Madras High Court
J.Padmavathi vs T.R.Muthuswami on 20 January, 2025
2025:MHC:171
S.A.No.155 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 21 / 10 / 2024
JUDGMENT PRONOUNCED ON : 20 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.155 OF 2017
AND
CMP NO.3236 OF 2017
J.Padmavathi ... Appellant / Appellant /
2nd Defendant
Vs.
1.T.R.Muthuswami
2.Thamaraiveni
3.Kavitha
4.Karthick ... Respondents / Respondents /
Plaintiffs
5.District Registrar
Karungalpalayam,
Erode. ... Respondent / Respondent /
3rd Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated July
15, 2015 made in A.S.No.9 of 2014 on the file of the learned Subordinate
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Judge, Bhavani, confirming the Judgment and Decree dated August 30,
2013 made in O.S.No.195 of 2007 on the file of the learned I Additional
District Munsif, Bhavani.
For Appellant : Mr.S.Parthasarathy
Senior Counsel for Mr.V.S.Kesavan
For Respondents : Mr.T.M.Hariharan
1 to 4
For Respondent-5 : Mrs.R.Anitha
Special Government Pleader
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated July 15, 2015 passed in A.S.No.9 of 2014 by the
‘Subordinate Court, Bhavani’ [‘First Appellate Court’ for brevity], whereby
the Judgment and Decree dated August 30, 2013 passed in O.S.No.195 of
2007 by the ‘I Additional District Munsif Court, Bhavani’ [‘Trial Court’ for
brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF’S CASE
3. The first plaintiff is the father of plaintiff nos.2 to 4. The
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Suit Property originally belonged to Karuppa Gounder, who is the
maternal grandfather of the first plaintiff. After the demise of Karuppa
Gounder, his three daughters namely, Velammal, Kuttiammal and
Lakshmiammal became the owners of the Suit Property and they jointly
enjoyed it. On May 9, 1972, Velammal sold her share within specific
boundaries to the 1st plaintiff. Subsequently, on December 5, 1990
Kuttiammal and Lakshmiammal bequeathed their shares to the 1st plaintiff
through a registered Will. The Will came into force and the plaintiffs are in
possession and enjoyment of the Suit Property.
3.1. In 2001, the 1st plaintiff borrowed a sum of Rs.10,000/-
from the 4th defendant with interest at 60% per annum and could not repay
the same. At that time, the 4th defendant informed the 1st plaintiff that the
outstanding due was Rs.85,000/- and insisted him to execute a General
Power of Attorney [‘G.P.A.’ for short] in favour of the 1st defendant as
security and promised him that it would be cancelled upon repayment of
loan amount. Accordingly, the 1st plaintiff executed a G.P.A. on February
21, 2002 and it was duly registered. But, the 1st defendant misused this
power and entered into a Sale Agreement with the 2nd defendant on
February 22, 2002 in respect of Suit Property for a sum of Rs.2,00,000/-
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without the plaintiff’s consent and the 4th defendant also received an
advance of Rs.1,80,000/-. Upon learning the same, the plaintiffs cancelled
the G.P.A. on July 26, 2002 and filed an objection on July 29, 2002 before
the Sub-Registrar, Bhavani. Despite this, the 1st defendant continued with
his attempts to alienate the Suit Property.
3.2. The 1st defendant had executed a Sale Deed in favour of
the 2nd defendant and when it was presented for registration, the Sub-
Registrar, Bhavani refused to register the said document and returned the
same vide Order dated October 10, 2002. Aggrieved by the said Order, the
second defendant preferred an appeal before the District Registrar / third
defendant and the same was pending.
3.3. Subsequently, on June 27, 2003, the plaintiffs caused a
legal notice to the defendants 1, 2 and 4, and the same was returned by the
defendants 2 and 4. The plaintiffs remain in possession of the Suit
Property, using it for residential and agricultural purposes. On June 20,
2007, the defendants attempted to trespass into the Suit Property and
thereby, disturbed the peaceful possession and enjoyment of the Suit
Property by the plaintiffs.
