REG 046 Cancellation of Registered Documents — Law of Registration Notes for Judiciary

Cancellation of Registered Documents: Section 31 of the Specific Relief Act, the Powers of the Registering Officers, and Administrative Against Judicial Cancellation

Once a document has been registered, the register records it and the record stays. The Registration Act contains no provision for cancelling a registration, and that silence is deliberate. A power to cancel would be a power to decide that the transaction was bad, and the whole scheme of the Act withholds from the registering officer any enquiry into the merits of the transaction. The only route is a suit in a civil court under Section 31 of the Specific Relief Act, 1963, and the register is then corrected by the court, through the officer, under Section 31(2).

Who can undo a registered document, and how the relief differs for a void and a voidable instrument

1. The Provision That Governs

Section 31, Specific Relief Act, 1963

31(1). When cancellation may be ordered. 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.

31(2). If the instrument has been registered under the Indian Registration Act, 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.

1. There must be a written instrument. The section does not apply to an oral transaction.

2. It must be void or voidable as against the plaintiff. The words are "against whom a written instrument is void or voidable", and they identify the person entitled to sue.

3. There must be a reasonable apprehension of serious injury if the instrument is left outstanding. A merely theoretical objection to a document that can do the plaintiff no harm will not support the suit.

4. The relief is discretionary. The court "may, in its discretion" so adjudge, and delay, acquiescence, the conduct of the plaintiff and the position of third parties all bear on the exercise of that discretion.

5. Section 33 requires restoration of benefits. On adjudging the cancellation of an instrument, the court may require the party to whom relief is granted to restore, so far as may be, any benefit received under the instrument and to make any compensation which justice may require.

2. Partial Cancellation

Section 32, Specific Relief Act, 1963

32. What instruments may be partially cancelled. Where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue.

This is a useful and under used provision. Where a deed disposes of several properties and the challenge touches only one, or where it contains distinct covenants of which only some are impeachable, the court need not strike down the whole instrument. Partial cancellation is not available where the parts are inseparable, or where the impeachable part goes to the root of the transaction.

3. The Sub Registrar Has No Power to Cancel

This is settled. The Registration Act enumerates the functions of a registering officer and cancellation is not among them. Once he has completed registration and endorsed the certificate under Section 60, his function in respect of that document is exhausted and he becomes functus officio. A power of that kind cannot be assumed in the absence of an express provision, and it could not be exercised consistently with the rest of the Act, because it would require him to adjudicate on title, which Sections 34 and 35 deny him at the stage of registration itself.

📖 Satya Pal Anand v. State of M.P., (2016) 10 SCC 767

Facts. A long dispute arose over land allotted by a housing society, in which a registered deed and a subsequent deed of cancellation were at the centre. The appellant approached the registering authority and then the High Court, seeking to have entries in the register corrected and a registered document undone administratively.

Held. The Supreme Court held that the Registration Act, 1908 contains no provision empowering a registering officer to cancel the registration of a document once it has been registered. In the absence of an express provision, no such power can be assumed. The officer is functus officio after registration, and his statutory duties are confined to those the Act enumerates. The validity of a registered instrument is a matter for the civil court.

Ratio. A person aggrieved by a registered document must sue to have it declared void or set aside. He cannot ask the Sub Registrar to undo it, and no writ will lie to compel the Sub Registrar to do so.

4. The Registrar Has No Such Power Either

It is sometimes supposed that what the Sub Registrar cannot do, the Registrar above him can. He cannot. The Registrar's powers are of superintendence and of appeal, and they are given for defined purposes which do not include undoing a completed registration.

Provision	What it gives the Registrar	Does it permit cancellation?
Section 68	Superintendence over Sub Registrars in his district, and power to issue orders consistent with the Act	No. The orders must be consistent with the Act, which confers no power to cancel
Section 69	Power in the Inspector General to superintend registration offices and to make rules	No. Rule making cannot confer a substantive power the Act withholds
Section 70	Power in the Inspector General to remit fines and penalties	No
Sections 72 and 73	Appeal or application to the Registrar where a Sub Registrar has refused to register	No. These are concerned with refusal, not with undoing registration
Section 75	Power to order a document to be registered where the refusal was wrong	No. The power runs only one way, towards registration

⚠ A State rule cannot confer what the Act denies

Some States framed rules permitting a registering officer to register a deed of cancellation, or to cancel an earlier registration in stated circumstances. A rule made under Section 69 must be consistent with the Act, and a rule that permits the undoing of a registration, or the registration of a unilateral cancellation of a completed transfer, is inconsistent with the scheme the Supreme Court has described. That was the very point on which the Andhra Pradesh rule failed in Thota Ganga Laxmi, discussed below. Where a State rule appears to permit such a course, its validity should be tested rather than assumed.

