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
You can contact Team Daniel & Daniel @ 9840802218
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