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3.4. Further, on May 31, 2010, pending the Original Suit, the
third defendant vide his Order dated May 31, 2010 directed the Sub
Registrar, Bhavani to register the impugned Sale Deed and the same was
registered accordingly on June 3, 2010 as Document No.3323 of 2010.
3.5. According to the plaintiffs, the G.P.A. was executed by
the first plaintiff under threat and coercion and it was never intended to
confer any ownership or sale rights to 1st defendant. Therefore, the
plaintiffs filed the Suit praying for declaration of title, for declaration that
the third defendant’s Order dated May 31, 2010 is bad in law, for
declaration that the alleged Sale Deed is not binding on the plaintiff and
does not confer any title to the second defendant and for permanent
injunction restraining the defendants from interfering with their possession
and enjoyment of the Suit Property.
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FIRST AND SECOND DEFENDANTS’ CASE
4. The defendants 1 and 2 denied the allegations made by the
plaintiffs in the plaint. The relationship stated by the plaintiffs are
admitted. The title traced by the plaintiffs to the Suit Property is true.
According to the defendants 1 and 2, the 1st plaintiff was in need of money
and approached 1st defendant who was doing real estate business wanting
to sell the Suit Property. Therefore, to sell the Suit Property, on February
21, 2002, a G.P.A. was executed by the plaintiffs along with one
Kuttiammal, who is the mother of the first plaintiff. The second defendant
approached the 1st defendant, and entered into a registered Sale Agreement
dated February 22, 2002 agreeing to purchase the Suit Property for
Rs.2,00,000/-. An advance of Rs.1,80,000/- was received by first
defendant from second defendant and the same was paid to the plaintiffs
on the same day. It was agreed that the period of performance was one
year from the date of Sale Agreement. Pursuant to the Sale Agreement,
upon receiving the balance sale consideration of Rs.20,000/- from second
defendant, the first defendant executed a Sale Deed on August 2, 2002 in
respect of the Suit Property and presented the same for registration on the
same day. The Sub-Registrar, Bhavani kept the same pending for
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registration on the ground that the first plaintiff had given an objection on
July 29, 2002 that the G.P.A. dated February 21, 2002 was cancelled on
July 26, 2002 by a Cancellation Deed registered at Kavundapadi ‘Sub-
Registrar Office’ [‘S.R.O.’] and eventually, he refused to register it vide
his Order dated October 10, 2002. The second defendant appealed over the
same before the District Registrar, Erode / third defendant in Appeal Order
No.2 of 2002 and the same was allowed on May 31, 2010 and
consequently, the Sale Deed was registered on June 3, 2010.
4.1. The Suit is not maintainable in the absence of prayer for
cancellation of Sale Deed & G.P.A. as well as in the absence of payment
of Court Fee under Section 40 of the Tamil Nadu Court-Fee and Suits
Valuation Act, 1955. Further, neither the first defendant nor the second
defendant was given any notice either orally or in writing regarding the
alleged cancellation of the G.P.A. Accordingly, the defendants 1 and 2
sought to dismiss the Suit.
THIRD DEFENDANT’S CASE
5. The third defendant filed written statement denying the
allegations made by the plaintiffs in the plaint and reiterating the events
narrated by the first and second defendant in their written statements
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relating to registration of the Sale Deed. He contended that he is not a
necessary party to the Suit.
TRIAL COURT
6. At trial, the 1st plaintiff was examined as P.W.1 and three
other witnesses were examined as P.W.2 to P.W.4 and Ex-A.1 to Ex-A.17
were marked on the side of the plaintiff. On the side of the defendants, 1st
and 2nd defendants were examined as D.W.1 and D.W.2 respectively and
Ex-B.1 to Ex-B.8 were marked.
