Whether Magistrate can pass residence order in respect of property situated outside state under Domestic violence Act?

From bare perusal of these relevant sections, it is evident that magistrate has been vested with power to pass appropriate order of residence in shared household as well as order of monetary relief. This depends upon facts of each case. The argument of counsel for petitioner that residence order cannot be passed with regard to property which is situated outside State, is not tenable. As in D.V. Act, there is nothing which debars the magistrate to pass such order with regard to property situated outside State. The aim and objects of D.V. Act can be gathered from the language used in preamble which says that "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto". If it is held that magistrate cannot pass order with regard to property situated outside State, then very purpose of Act would be defeated.

Jammu & Kashmir High Court

Ajay Kaul & Ors. vs State And Ors. on 1 February, 2019

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When a person is not entitled to recover possession of property as per S 6 of specific relief Act?

 Section 6 of the Specific Relief Act, 1963 provides a special and speedy remedy for particular kind of grievance to replace in possession a person who had been evicted, from the immovable property of which he had been in possession otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke the jurisdiction of Section 6 of the aforesaid Act. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature.

11. The plaintiff in the present suit has filed some documents to prove his tenancy over the suit property the said documents do not establish the possession of the plaintiff over the suit property. The said documents are the attested photo copy of the tenancy agreement dated January 25, 2006 being Exhibit 4 which does not speak that pursuant to the said agreement the plaintiff was put into possession of the suit property and the rent receipts also does not establish the possession of the plaintiff over the suit property, particularly when the landlord himself being the DW. 2 disputes the veracity of the said documents. The police complaints are self-serving documents in the absence of any other evidence aiding such document, only on the basis of the said complaints with the police the possession of the plaintiff over the suit property cannot be inferred. The plaintiff at best can rely upon the said documents in a suit or proceeding to establish his right of tenancy over the suit property. The present suit being under Section 6 of the Specific Relief Act, 1963 investigation into such question is totally unnecessary and irrelevant.

12. It appears from the cross-examination of the plaintiff dated December 2, 2014 that he admits that earlier Raghunath Kori was the tenant in the suit property. He also admits that he knew Raghunath Kori and his wife Durga Devi Kori and Raghunath Kori is dead. He further stated that he has no blood relation with Raghunath Kori. He also stated that there is eviction suit filed against Raghunath Kori by the landlord. He in his said cross-examination admits that Raghunath Kori has two sons. Therefore, it is an admitted position that the tenant of the suit property was said Raghunath Kori and on his death the said tenancy devolved upon the heirs of the said tenant and the landlords have filed eviction suit against the said tenant.

13. The cross-examination of the plaintiff clearly demonstrates that that the possession of the suit property could not be with the plaintiff as on the alleged date of his dispossession from there. The plaintiff when has failed to prove his possession over the suit property is not entitled to recover such possession by taking recourse to the provisions of Section 6 of the Specific Relief Act, 1963. 

IN THE HIGH COURT OF CALCUTTA

C.O. No. 3302 of 2017

Decided On: 19.09.2018

Ramesh Chnd Koiri  Vs.  Chandan Koiri and Ors.

Hon'ble Judges/Coram:

Biswajit Basu, J.

Citation: AIR 2018 Cal 314

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Whether seller is bound to deliver possession of property to purchaser in absence of recital in that regard in agreement of sale?

 On the other hand, the reliance placed on behalf of the respondent on the judgment of the Madras High Court in the case of Sundara Ramanujam Naidu v. Sivalingam Pillai and another (supra) is appropriate. It has been held by the Madras High Court in the said judgment as follows :-

"I am quite clear that the suit falls within section 7, clause (1)(a) of the Court Fees Act. The words used are "specific performance of a contract of sale." Specific performance does not exist merely of the execution of a sale-deed. A suit to obtain a sale-deed is not what is referred to in the said section; but it is a suit for specific performance of a contract of sale. The execution of a conveyance is only a part of the specific performance. If the vendor agrees to execute a conveyance as well as to deliver possession, it cannot be said that specific performance of the contract does not comprise both the execution of the sale-deed and delivery of possession. In every contract of sale, unless the contrary appears, the vendor must be deemed to impliedly agree to give possession of the property to the purchaser. In a suit for specific performance, the purchaser seeks to enforce the terms of his contract. The seller as much agrees to put the purchaser in possession, as he agrees to execute a conveyance in his favour."

