categorically held that a deed of unilateral cancellation cannot even be accepted for registration.
  • This proposition actually goes in support of the contention of the appellant that the Registering Officer has a duty to see whether the document presented for registration has been presented in accordance with law or not. In fact the decision of the Full Bench itself arose out of a writ petition challenging the act of the Registering Authority in allowing the registration of the deeds of unilateral cancellation of sale deeds.”

Cancellation of a deed on the Ground, ‘Fraud’

Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, is an authority on the following mayyers:

  • Some irregularity, by itself, cannot result in a fraudulent action of the State Authority;
  • Allegations relating to ‘fraud’ are questions of fact which must be pleaded and proved.
  • An aggrieved person by registration of a (fraudulent) document is free to challenge its validity before the civil court.

It is held as under:

  • “36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the 1908 Act enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the 1908 Act can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the civil court.”

Pleadings on Cancellation of a deed on the Ground, ‘Fraud’

The Supreme Court held in CS Ramaswamy v. VK Senthil, 2022 SCC OnLine SC 1330, as under:

  • “7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents – original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation.”

Cancellation of a Regd. deed on Ground, ‘Undue Influence’ – Presumption

In Bellachi v. Pakeeran (2009) 12 SCC 95, our Apex Court held as under:

  • “15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence …..
  • 16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.”

The Apex Court quoted the following from Afsar Sheikh v. Soleman Bibi, 1976 (2) SCC 142-:

  • “4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiff’s mother. The defendant’s father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba.”
  • “20. It is well-settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed. is not liable to be reopened in second appeal (Satgur Prasad v. Har Narain Das; Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. ).”
  • Bellachi v. Pakeeran (2009) 12 SCC 95 is referred to in: Keshav v. Gian Chand, AIR  2022 SC 678.

Does Registering Authority hold a Quasi-Judicial power?

  • No. (Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767.)

In the authoritative pronouncement in Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, our Apex Court held in para 41 as under:

  • “Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority.
  • The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents.
  • He is not expected to evaluate the title or irregularity in the document as such.
  • The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908.
  • In the case of Park View Enterprises (Park View Enterprises v. State Government of Tamil Nadu, AIR 1990 Mad 251) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition.”

In Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767, the Apex Court did not consider whether the executants of a deed can ‘unilaterally cancel’ it. It was held-

  • “It is open to the appellant to contend in those (civil court) proceedings that the Extinguishment Deed could not have been unilaterally executed by the Society.”

Does Registrar has duty to see – Document presented in accordance with law?

  • Yes. (Asset Reconstruction Co. v. SP Velayutham,2022-8 SCC 210.)

In Asset Reconstruction Company v. SP Velayutham (2022) 8 SCC 210, the Supreme Court made the following observation as to Satya Pal Anand v. State of Madhya Pradesh,  (2016) 10 SCC 767.

  • 42. …  The decision in Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767, arose out a case where the allotment of a plot made by a cooperative society was cancelled unilaterally by a deed of extinguishment, by the society. The allottee raised a dispute which ended in a compromise but notwithstanding the compromise the allottee raised a dispute under the relevant provisions of the Madhya Pradesh Cooperative Societies Act, 1960. When the dispute was pending, the allottee moved the Registering Officer for the cancellation of the deed of transfer executed in favour of the subsequent purchasers. When the Registering Authority refused to comply with the demand, a writ petition was moved seeking a declaration that the deed of extinguishment and the subsequent sales were null and void. The High Court dismissed the writ petition on the ground that a dispute was already pending before the competent authority under the Cooperative Societies Act. When the order of dismissal passed by the High Court was challenged before this Court, there was a difference of opinion as to whether the issue was directly covered by the decision of this Court in Thota Ganga Laxmi and Another v. Government of Andhra Pradesh and Others, (2010) 15 SCC 206 . Therefore, the matter was placed before a three Judge Bench. While upholding the decision of the High Court, the three member Bench held in Satya Pal Anand (supra) that there was no rule in the State of Madhya Pradesh similar to Rule 26(k)(i) of the Rules issued by the State of Andhra Pradeshunder Section 69 of the Registration Act, 1908 and that therefore the decision in Thota Ganga Laxmi (supra) cannot be invoked.
  • 43. The decision in Satya Pal Anand (supra) cannot go to the rescue of the contesting respondents, for the simple reason that the writ petitioner in that case, first accepted a compromise and then raised a dispute under the Cooperative Societies Act (which is akin to a civil suit) and thereafter approached the High Court under Article 226 for a declaration, which he could have sought only in the already instituted proceedings. The very fact that Thota Ganga Laxmi was sought to be distinguished on the basis of the express provision contained in the Rules of the State of A.P., would indicate that there is no absolute bar for the High Court to exercise jurisdiction under Article 226.”