7. The Trial Court, after analyzing the oral and documentary
evidence, concluded that Ex-A.4 – G.P.A. is a sham and nominal document
executed as a security for the loan obtained by the plaintiffs from fourth
defendant, and its cancellation by the plaintiffs 1, 3 and 4 is valid. The
first plaintiff being the absolute owner of the Suit Property, non-
cancellation of G.P.A. by second plaintiff would not affect the validity of
its cancellation. The Suit valuation and payment of Court Fee are correct.
Since the cancellation of the G.P.A. is valid, the alleged Sale Deed
executed by first defendant in favour of second defendant would not bind
the plaintiffs and the Suit Property. Accordingly, decreed the Suit.
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FIRST APPELLATE COURT
8. Feeling aggrieved, the second defendant preferred an
appeal in A.S.No.9 of 2014 before the First Appellate Court, which upon
hearing both sides, after an elaborate discussion, concurred with the
findings of the Trial Court and dismissed the Appeal Suit.
SECOND APPEAL
9. Feeling aggrieved, the second defendant has preferred this
Second Appeal, which was admitted on November 3, 2023 on the
following substantial question of law:
“Whether the Courts below is right in coming to the
conclusion that the sale deed executed by first defendant in
favour of second defendant is invalid when the execution of
the sale deed was completed even before first defendant
acquired knowledge about the cancellation of power by the
plaintiffs.”ARGUMENTS:
10. Mr.S.Parthasarathy, Senior Counsel for Mr.V.S.Kesavan,
learned Counsel for the appellant / second defendant would argue that on
the date of execution of Ex-A.4 – G.P.A. Deed itself, possession of Suit
Property was handed over to the power agent and hence, Ex-A.4 becomes
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power coupled with interest, and therefore, irrevocable. Pursuant to Ex-
A.4, first defendant executed registered Sale Agreement dated February
22, 2002. On August 2, 2002, first defendant executed Ex-B.5 – Sale Deed
and presented the same for registration before the concerned Sub-Registrar
who rejected it vide Order dated October 10, 2002 citing that the plaintiffs
have raised an objection on July 29, 2002 that Ex-A.4 – G.P.A. Deed was
cancelled on July 26, 2002 by a Cancellation Deed registered at
Kavundapadi S.R.O. The first defendant as a power agent executed Ex-
B.5 – Sale Deed before notice of cancellation of Ex-A.4. The cancellation
came to notice of the defendants 1 and 2 only at the time of registering the
Sale Deed. The alleged cancellation is a fraud on registration, as it is filed
in a different Registrar Office. Notice contemplated under Section 206 of
Indian Contracts Act, 1872 was not complied with and hence the
cancellation of Ex-A.4 is invalid. The refusal Order passed by the Sub-
Registrar, Bhavani was set aside in the appeal and pending the Original
Suit, Ex-B.5- Sale Deed was duly registered. Hence, the plaintiffs have no
right or title over the Suit Property. In any case, the plaintiffs can only
seek accounts from first defendant / power agent and cannot seek
cancellation of Ex-B.5 – Sale Deed. The First Appellate Court and the
Trial Court failed to appreciate the evidence in the right perspective and
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decreed the Suit. Accordingly, he would pray to allow the Second Appeal,
set aside the Judgment and Decree of First Appellate Court as well as the
Trial Court, and dismiss the Suit.
10.1. He would rely on the following decisions in support of
his contentions:
(i) Rayappan’s Case – Judgment of this Court in A.Rayappan Vs.
P.Anthony Pushparaj and Another, reported in 2013 (3) MWN
(Civil) 372 ;
(ii) Neela’s Case – Judgment of this Court in D.Neela Vs.