16. It has been observed in the judgment of the Special Bench of the Calcutta High Court in the case of Sm. Dhiraj Bala Karia v. Jethia Estate Pvt. Ltd. (supra), as follows :-

"Mr. Bhabra himself did not seriously dispute that prior to the repeal of the Specific Relief Act, 1877, although there was some divergence of judicial views, there was preponderance of judicial authority that obligation to deliver possession was an integral part of a contract to sell or lease an immovable property. Such obligation of the vendor to put the vendee in possession flowed from the agreement to sell or to grant lease. Even in the absence of any express provision in the agreement, the vendor had such obligation under Section 55(1) (f) and under Section 108(b) of the Transfer of Property Act, 1882."

17. I agree with the said exposition of law by the Madras High Court and Calcutta High Court. It is evident that the above quoted provisions of Transfer of Property Act, 1882, demonstrate that once parties entered into an agreement to sale of the kind which is subject matter of the present appeal, unless the contrary is demonstrated, it must be deemed that the seller has impliedly agreed to deliver the possession of the property to the purchaser, upon execution of sale deed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 363 of 2017

Decided On: 19.04.2018

 Maroti   Vs.  Dada

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 642

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Whether children born out of void marriage can claim share in property of their parents during their life time?

 Thus, it is now made more than clear that, the children of a void marriage, though regarded as legitimate, such children would not be entitled to any share in the properties, which are ancestral coparcenary joint family properties of their parents. Their right to claim the share remains limited only to the extent of the separate property of their father, but in that property, they cannot make any claim during the lifetime of their father. Their right in the separate properties of their father will accrue only on the death of their father and, that too, by way of succession.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 737 of 2013, Civil Application No. 1729 of 2013 and Second Appeal No. 738 of 2013

Decided On: 30.07.2018

 Balkrishna Pandurang Halde Vs. Yeshodabai Balkrishna Halde

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) MHLJ 947

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Whether court should grant permanent injunction if plaintiff fails to prove his title on suit property?

In the present case, although the appellant (plaintiff) has styled the suit as one for permanent and mandatory injunction, he has proceeded by boldly claiming in the plaint that he owns and possesses the suit property. This has been denied by the respondent (defendant). The trial Court has specifically framed issue No. 1 as "Does the plaintiff prove his title, ownership and possession over the suit property?" Thus, the said position of law applies in the present case also. In order to prove title in the suit property, the appellant has placed on record Exhs. 50 to 53 as documentary evidence. Exhs. 50 and 51 are 7/12 extracts i.e. revenue record, while Exh. 52 is a map showing various Gat numbers and Exh. 53 is the order whereby permission for non-agricultural use for Gat No. 175 was granted. In these documents, there are no details of the location of the suit property i.e. Gat No. 175 and there are no boundaries specified. Even the map at Exh. 52 is of no assistance because it simply shows Gat Numbers from 170 to 178 on one side of the road. In any case, being revenue records, they cannot be treated as proof of title. In the plaint, the appellant has made a bald statement that he is owner and in possession of the suit property of Gat No. 175. Boundaries of the said suit property are specified while the right and title in the same has not been stated or traced in the plaint. It is only in the oral evidence, in cross-examination that the appellant has stated that the suit property is ancestral property that he has acquired it by way of partition. No details regarding title of his predecessor in Gat No. 175 have been placed on record and there are no details of the alleged partition, whereby the appellant allegedly acquired title in the suit property at Gat No. 175.

13. The trial Court has given finding in favour of the appellant as regards title in the suit property mainly on the basis of documents at Exhs. 50 to 53, which are revenue records. There is no effort made by the trial Court to inquire as to what is the basis and proof placed on record by the appellant to prove his title and ownership in the suit property. In the impugned judgment and order, the appellate Court has examined the oral and documentary evidence in a proper manner. It has found that the appellant has failed to produce any document of title, although a bald assertion has been made in the plaint as regards ownership and title in the suit property. The appellate Court has analysed the description of the suit property and the boundaries thereof given in the plaint and upon comparing the same, with claims made in the earlier suit filed by the appellant pertaining to Gat No. 172, it has found that there is nothing on record to show that the appellant was in ownership and possession of the suit property. Since the appellant has failed to place on record cogent, documentary or oral evidence to prove his title in the suit property, the finding rendered by the appellate Court in that regard cannot be said to be perverse or found fault with.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 206/2001

Decided On: 21.03.2018

 Dulichand  Vs. Shankarlal

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Whether champerty and maintenance is legal in India?