Asset Reconstruction Company v. SP Velayutham, (2022) 8 SCC 210

It was a case concerning Government properties. The sale deed came for consideration in the case was executed by a Power of Attorney. The Apex Court said as to the PoA as under:

  • “35. Apart from the fact that clause 7 extracted above expressly prohibited the power to encumber, there was also no stipulation authorising S.P. Velayutham to appear before any Registering Officer for the purpose of sale, as an agent.”

The Apex Court upheld the authority of the Sub Registrar observing the following-

  • “46. But we are not concerned in this case with the question whether the PoA relied upon by the power agent S.P. Velayutham in the sale deed executed by him, required authentication and whether the Registering Authority committed a blunder in accepting the sale deed presented by him for registration, without verifying the authentication of the PoA or not. We are concerned in this case with the most fundamental question whether the Registering Authority could have turned a blind eye to the fact that the deed of PoA on the basis of which the sale deed was executed as well as presented for registration by S.P. Velayutham contained an express prohibition for the power agent to create an encumbrance on the property, especially in the light of the Rules framed under section 69 of the Act. The decision in Thota Ganga Laxmi, was in a way approved by a 3 ­member Bench in Satya Pal Anand, on the basis of the rules in the State of Andhra Pradesh, showing thereby that statutory rules also play a crucial role. Rajni Tandon is not an authority for holding that the registering Authority has no duty even to verify the presence or absence of a power of sale in the deed of PoA, especially in the light of the rules.”

Finally allowing the appeal the Supreme Court held as under:

  • “58. … If the Registering Officer under the Act is construed as performing only a mechanical role without any independent mind of his own, then even Government properties may be sold and the documents registered by unscrupulous persons driving the parties to go to civil court. Such an interpretation may not advance the cause of justice.”

Presumption on Registered Document

It is held in Prem Singh v. Birbal, (2006) 5 SCC 353, that there is a presumption that a registered document is validly executed.

Court Proceeding Essential for Determining Registration Vitiated

It is pointed out in Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330, that the complex questions of title of the executant, can only be adjudicated in a civil suit; and that in cases where title of an executant of a deed is disputed, based on genealogy or a right of inheritance, cannot be decided by a Registrar. It is also observed as under:

  • “Under Section 48 of the Registration Act, title passes in a property on the registration of the deed of conveyance witnessing the transfer. Annulment of the registration therefore, will entail legal consequences affecting the title which had passed on its registration. Whether such a registration was valid or was vitiated by fraud is a triable issue which can be determined only in a civil or criminal proceeding by a Court of competent jurisdiction.”

Power of Registrar to Cancel a Deed – Not quasi judicial but Administrative

It is held in Satya Pal Anand v. State of M.P., (2016) 10 SCC 767, as under:

  • “There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered”. (Quoted to in: Vinod Shankar Jha v. State of Jharkhand, 2024 1 CurCC 330.)

It is observed in Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330, as under:

  • There cannot be two views that existing provisions of the Registration Act, do not confer the Registrar with power to cancel a document which has been already registered. Even in cases of fraud or forgery, Registration Act, does not confer such a power on the Registrar to cancel a registered instrument. Under the scheme of the Registration Act, 1908, Registrar has a power to refuse the registration of deed under different provisions of the Act, but does not extend to cancellation of it. Scope of scrutiny by the registering authority, is confined to the pre-registration stage and not after the document is executed and registered.

But, the TN Government being found that the then existing provisions of the Registration Act failed to curb fraudulent registrations, powers were conferred on the Registrar, by an executive order, to cancel such deeds. The Tamil Nadu circular  was challenged before the High Court and  in Ramasamy v. State of Tamil Nadu, 2014 (4) CTC 627, wherein the Madras High Court (Madurai Bench) upheld that Circular held that power of cancellation is not quasi-judicial in nature but administrative and the procedure for registration as laid down under Section 68 of the Registration Act mandates the registration that he will perform read with Section 34 of the said Act, that the Registering Officer shall enquire whether or not such document was executed by the persons by whom in purported to have been executed by satisfying himself to be identity of the person executing the same. (Referred to in: Vinod Shankar Jha v. State of Jharkhand, 2024 1 CurCC 330.)