K.V.Kumar and Others, reported in 2019 (2) MWN (Civil) 752 ;
and
(iii) Ravichandran’s Case – Judgment of this Court in
T.Ravichandran Vs. Mrs.K.Kasthuri and Others, reported in
2019 (3) TLNJ 5 (Civil)
11. Per contra, Mr.T.M.Hariharan, learned Counsel for the
respondents 1 to 4 / plaintiffs would argue that Ex-A.4 – G.P.A. Deed was
not executed with an intention to sell the Suit Property. On the other hand,
it was executed for the purpose of security for loan obtained by the
plaintiffs from fourth defendant. Further, Ex-A.4 was cancelled on July
26, 2002 through a registered Cancellation Deed before Kavundapadi
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S.R.O. The factum of cancellation was informed to first defendant orally
and to the concerned S.R.O. as well in writing. Being fully aware of the
cancellation, Ex-B.5 – Sale Deed has been executed collusively by
defendants 1 and 2 with a view to defeat and defraud the rights of
plaintiffs. Further, the plaintiffs did not receive any consideration as
alleged from first defendant.
11.1. He would further ague that as per Section 54 of the
Transfer of Property Act, 1882, a sale of an immovable property worth
Rs.100/- or more is complete only when the Sale Deed is registered. As
per Section 34 of the ‘Registration Act, 1908’ [‘Reg. Act’ for short], the
Sub-Registrar shall be satisfied of the agent’s right to appear and present
the documents for registration. In other words, the G.P.A. shall be valid
and be in force at the time of registration of the document. Hence, the
refusal to register the alleged Sale Deed by the Sub-Registrar is in
accordance with law. However, pending Suit, the concerned District
Registrar / the third defendant issued an Order directing the Sub-Registrar
to register the Sale Deed which is against the provisions of the Reg. Act.
He ought to have dismissed the appeal.
11.2. He would further argue that the possession remains with
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the plaintiffs and therefore, Ex-A.4 is not power coupled with interest.
Further, without prejudice to the above arguments, he would bring notice
to Ex-B.5 – Sale Deed and argue that even according to the executant, the
market value of Suit Property on the date of Ex-A.4 was Rs.4,58,363/-,
but the alleged Sale Deed recites Rs.2,00,000/- as consideration which
itself demonstrates that the alleged Sale Deed has been executed
collusively to grab the Suit Property from the plaintiffs. The First
Appellate Court and the Trial Court appreciated the evidence in the right
perspective and decreed the Suit. There is no reason to interfere with the
same. Accordingly, he would pray to dismiss the Second Appeal, and
confirm the Judgment and Decree of First Appellate Court as well as the
Trial Court.
11.3. He would rely on the following decisions in support of
his contentions:
(i) Asset Reconstruction’s Case – Judgment of this Court in Asset
Reconstruction Co. (India) Ltd., Mumbai Vs. The Inspector
General of Registration, Chennai and Others, reported in AIR
2016 Madras 123 ;
(ii) Veena Singh’s Case – Judgment of the Hon’ble Supreme Court
in Veena Singh Vs. District Registrar / Additional Collector,https://www.mhc.tn.gov.in/judis Page No.13 of 29
S.A.No.155 of 2017reported in (2022) 7 SCC 1 ;
(iii) Mary’s Case – Judgment of the Hon’ble Supreme Court in
Mary Joyce Poonacha Vs. K.T. Plantations Pvt. Ltd., and
Others, reported in 1995 Supp (2) SCC 459 ;
(iv) Thankamma’s Case – Judgment of the Hon’ble Supreme Court
in Thankamma George Vs. Lilly Thomas and Another, reported
in 2024 SCC OnLine SC 1673 ; and
(v) Sekar’s Case – Judgment of this Court in Sekar Mudaliar Vs.
Shajathi Bi, reported in (1987) 1 MLJ 248
12. Mrs.R.Anitha, Special Government Pleader appearing for
the respondent no.5 / third defendant would argue that the third defendant
is not a necessary party to the Suit. He being a statutory authority passed
order as per law. She would further submit that the third defendant is
ready to abide any order to be passed by the Court.