In India, of course, champerty or maintenance is not illegal. In Glegg v Bromley [1912] 3 K. B, 474. Mr. Justice Parker, as he then was, stated the law upon this point, as was his custom, with great clearness and precision. In that case, according to the head note, one Mrs. G. was plaintiff in an action against one H. for false representation. She was also plaintiff in an action for slander against Lady Bromley She was at the time greatly indebted to her husband, and she executed in his favour a deed of assignment whereby, after reciting that he had requested her to give him further security, which she had agreed to do, she assigned to him, "all that the interest sum...or premises to which she is or may become entitled...under or by virtue of any verdict, compromise or agreement which she may obtain or to which she may become party in or consequent upon the said action (i e. Glegg v. Bromley) or otherwise howsoever, under or by reason of the same to hold the same...subject to redemption on payment of all moneys due to him." Both actions proceeded, that against H. resulting in a verdict for the defendant, with cost amounting to £218. That against Lady Bromley resulted in a verdict for the plaintiff Mrs. G. for £200 with costs. H. then took garnishee proceedings against Lady Bromley to attach this sum of £200, and Mrs. G.'s husband also claimed it under his assignment. It was held that the assignment was not an assignment of a mere expectancy or of a cause of action, but was an assignment of property that is of the fruit of an action as and when recovered, and that it was consequently not void under 13 Eliz. c.5. There is no distinction, and can he no distinction on this point between the fruits of an action which the plaintiff gets by compromise and the fruits he would receive by a decree or verdict in his favour At page 490 Mr. Justice Parker is reported to have said:--.

It is to be observed that an equitable assignee of a chose in action, whether it is legal or equitable, could institute proceedings and maintain proceedings for its recovery. The question was whether the subject-matter of the assign-ment was, in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity. With regard to the assignments of future property, they stand, I think, on a totally different footing. Nothing passes, even in equity, until the property comes into present existence. Only when this happens can the assignment attach and an interest pass... Even a solicitor who is conducting an action or suit may take a mortgage on the fruits for the purpose of securing the payment of his proper costs. He may not be able to purchase an interest in such fruits because of the doctrine of champerty.

36. In their Lordships' view the agreement embodied in paragraph 12 of the agreement of August 14, 1907, is an agreement by the plaintiffs to assign to others part of the fruits they may acquire in an action at law and therefore perfectly legal. Besides, if even the money given to the plaintiffs in the compromise was a non-existing thing at the date of the agreement and only came into existence at the date of the compromise decrees, the agreement of August 14, 1907, which is still in existence, not terminated as the High Court erroneously supposes, attaches to the things so coming into existence subsequently.

BEFORE THE PRIVY COUNCIL

Decided On: 05.05.1924

Vatsavaya Venkata Subhadrayamma Vs.  Poosapati Venkatapati

Hon'ble Judges/Coram:

Atkinson, Louis Addin Kershaw, Blanesburgh, John Edge and Ameer Ali, JJ.

 Citation : AIR 1924 PC 162

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Whether wife can claim right of residence in property in the name of her father in law?

Against the above backdrop, the contentions raised by the
petitioner that she has a right to continue to live in a portion of the
above-mentioned property cannot survive. The claim of her husband
through whom she claims the right of residence in his property has
already been repelled by the civil court twice, once in the partition suit
and second time in the suit for partition brought by the first respondent
himself. The claim brought through her son has already been rejected,
the suit for partition having already been dismissed.
12. It is clear from the averments of the petitioner herself, she has
been permitted to use a portion of the property by the second
respondent. This averment may be assumed to be correct. But, then it
is clear from the averment itself that what was allowed was only a
permissive user. The petitioner cannot force herself on the owner of

the property, particularly when she has no vested or legal right to claim residence in his property.
13. The judgments reported as Navneet Arora vs. Surender Kaur & Ors. in FAO (OS 196/2014, decided by a division bench of this Court on 10.09.2014, and Smt. Preeti Satija vs. Smt. Raj Kumari & Anr. in RFA (OS) 24/2012, decided by another division bench of this Court on 15.01.2014, do not assist the petitioner in the present case in view of the ruling of the Supreme Court in S.R. Batra vs. Taruna Batra (2007) 3 SCC 169, particularly, the observations in para 29 of which read as under:-
“As regards Sec. 17 (1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant no.2, mother of Amit Batra. Hence it cannot be called a ‘shared household’.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th August, 2018
 Crl.M.C. 2082/2016 & Crl.M.A. 8823-24/2016

MANJU GUPTA  Vs  PANKAJ GUPTA 

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

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Whether property of mother in law can be attached for recovery of maintenance granted to wife?

 Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.

19. Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefore but not of her mother-in-law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2003 of 2008 (Arising out of SLP (Civil) No. 1061 of 2007)

Decided On: 14.03.2008

Vimalben Ajitbhai Patel and Ors. Vs.  Vatslabeen Ashokbhai Patel and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and V.S. Sirpurkar, JJ.
Citation: 2008 (4) SCC 649

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Whether relief can be granted to a party without pleading?

 The last contention of the learned counsel for the appellant is in relation to
application of Section 53A of the T.P Act. It is well settled that the defendant who
intends to avail the benefit of this provision must plead that he has taken
possession of the property in part performance of the contract. Perusal of the
written statement of the first defendant shows that he has not raised such a plea.
Pleadings are meant to give to each side, intimation of the case of the other, so that,
it may be met to enable courts to determine what is really at issue between the
parties. No relief can be granted to a party without the pleadings. Therefore, it is
not open for the first defendant/appellant to claim the benefit available under
Section 53A of the T.P. Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD AND ORS.

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Whether suit for specific performance is maintainable on basis of unregistered agreement of sale?

This decision has been followed by a Ld. Single Judge of this Court in
Vinod Kumar v. Ajit Singh (2013) 138 DRJ 324 where the Court held
“10. In the instant case, the plaintiff has not sought
relief based on part performance under Section 53A of
the Transfer of Property Act and that being so, Section
17(1A) of the Registration Act, which was only meant
for the provisions of Section 53A of the Transfer of
Property Act, was not attracted and thus, the
agreement did not require registration. Such an
agreement falls under the mischief of Section 17(2)(v)
of the Registration Act, and it itself does not create,
declare, assign, limit or extinguish any right, title or
interest in the property. Rather as held in Sukhwinder
Kaur (supra) it creates a right to obtain another
document which will, when executed, create, declare,
assign, limit or extinguish right, title or interest in the
property. Not only this, provisions of Section 49 of the
Registration Act make the position more clear. It
envisages that an unregistered document affecting
immovable property and required by this Act and the
Transfer of Property Act to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter -II of Specific Relief Act,
1877. As further held in Sukhwinder Kaur (supra), a
conjoint reading of Section 17(2)(v) and proviso of
Section 49 of the Act leaves no room for doubt that
agreement to sell property itself does not create any 
right or title over the property. It is the sale deed,
which when executed will create such right in the
property. Hence, an agreement to sell is not required
to be registered and the same is receivable in evidence
in a suit for specific performance under Chapter-II of
the Specific Relief Act, 1877.”
24. Based on the above judgments it is clear that it is permissible in law to
seek specific performance of an unregistered agreement to sell, when
possession of the property has not been handed over. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd May, 2018
 RFA 700/2016 & CM APPL. 44927/2017

RISHI RAJ & ORS  Vs  RAKESH YADAV 

CORAM:
JUSTICE PRATHIBA M. SINGH

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Whether joint owners of property can be given unequal share in partition?

 I however cannot agree with this argument for the reason that
before partition, depending on the circumstances, one or more coowners
can stay in possession of the joint properties, but mere
possession will not prove existence of partition, more so when trial 
court has rightly observed and held that the partition is clearly
inequitable because out of two properties jointly owned by Sh. Surat
Singh and Sh. Mahinder Singh, Sh. Surat Singh cannot claim to have
become owner of one and a half share of the two properties. Also trial
court has also observed that one lone fact of receiving rent of one shop
is not enough to hold that partition had taken place in the fifties, and
that too an unequal and inequitable partition, where the predecessorin-interest
of the appellants/defendants (Sh. Surat Singh) received
75% of the two properties and the predecessor-in-interest of
respondent nos. 1 and 2/plaintiffs received only 25% share when
admittedly both Sh. Surat Singh and Sh. Mahinder Singh had 50%
share each.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No. 331/2018
20th April, 2018

KULWANT SINGH Vs  GURDEEP SINGH 

CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA

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Whether court should grant mandatory injunction to protect property from encroachment?

Having considered the rival submissions, we find force in the argument of Respondent No. 1 that even if the claim of Respondent No. 1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No. 1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No. 1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No. 1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5366 of 2017 (Arising out of SLP (Civil) No. 3873 of 2014)

Decided On: 01.05.2017

 Poonnamma Jagadamma and Ors. Vs. Narayanan Nair and Ors.

Hon'ble Judges/Coram:

Dipak Misra and A.M. Khanwilkar, JJ.

Citation: 2017(6) MHLJ  484

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Whether bank account is a property which can be freezed during course of investigation?

