Transfer of property refers to the process by which ownership and possession of property flows from one person to another. The term property herein means both movable and immovable property. Section 5 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act of 1882”) defines “transfer of property” as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.
The following enactment is the primary legislation that deals with the subject of transfer of properties. The Act throughout its length and breadth defines the various principles and modes by which a property can be transferred. However, the Act fails to explain an important question – Can a property once transferred, be subsequently cancelled?
Cancellation of transfer is a question of law that is rarely the subject-matter in any litigation. Neither the Act of 1882 defines as to whether a transfer can subsequently be cancelled nor does it lay down any express provision thereby granting inherent power in the hands of the Court to deal with the same. Thus, it becomes pertinent to scrutinize the following issue from the angles of practice.
The Registration Act, 1908 under Section 17 lays down categories of instruments that are mandatorily required to be registered. Section 49 (c) of the Act further lays down that documents that are mandatorily required to be registered but are not so registered shall not be admissible as evidence. Thus, documents pertaining to transfer of property are mandatorily required to be registered to have legal effect.
The Indian Courts have time-and-again held that a transfer of property once executed and validly registered cannot subsequently thereafter be cancelled. Thus, the litigants have no remedy except filing a civil suit for cancellation of transfer on the ground of fraud or forgery. These cases require the existence of fraud or forgery or need to be moulded as to form a ground of fraud or forgery which tends to be an arduous process; mostly not prudent and possible.
In the absence of any express provision dealing with the issue of cancellation of registered documents, litigants began invoking Section 69 of the Registration Act to cancel such registered documents. Thus, in 2016, a full-bench of the hon’ble Supreme Court in Satya Pal Anand v. State of Madhya Pradesh [(2016) 10 SCC 767] was posed with the questions pertaining to registration of documents unilaterally and there cancellation thereof. The full-bench, inter alia, had to decide as to whether the Registrars and the Inspector-General of Registration had the power to cancel any registered documents under Section 69 of the Registration Act?
The hon’ble Supreme Court held that registration of deeds and documents is an entry under the Concurrent list to the Seventh Schedule of the Constitution (see, entry 6). Thus, the Centre as well as the States have powers to legislate on the following subject-matter. Therefore, in the absence of any express provision to the contrary introduced by way of a State amendment to the Registration Act or enacted under the rules of registration, a registered document cannot be cancelled by the Registrar or the Inspector-General of Registration. Nor did Section 69 of the Registration Act grant any power to the Inspector-General of Registration to cancel any registered document. Further, the Court also held that the office of Registrar and the Inspector-General of Registration were purely administrative in nature and not a quasi-judicial authority. Thus, in the absence of any contrary provision, any cancellation of registered document was purely a matter of jurisdiction of the Civil Court.
It can be concluded that in the absence of any express provision, the Registrar or the Inspector-General of Registration do not have the authority to cancel any registered document under Section 69 of the Registration Act. Then, is there any other remedy?
Another way by which a transfer can be cancelled can be found under Section 31 of the Specific Relief Act, 1963 which states that:
“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.”
Thus, a decree of specific performance for cancellation of transfer deed may be issued if such deed might cause serious injury to the plaintiff. However, such a suit for specific performance must be filed within three years of the date when the facts entitling the plaintiff to have the instrument be cancelled first becomes known to him (see, Article 59 of the Indian Limitation Act, 1963).
Another way by which a transfer may be cancelled lies under Section 151 of the Code of Civil Procedure, 1908 which grants inherent powers to the Civil Courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Reference must also be made to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which under Section 23(1) of the Act grants express powers to cancel any transfer which had been specifically made under the condition that the transferee shall provide basic amenities and basic physical needs to the transferor. Thus, the following Act is one such legislation which expressly states that a transfer can be subsequently cancelled if the twin conditions under which the transfer was so made, is not fulfilled.
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