DISCUSSION:
13. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
14. Ex-A.4 – G.P.A. Deed was registered before the
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Jurisdictional Sub-Registrar, namely, Sub-Registrar, Bhavani as Document
No.81 of 2002 in Book No.4. In those days, the G.P.A. Deed registered in
Book No.4 would not reflect in the encumbrance certificate, which gave
rise to fraudulent transfers. Hence, Section 64 A of the Reg. Act was
inserted by Tamil Nadu Act No.29 of 2012 with effect from December 1,
2012. Section 64 A reads thus:
“64-A. Procedure where instrument of Power of
Attorney presented in office of Sub-Registrar relates to
immovable property not situate in sub-district:- Every Sub-
Registrar on registering an instrument of Power of Attorney
including instrument of revocation or cancellation of such
Power of Attorney relating to immovable property not situate
in his own sub-district, shall make a copy and send the same
together with a copy of the map or plan (if any) mentioned in
section 21, to every other Sub-Registrar in whose sub-district
the whole or any part of such property is situate and such Sub-
Registrar shall file the same in his Book No. 1:
Provided that where such instrument relates to
immovable property in several districts, shall forward the same
to the Sub – Registrars concerned, under intimation to the
Registrar of every district in which any part of such property is
situate.”
15. Before December 1, 2012, there was no such provision,
and if cancellation of G.P.A. Deed is presented for registration before a
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S.R.O. other than the S.R.O. where the G.P.A. was registered, the Sub-
Registrar may register the same and thereafter send a copy to the
Jurisdictional S.R.O. for making necessary note / endorsement about the
cancellation in the relevant files as per his duties prescribed in Sections
64, 65 and 66 under Part 11 of the Reg. Act read with Rule No.116 of the
Registration Rules approved by the State Government under Section 69 of
Reg. Act. Further, Order 757 to 779 under Chapter XVIII of the
Departmental Orders contained in the Registration Manual Part 11 of the
Registration Department of Tamilnadu, clearly sets out the procedure to
be adopted by the Sub-Registrar in cases of registration of a Cancellation
Deed in a different S.R.O.
15.1. It is fruitful to extract to said Sections 64, 65 and 66
hereunder:
“(C) Special duties of Sub-Registrar
64. Procedure where document relates to land in
several sub-districts.—Every Sub-Registrar on registering a
non-testamentary document relating to immovable property not
wholly situate in his own sub-district shall make a
memorandum thereof and of the endorsement and certificate (if
any) thereon, and send the same to every other Sub-Registrar
subordinate to the same Registrar as himself in whose sub-
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district any part of such property is situate, and such Sub-
Registrar shall file the memorandum in his Book No. 1.
65. Procedure where document relates to land in
several districts.—(1) Every Sub-Registrar on registering a
non-testamentary document relating to immovable property
situate in more districts than one shall also forward a copy
thereof and of the endorsement and certificate (if any) thereon,
together with a copy of the map or plan (if any) mentioned in
section 21, to the Registrar of every district in which any part
of such property is situate other than the district in which his
own sub-district is situate.
(2) The Registrar on receiving the same shall file in his
Book No. 1 the copy of the document and the copy of the map
or plan (if any), and shall forward a memorandum of the
document to each of the Sub- Registrars subordinate to him
within whose sub-district any part of such property is situate;
and every Sub-Registrar receiving such memorandum shall file
in his Book No. 1.
(D) Special duties of Registrar
66. Procedure after registration of documents relating
to land.—(1) On registering any non- testamentary document
relating to immovable properly, the Registrar shall forward a
memorandum of such document to each Sub-Registrar
subordinate to himself in whose sub-district any part of the
property is situate.
(2) The Registrar shall also forward a copy of such
document, together with a copy of the map or plan (if any)
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mentioned in section 21, to every other Registrar in whose
district any part of such property is situate.
(3) Such Registrar on receiving any such copy shall file it
in his Book No. 1, and shall also send a memorandum of the
copy to each of the Sub-Registrars subordinate to him within
whose sub-district any part of the property is situate.
(4) Every Sub-Registrar receiving any memorandum
under this section shall file it in his Book No. 1.”
