Procedure to cancel the Registered sale deed.

The sale deed which was duly registered by both the parties under mutual agreement can be cancelled under following circumstances.

1.    When you are  Challenging registration of a unilaterally executed cancellation of a sale deed, a writ petition is maintainable under Article 226 of the Constitution of India.

2.    A cancellation of a sale deed executed by mutual consent by all parties to the saledeed, if presented for registration, Registering Officer is bound to register the same if the other provisions like Section 32-A of the Registration Act are complied with.

3.    The Registering Officer is obliged legally to reject and to refuse to register a unilaterally executed deed of cancellation of a sale deed without the knowledge and consent of other parties to the sale deed.

The interest of the landowners and the public if a deed of cancellation is treated as a re-conveyance by which it becomes necessary for both the parties to the document to sign and appear before the Registrar and complete the formalities of registration as that of sale deed. On the other hand, unilateral cancellation of sale deed would lead to anomalous situation and multiplicity of litigations. Learned counsel submitted that if this Court holds that a deed of cancellation can be made only bilaterally and in the case of a sale deed it would be a reconveyance of a property, then the powers of the Registry to receive the said document would also be settled and the legislation would be given a purposeful meaning.

There is no provision in the Transfer of Property Act or in the Registration Act, which deals with the cancellation of deed of sale. The reason according to us is that the execution of a deed of cancellation by the vendor does not create, assign, limit or extinguish any right, title or interest in the immovable property and the same has no effect in the eye of law. A provision relating to the cancellation of a document is provided in Section 31 of the Specific Relief Act, 1963 (Old Section  39). Section 31 reads as under:- 31.When cancellation may be ordered:- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

From the reading of the aforesaid provision, it is manifest that three conditions are requisite for the exercise of jurisdiction to cancel an instrument ie., (1) An instrument is avoidable against the Sellor or the original property owner;

(2) The Sellor or original property owner may reasonably apprehend serious injury by the instrument being left or outstanding; and

(3) In the circumstances of the case, the Court considers it proper to grant this relief of preventive justice.

The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.

Author K.P.Satish Kumar M.L.

Leading Civil Lawyer, High Court, Madras

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