The Court in Ramasamy v. State of Tamil Nadu, 2014 (4) CTC 627, relied the Supreme Court decision in Indian Bank v. Satyam Fibers (India) Pvt. Ltd., (1996) 5 SCC 550, wherein it has been held that fraud which vitiates the entire proceeding and he can very well recall or rescinded the order on being satisfied after due enquiry that a particular document was registered after playing fraud under the inherent power of Court under Section 21 of the General Classes Act.

Unilateral Cancellation of SETTLEMENT DEED When there was No Reservation

In Pavakkal Noble John v. Kerala State, 2010 (3) Ker LT 941 (upheld in Santhosh Antonio S. Netto v. Joshy Thomas, 2020-3 Ker LT 408), the Kerala High Court pointed out that the Registrar must refuse to register the cancellation of sale deed executed unilaterally.

In Sreedevi v. The Inspector General of Registration (January, 2020, Kerala High Court), it was found that there was no reservation in the settlement deed for cancellation by the executant unilaterally. Then it was pointed out as under:

  • “In such circumstances, the registration of cancellation deed is illegal. Once the subject matter of the settlement deed is conveyed to the donee, the donee becomes the absolute owner. The cancellation of a registered deed executed unilaterally will create impediment in the enjoyment of the property. No doubt, the executant of such deed is having a remedy under the Specific Relief Act to cancel such deed before the Civil Court. But they cannot execute a cancellation deed and cancel the settlement deed executed in favour of the donee.”

The Kerala High Court repeated the above view in SR Suresh Babu v. Beena, 2022 KHC OnLine 196, as regards a settlement deed, in the following words:

  • “In the absence of any right for revocation of the deed in the deed itself, unilateral execution of the cancellation deed according to us is bad in law and is legally unsustainable.”

Cancellation of SETTLEMENT DEED – Cannot be Challenged by Writ Petition

In the decision of the Madras High Court in D. Sachidhanandam v. The Registrar/ Inspector General (2022, April), a settlement deed was cancelled by the settleor by a registered cancellation deed. It was challenged by the settlee in a writ petition. Dismissing the writ petition  the High Court held as under:

  • “The registering authority has no power to desist from registering a document, once it is submitted to him along with the necessary documents, which are mandated under the Act and once the document is properly registered, the registering authority, in the absence of any express provision under the Act or the Rules, is not competent to cancel the registered document.
  • The writ petitions, at the instance of the petitioners are wholly misconceived and the writ jurisdiction cannot be invoked seeking cancellation of the respective cancellation deeds and this Court, sitting under Article 226 of the Constitution, cannot issue a writ directing the registering authority to cancel the registered document, when it involves disputed questions of fact between the parties.  Further, the remedy open to the petitioners/aggrieved party is only to file a civil suit before the appropriate jurisdictional court and a writ petition is not maintainable.”

See also: Gunmala Jain v. GNCT of Delhi, 2021 SCC OnLine Del 5484.

Cancellation of TRUST DEED – Cannot be Challenged by Writ Petition

In CK Saseendran v. Inspector General of Registration, 2021-6 Ker LT 382, one cancel-deed was registered, cancelling a trust deed. The reason for revoking the trust deed stated in the cancellation deed was that the general body of the Association did not ratify the registration of the trust deed and the general body resolved to cancel the trust deed. The legality of the cancellation deed and its registration was challenged in the Writ Petition.

Registering Officer cannot enquire about the legal validity of a document

The High Court (in CK Saseendran v. Inspector General of Registration, 2021-6 Ker LT 382) accepted the contention of the Respondents that (i) the Registering Officer cannot enquire about the legal validity of a document (as per Rule 67 of the Kerala Registration Rules, 1958), and (ii) that the Registering Officer can refuse a document only under Rule 191 (read with Rule 67); and that none of such heads/ conditions existed to refuse registration of the cancellation deed.

  • Rule 67 of the Kerala Registration Rules
  • Rule 67- It forms no part of a Registering Officer’s duty to enquire into the validity of a document [except documents styled as marriage agreement] brought to him for registration or to attend 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 minor or an idiot or a lunatic.