15.2. Said Rule No.116 reads as hereunder:
“116. (a) On the registration of document, which revokes,
or cancels or rectifies an error in or modifies the terms of, a
document previously registered in the same class or register
book or of a return of lands acquired under the Land
Acquisition Act or of a document received and filed under
section 89 of the Act, Vide Rule 11 supra or on the receipt of a
communication from a revenue officer or from a Court which
intimates a similar revocation, cancellation, rectification or
modification, a note shall be entered at foot of the entry of the
latter document or communication as under.-
“This document/ communication revokes (cancels,
rectifies or modifies) the document No. ………. of 19 …………..
copied/ filed/ the return filed at pages volume …………. of
book/ File Book/ File Book 1”.
and at foot of the previous entry or of the document
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below:-
“This document/ return has been revoked (cancelled,
rectified or modified) by document No. ……….. of 19 ………….
Copied/ document filed/ the return filed at pages volume ……
……. Of book/ File Book/ File Book 1”.
(b) When the revocation, cancellation, rectification or
modification is of a document, relating to immovable property,
a corresponding note shall also be entered in Index No.II and
when it relates to the rectification of any particulars entered in
Index I, II, III or IV, a note of rectification shall also be entered
in the respective index against the particular item rectified.”15.3. Relevant portion of said Order 757 to 779 reads thus:
“CHAPTER XVIII
COPIES AND MEMORANDA.
757. Copies and memoranda under section 64-67 of the
Act, shall be forwarded with the least possible delay.
758. In the case of joint offices, when a document
registered in one of the joint offices affects also property
situated in a village assigned to another, a statement
containing the particulars required for the indexing of the
document in the indexes of the latter office shall be forwarded
to such office in lieu of the memorandum prescribed in section
64 of the Act. The statement shall be in the memorandum form
(Form Registration 11-35) and shall be sealed and dated. Thehttps://www.mhc.tn.gov.in/judis Page No.19 of 29
S.A.No.155 of 2017despatch of the statement shall be shown in account A as in the
case of memoranda under section 64. After the indexing in the
receiving office has been completed this statement shall be
filed in the file of appeal orders and judgments (Order 813).
759. The copies required to be forwarded under sections
65 (1), 66 (2) and 67 of the Registration Act shall be presented
with the document by the party presenting the document. The
copies shall be prepared in the manner prescribed in rules 4
and 6 of the Indian Registration (Filing of True copies) Rules,
1967. The total number of memoranda required shall be made
in the office of original registration.
760. A Sub-Registrar registering a non-testamentary
document relating to property lying partly in his sub-district
and partly in the sub-district in charge of the District-
Registrar of his own district shall transmit to the District-
Registrar a memorandum of the document under section 64
instead of a copy under section 65.
761. When copies of documents are forwarded under
section 65 from one district to another and are written in a
language other than English or Tamil or the language of the
district to which they are forwarded and relate to property m
the sub district in the charge of the District Registrar, they
shall be accompanied by an abstract in Tamil containing all
the information required for the preparation of the indexes the
abstract shall be used in File Book I with the copy.
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762. The date of despatch of every copy Or memorandum
shall be shown against the entry relating to it in Account A.
763.(a) When a deed of rectification or a deed of
cancellation is registered in any of the offices within the
Jurisdiction of which the property affected by the original
document is situate a copy or a memorandum, as the case may
be; as required by sections 64 to 67 of the Act shall be issued
to each of the other offices, the prescribed fee therefor being
levied from the Party. The copy or memorandum shall, in the
receiving office, be filed in File Book 1 and indexed. The
instructions in Registration Rule 116 (b) regarding the addition
of notes of cancellation or rectification apply mutatis mutandis
to copies and memoranda received under this order and to
Index II relating thereto.
Where, after the transfer of a village from one sub-
district to another, a deed is registered in the office to the
jurisdiction of which the village has been transferred,
rectifying or cancelling a document affecting property in that
village and registered in the office to which the village was
formerly attached, a memorandum of the rectification or
cancellation deed shall be forwarded to the office where the
original document was registered but no memorandum fee
shall be levied in such a case.