5. Unilateral Cancellation by the Executant

The second common attempt is for the transferor himself, having conveyed and been paid, to execute a fresh instrument describing itself as a deed of cancellation, and to have that registered. The attempt fails for a reason that is logically prior to any question of the officer's powers: the transferor has nothing left to deal with. On registration, the title passed from him with effect from the date of execution, by force of Section 47. A person who has divested himself of the property cannot, by his own act alone, revest it in himself.

📖 Thota Ganga Laxmi v. Government of Andhra Pradesh, (2010) 15 SCC 207

Facts. Land was transferred by a registered sale deed. The vendor afterwards executed a unilateral deed of cancellation and had it registered, without the purchaser's concurrence and without any order of a court. Rule 26(k)(i) of the Andhra Pradesh Rules framed under the Registration Act was relied on as permitting the registration of such a cancellation deed.

Held. The Supreme Court held that the cancellation deed and its registration were wholly void, non est and meaningless. A registered sale deed cannot be cancelled unilaterally. If the vendor wishes to undo the sale, he must either file a civil suit or persuade the purchaser to reconvey. A cancellation deed can be registered only where a competent court has cancelled the sale deed, and then only after notice to the parties concerned.

Ratio. A unilateral instrument of cancellation executed by a transferor who has already conveyed is a nullity, and its registration confers nothing on him. A State rule cannot be read so as to permit what the substantive law forbids.

Mutual cancellation is different. Where both parties agree that the transfer should be undone, what they are really doing is a reconveyance, and it is registrable as such. It transfers the title back; it does not erase the original transfer, which remains on the register and in the chain of title.
A cancellation cannot defeat a third party who has acquired rights on the faith of the register before the purported cancellation.
The unpaid transferor's remedy is not cancellation. It is a suit for the price, or enforcement of the unpaid vendor's charge under Section 55(4)(b) of the Transfer of Property Act, or, where the contract so provides, rescission on the contractual ground, established in a suit.

6. Administrative Against Judicial Cancellation

	Administrative cancellation	Judicial cancellation
By whom	A registering officer or a revenue authority	A civil court of competent jurisdiction
Statutory basis	None under the Registration Act	Section 31 of the Specific Relief Act, 1963
Enquiry	None into title or validity; the officer has no such jurisdiction	A full trial on pleadings and evidence
Notice and hearing	None provided for	All parties interested must be impleaded and heard
Appeal	Not provided for	The ordinary appellate hierarchy, and second appeal on a substantial question of law
Legal effect	None; the act is without jurisdiction	The instrument is adjudged void or voidable and ordered to be delivered up
Effect on the register	None	The court sends a copy of the decree and the officer notes the cancellation, Section 31(2)

7. Void and Voidable Instruments

Section 31 covers both, but the practical consequences differ so much that the distinction must be drawn before the plaint is settled.

	Void	Voidable
Typical case	Forgery; impersonation; an executant who never existed; unsoundness of mind; a minor's deed; a transfer forbidden by law	Consent caused by fraud, coercion, undue influence or misrepresentation
Effect	A nullity from the beginning; nothing passed at any stage	Effective until avoided; the title passes and can be defeated only by avoidance
Relief needed	A declaration that the instrument is void and does not bind the plaintiff; cancellation may be added for abundant caution	The instrument must be set aside; a mere declaration will not do
Who may sue	The true owner, and any person prejudicially affected	Ordinarily only the party whose consent was vitiated, and those claiming under him
Effect on a later purchaser	He acquires nothing, even in good faith, because his vendor had nothing	A bona fide purchaser for value without notice, buying before avoidance, may be protected
Limitation	Article 58: three years from when the right to sue first accrues, for a declaration	Article 59: three years from when the facts entitling the plaintiff to have the instrument cancelled first became known to him
Court fee	Often a declaratory relief, valued accordingly under the State court fees legislation	Ordinarily ad valorem on the value of the property or the consideration, under the State legislation

⚠ A stranger to the deed does not always need cancellation

Where a person who was not a party to the instrument attacks it, the more accurate relief is a declaration that the instrument does not bind him, with consequential possession where he is out of possession. Section 31 speaks of a person against whom the instrument is void or voidable, which is wide enough to include him, but a plaintiff who never executed the deed and claims a paramount title does not need to have it set aside in order to succeed; he needs to establish his own title. Framing the suit correctly matters, because it affects limitation, court fee, and whether the suit is barred for want of the consequential relief.

8. Cancellation of Particular Instruments

1. A sale deed. The commonest case. Grounds are forgery, impersonation, want of title in the vendor, want of capacity, and fraud or coercion in obtaining consent. Non payment of the price is not a ground for cancellation, because the transfer is complete and the seller has a charge for the unpaid price under Section 55(4)(b) of the Transfer of Property Act.