Pavakkal Noble John v. Kerala State, 2010 3 Ker LT 941 (upheld in Santhosh Antonio S. Netto v. Joshy Thomas, 2020-3 Ker LT 408), was distinguished pointing out that it was a case of cancellation of (i) a sale deed (ii) unilaterally executed without the knowledge and consent of the other parties and without complying with Section 32A of the Registration Act, 1908. The writ petition, CK Saseendran v. Inspector General, was dismissed ‘without prejudice to the petitioners’ right, if any, to take recourse to any legal remedies as may be available in law’.

It Is Logically Impossible For A Person Not A Party To Ask For Its Cancellation

It is said in Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, as under:

  • “33. In fact, it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision rendered in Vellayya Konar v. Ramaswami, 1939 SCC OnLine Mad 149, (1939) 2 MLJ 400, AIR 1939 Mad 894, thus:
  • “When, the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void ‘in toto’, and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he Is not in a position to get that decree or that deed cancelled ‘in toto’. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy, therefore in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed.”
  • 34. Therefore, filing a suit for cancellation of a sale deed and seeking a declaration that a particular document is inoperative as against the plaintiff are two distinct, separate suits. The plaintiff in the present case, not being the executant of the sale deed dated 05.05.1997 executed in favour of the respondent no. 1, was therefore, not obligated to sue for its cancellation under Section 31 of the Act, 1963. The question that remains is whether the plaintiff ought to have sought for a declaration that the sale deed dated 05.05.1997 was inoperative in so far as he is concerned or is not binding on him.”

Declaration Of Title Is As Good As A Relief Of Cancellation Of The Sale Deed

In Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, it is held further as under:

  • “36. Therefore, the High Court having concurred with the Courts below on the legality and validity of the Gift Deed should not have dismissed the suit only on the ground that the plaintiff failed to pray for cancellation of the sale deed. The High Court should have kept the settled position of law in mind that the declaration of title is as good as a relief of cancellation of the sale deed or at least, a declaration that the sale deed is not binding on the plaintiff being void and thus non est.”

Proper Reliefs Can Be Granted, Though Not Directly Or Specifically Claimed

In Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, it is held further as under:

  • “37. Furthermore, it is a well-known and settled principle of law that the plaint must be read as a whole and the actual relief sought can also be culled out from the averments of the plaint. Those reliefs can be granted, if there is evidence and circumstances justifying the grant of such relief, though not directly or specifically claimed, or asked as a relief. The plaintiff had averred in his plaint that the original defendant nos. 1 to 6 had no title or saleable rights over the suit property. This reflects the intention of the plaintiff to not be bound by any instrument which they may have executed in favour of another party.
  • 38. Courts have ample inherent powers and indeed it is their duty to shape their declaration in such a way that they may operate to afford the relief which the justice of the case requires. Section 34 of the Act, 1963 is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. Section 34 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 34. The circumstances in which a declaratory decree under Section 34 should be awarded is a matter of discretion depending upon the facts of each case. [See: Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors., reported in (1975) 2 SCC 530]”

End Notes: 1

Sec.31 of the Specific Relief Act

Sec.31 of the Specific Relief Act reads as under:

  • When cancellation may be ordered- (1) Any person against whom a written instrument if 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.

Illustrations

  •  (a) A, the owner of a ship, by fraudulently representing her to be seaworthy induces B an underwriter, to insure her. B may obtain the cancellation of the policy.
  • (b) A conveys land to B who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him C may obtain the cancellation of the forged instrument.
  • (c) A, representing that the tenants of his land were all at Will, sells it to B and conveys it to him by an instrument, dated the 1st January, 1877 soon, after that day. A fraudulently grants to C a lease of part of the lands, dated the 1st October, 1876 and procures the land to be registered under the Indian Registration Act. B may obtain the cancellation of this lease.
  • (d) A agrees to sell and deliver a ship to B, to be paid for by D’s acceptance of four bills of exchange, for sums accounting to Rs. 30,000 to be drawn by A or B. The bill are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the Bills. B may obtain the cancellation of all the bills.

End Notes: 2

Section 62, Contract Act reads as under:

  • 62. Effect of novation, rescission, and alteration of contract – If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract, need not be performed.

End Notes: 3

Sec. 39, Contract Act says as to ‘putting an end’ to the contract. It reads as under:

  • 39. Effect of refusal of party to perform promise wholly – When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

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