(b) When a document cancels or rectifies an error in or
makes any change in the terms of a document previously
registered in Book 3 or Book 4 in another office, a
memorandum shall be sent to that office without levying a
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memorandum fee. This memorandum shall be filed in the file of
appeal orders and judgments in the office to which it is
transmitted. This order applies to a document registered in a
District-Registrar’s office also. The memorandum need not be
indexed in the receiving office.
(c) When a document is registered under section 30 in
any of the District- Registrar’s office and a deed of
rectification or a deed of cancellation is registered in respect
of the document in any of the offices within the jurisdiction of
which the property affected by the original document is situate,
a memorandum containing all the information required for the
preparation of indexes shall be sent to the office which
registered the original document, without levying any fee in
view to the requisite notes under Registration Rule 116 using
entered in the records of that office. The memorandum shall be
filed in File Book 1.
(d) When a document affecting immovable properties in
two or more districts is registered in one district and a deed
cancelling or rectifying it is registered in a sub office of
another district, the officer who Registers the latter shall, if the
original document does not relate to any property in the sub-
district under the immediate charge of the District Registrar of
his district, send to him a memorandum containing all the
information required for the preparation of indexes without
levying any fee in view to the requisite notes under
Registration Rule 116 being entered in the records of that
office. The memorandum shall be filed in File Book 1.
764. When, without levy of a memorandum fee under
clauses (b), (c), (d), or second sub-paragraph of clause (a) of
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Order 763 a memorandum, in the form prescribed for
memoranda under section 64, of a deed cancelling or
rectifying an error in a document registered in another office is
forwarded to such office, the despatch of the memorandum
shall be shown in Account A as in the case of other
memoranda, with a footnote to the effect that no fee has been
levied for the memorandum.
765. (a) An extract from the Circular .Proceedings P.Dis.
No. 887 of 1941, dated 17th November 1941, of the High
Court of Judicature at Madras is furnished below :-
“Section 80 (2) of the Indian Registration Act,
places on the court the duty of sending a copy of the
sale certificate to the Registering officer within
whose jurisdiction any part of the property
comprised in the sale certificates is situated. Courts
must, therefore, send a copy of the sale certificates
to every registering officer, within whose
jurisdiction any part of the property is situated.
When copies of sale certificate are sent to more than
one registering officer, a note should be added to
each copy setting out the other registering officers
to whom copies are being sent.”
(b) Whenever a copy of a sale certificate is received from
a court affecting property in other sub-districts besides their
own, registering officers shall bring to the notice of the court
any cases of omission to communicate copies to the other Sub-
Registrars concerned that may be noticed in the copy with
reference to the High Court circular extracted in clause (a).
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(c) the instructions in clause (b) apply also to sale
certificate received from Deputy Registrars and Joint
Registrars of Co-operative Societies.
766. On receipt of a memorandum under Order 763 (b) a
notice [sic : note] shall be entered at foot of the entry of the
original document in the register, referring to the fact of
rectification or cancellation and to the page and volume of the
file of appeal orders in which the memorandum is filed”
(Emphasis supplied by this Court)
15.4. Thus, it is clear that it is a statutory duty casted on the
Sub-Registrar by the Reg. Act. That means cancellation of G.P.A. can be
registered at any S.R.O. within Tamil Nadu. Further, whenever, the power
agent presents any document for registration, the Sub-Registrar shall
enquire and verify the validity of G.P.A. Deed.
16. In this case, had the plaintiffs registered the Cancellation
Deed in the Jurisdiction S.R.O., as per the then law, the Jurisdictional Sub-
Registrar after registering the same would have made an endorsement in
Book No.4. In such a scenario, he would have straight away rejected the
Sale Deed when presented by the power agent, citing cancellation of
G.P.A. But the plaintiffs registered the Cancellation Deed before
Kavundapadi S.R.O. on July 26, 2002. This Court is unable to figure out
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S.A.No.155 of 2017
the reason for the same. However, law permits registration of Cancellation
Deed in a different S.R.O. as stated supra and therefore, it cannot be
termed as fraud as contended by the learned Counsel for the appellant /
second defendant.