2. A gift deed. A completed gift is revocable only within Section 126 of the Transfer of Property Act: on the happening of a specified event which does not depend on the will of the donor, and as agreed between the parties, or on any ground on which a contract could be rescinded. A gift cannot be revoked at the donor's pleasure, and a clause reserving such a power is void as to that extent. Where the gift is impeached for fraud or undue influence, or for want of acceptance under Section 122, or for want of attestation under Section 123, the suit lies under Section 31.

3. A settlement deed. A settlement operates in praesenti and is irrevocable unless a power of revocation was reserved in the deed itself. It may be cancelled on the ordinary grounds of fraud, coercion, undue influence, want of capacity, or on proof that it was never intended to operate.

4. A will. Cancellation under Section 31 does not arise in the ordinary way, because a will is ambulatory and is revocable by the testator at any time under Section 62 of the Indian Succession Act, 1925. A will is attacked after death, by opposing probate or by a suit, on the ground that it is not the last will of a free and capable testator.

5. A power of attorney. A power is revoked by the principal at will under Sections 201 and 203 of the Contract Act, subject to Section 202, and no suit for cancellation is ordinarily needed. Where the power is said to be irrevocable and coupled with an interest, a declaration may be necessary.

6. A lease. A lease is determined under Section 111 of the Transfer of Property Act, by efflux of time, by forfeiture, by notice and so on, rather than by cancellation, though a lease obtained by fraud may be set aside.

9. Fraudulent Registration and Registration by Impersonation

Impersonation is an offence. Section 82 makes it punishable to intentionally make a false statement before a registering officer, to falsely personate another and in such assumed character present a document or admit its execution, and to abet any of those acts. The punishment extends to imprisonment for seven years, or fine, or both.
A dishonest act by the officer is an offence. Section 81 punishes a registering officer who endorses, copies, translates or registers a document with the intention of causing injury, knowing or believing the endorsement, copy, translation or registration to be incorrect.
But the offence does not undo the registration. A conviction punishes the wrongdoer; the instrument must still be got out of the way by a civil suit.
Nor does a criminal complaint substitute for the suit. The plaintiff whose signature was forged must still establish the forgery in the civil court, where the standard of proof and the issues are different.
The document is void, not voidable, so the true owner's title is unaffected, and the limitation for a declaration runs under Article 58.

10. What the Court Does, and What the Officer Then Does

1. The suit is filed in the court within whose local limits the immovable property is situate, valued and stamped according to the relief.

2. All persons interested are impleaded, including every person claiming under the impeached instrument, because a decree does not bind a person who was not before the court.

3. The court tries the issues and, if satisfied, adjudges the instrument void or voidable and orders it to be delivered up and cancelled.

4. Section 33 may be applied, requiring the plaintiff to restore benefits received under the instrument and to make such compensation as justice requires.

5. A copy of the decree goes to the registering officer under Section 31(2).

6. The officer notes the fact of cancellation on the copy of the instrument contained in his books. He does not erase the entry, and he does not adjudicate. The original registration remains part of the record, with the note of cancellation alongside it, so that a search discloses both.

7. The chain of title is thereafter read with the decree, and a subsequent purchaser searching the register finds the instrument and the note.

11. The Position Stated Shortly

1. The Registration Act contains no provision for cancelling a registration.

2. A Sub Registrar becomes functus officio once registration is complete, and has no power to cancel, Satya Pal Anand v. State of M.P.

3. The Registrar's powers under Sections 68 to 70 and 72 to 75 are of superintendence and of appeal against refusal, and confer no power to cancel.

4. A State rule cannot confer a power that the Act withholds.

5. A transferor cannot cancel a registered transfer unilaterally; such a cancellation deed is wholly void, Thota Ganga Laxmi v. Government of Andhra Pradesh.

6. A mutual cancellation is in truth a reconveyance, and is registrable as one.

7. The only route is a suit under Section 31 of the Specific Relief Act, 1963, which requires a written instrument void or voidable against the plaintiff and a reasonable apprehension of serious injury, and the relief is discretionary.

8. Section 32 permits partial cancellation where the instrument evidences different rights or obligations.

9. A void instrument needs only a declaration; a voidable one must be set aside, and the limitation and the court fee differ accordingly.

10. Non payment of the price is not a ground for cancelling a sale; the seller has a charge under Section 55(4)(b) of the Transfer of Property Act.

11. A completed gift is revocable only within Section 126 of the Transfer of Property Act.

12. Impersonation before a registering officer is an offence under Section 82, but the offence does not undo the registration.

13. On a decree, the court sends a copy to the registering officer, who notes the fact of cancellation on the copy in his books, Section 31(2).