17. Be that as it may, upon registering the same, Kavundapadi
Sub-Registrar ought to have communicated the same along with a copy of
it to the Jurisdictional S.R.O. There is no evidence available on record to
show whether he had done so or not. Further, the plaintiffs had sent an
objection letter to the Jurisdictional Sub-Registrar on July 29, 2002
informing him of the cancellation of G.P.A. on July 26, 2002. Upon
receiving the objection letter, it is the duty of the Jurisdictional Sub-
Registrar to verify about the cancellation. There is no evidence to suggest
that he did so. The District Registrar as well failed to verify about the
cancellation of G.P.A. before passing the Appeal Order.
18. It is true that as per Sections 204 of ‘Indian Contract Act,
1872’ [‘I.C.A.’ for short], power coupled with interest cannot be revoked.
As per Section 203 of I.C.A., the principal can revoke the agent’s
authority at any time before the authority has been exercised. Section 206
of I.C.A. speaks about notice of revocation, and Section 207 thereof says
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that such revocation can be express or implied, and Section 208 thereof
stipulates that termination of agency shall not be said to be effected unless
it comes to the notice of the power agent. In this case, assuming a moment
that the defendants 1 and 2 did not have any knowledge about the
cancellation at the time of execution of Sale Deed, even then, they would
have definitely come to know about the cancellation at the time of
presentation of the Sale Deed for registration. Section 54 of the Transfer of
Property Act, 1882, reads that sale of an immovable property worth
Rs.100/- or more is mandatorily registrable. That means, Sale requires
registration and it is complete only when registered; Sale is incomplete in
the absence of registration. In this case, the defendants got notice of the
cancellation of Ex-A.4 – G.P.A. Deed at the time of presentation of Sale
Deed i.e., before the Sale was complete. Hence, they were communicated
of the cancellation and hence, the first defendant had no power to execute
the Sale Deed anymore. Since the Sale Deed was not registered, the sale
was incomplete and therefore, the remedy available to the second
defendant / purchaser is to file a Suit for specific performance of contract
based on the Sale Agreement and unregistered Sale Deed. The
Jurisdictional S.R.O. was correct in refusing to register Ex-B.5 – Sale
Deed. The Appellate authority’s decision directing the Jurisdictional
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S.A.No.155 of 2017
S.R.O. to register the Sale Deed is not in consonance with law. Both the
Courts concurrently held that the Sale Deed is invalid. There is no need to
interfere with the same. In the facts and circumstances of this case, liberty
is granted to second defendant to file a Suit for specific performance based
on Sale Agreement and Ex-B.5 – Sale Deed [See S.Kaladevi -vs-
V.R.Somasundaram, reported in AIR 2010 SC 1654]. In such a scenario,
both parties are at liberty to raise all their contentions and pleas available
in law in the said Suit. The parties are at liberty to invoke Section 14 of
the Limitation Act, 1963 in the said Suit and seek to exclude the time
spent in the Suit proceedings herein. There is no quarrel with the case laws
relied on either side. Substantial Questions of Law are answered
accordingly.
CONCLUSION:
19. Resultantly, the Second Appeal is dismissed. The second
defendant is at liberty to file a Suit for specific performance as stated
supra. Keeping in mind the facts and circumstances of the case, there shall
be no order as to costs. Connected Civil Miscellaneous petition shall be
closed.
https://www.mhc.tn.gov.in/judis Page No.27 of 29 S.A.No.155 of 2017 20 / 01 / 2025 Index : Yes Speaking Order : Yes Neutral Citation : Yes TK To 1.The Subordinate Judge Bhavani. 2.The I Additional District Munsif Bhavani. https://www.mhc.tn.gov.in/judis Page No.28 of 29 S.A.No.155 of 2017 R. SAKTHIVEL, J. TK PRE-DELIVERY JUDGMENT MADE IN S.A.NO.155 OF 2017 20 / 01 / 2025 https://www.mhc.tn.gov.in/judis Page No.29 of 29