Having considered the divergent views taken by different High Courts with regard to the power of seizure Under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be 'property' within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Code of Criminal Procedure. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Code of Criminal Procedure and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the Accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the Accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the Accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the Accused or any of his relations is 'property' within the meaning of Section 102 of the Code of Criminal Procedure and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1099 of 2017 

Decided On: 15.12.2017

Teesta Atul Setalvad and Ors. Vs. The State of Gujarat and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I. and A.M. Khanwilkar, J.

Citation:(2018) 2 SCC 372

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Whether husband is entitled to get property of deceased wife if she had inherited said property from her parents?

In order to appreciate the rival submissions advanced by learned counsel for petitioners and respondent, in my opinion, it would be necessary to consider the provisions of section 15 of the Hindu Succession Act, which are reproduced, for ready reference, as follows:—

“15. General Rule of succession in case of female Hindus-B(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub section (1)-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein, but upon the heirs of the husband.”

12. Thus, as per sub section (2) of section 15, notwithstanding anything contained in sub section (1), any property inherited by a female Hindu from her father or mother, shall devolve, in the absence of any son or daughter of the deceased not upon the legal heirs referred in sub section (1) in the order specified therein, but upon the heirs of the father. This provision, thus, clearly excludes the husband from inheriting the property received by a female Hindu from her parents if she was not having any children or has died issueless.

13. In the instant case, admittedly the suit property was received by deceased Sundarabai from her parents and admittedly plaintiff Nos. 2 to 5 are not her children as they are born to respondent from his second wife. Therefore, it follows that Sundarabai has died issue-less and in such situation, in the absence of her son or daughter, her husband also cannot inherit her property and the property will devolve upon the legal heirs of her father. Respondent being her husband and not the legal heir of her father, cannot get any share in the property left behind by Sundarabai. Therefore, he has no cause of action to file the suit for partition of Sundarabai's property. The trial Court should have, hence rejected the plaint not only in respect of plaintiff Nos. 2 to 5 but also in respect of respondent.

In the High Court of Bombay

Civil Appellate Jurisdiction

(Before Shalini Phansalkar-Joshi, J.)

Tarabai Dagdu Nitanware v. Narayan Keru Nitanware

Writ Petition No. 14090 of 2017

Decided on January 15, 2018

Citation: 2018 SCC OnLine Bom 91 : (2018) 2 Mah LJ 242 : (2018) 2 AIR Bom R 98:AIR 2018(NOC) 708 Bom

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Whether court can direct court commissioner to deliver possession of property in execution of partition decree?

Without   following   the   aforesaid   guidelines,   the
trial   Court   has   passed   an   order   directing   the   Court
Commissioner to deliver the possession of the property to the
parties concerned upon preparing the report.  This is not the
method which is contemplated by the aforesaid guidelines
laid down by the Apex Court.  After submission of the report
by the Court Commissioner, the parties are to be given an
opportunity to raise objection and thereafter the final decree

proceedings can be concluded after hearing the parties.  In
view of above, the order impugned to the extent it directs the
Court Commissioner to deliver the possession to the parties
concern cannot be sustained and the same will have to be
set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4758 OF 2016 
Latabai Subhashrao Dahake,
V
Jayant Punjaji Takarkhede,


CORAM: R. K. DESHPANDE, J.
    DATE     : 17th OCTOBER 2016
Citation: 2017(3) ALLMR 49

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Whether prospective buyer can retain possession of property if his suit for specific performance is dismissed?

In our considered opinion, one of the effects of the dismissal of Appellant's suit/appeal, which was filed for specific performance of the agreement, was that the Appellant was not entitled to retain possession of the suit land. In other words, the possession of the Appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the Respondents to claim back the same from the Appellant on the strength of their ownership.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5039 of 2009

Decided On: 05.12.2017

Revanasiddayya Vs Gangamma and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation:(2018) 1 SCC 610

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Whether father can execute will in respect of property which he got in partition of joint family property?

 It is clearly emerging factual and legal position in the matter that there had been partition among father and three sons in 1978 whereunder each of them received one fourth share in the inherited coparcenary property and that in 1990, the father under a registered will, had bequeathed his one fourth separate share received in partition, to only two sons. The third son though being alive, had not received anything under the bequest. Father of the plaintiff died in 1991. Thereafter, the properties bequeathed were being enjoyed by the two sons as their independent properties. That enjoyment had never been questioned by the third son. The Maharashtra amendment to Hindu Succession Act had been effective since 1994 and amendment to section 6 to Hindu Succession Act had been made effective from 2005. Disposition of the property by the father of the plaintiff, as such, obviously has been before 20th day of December, 2004. On partition, the property had become separate property of father and as such, he had an absolute right to deal with the same and which he did by executing a registered will, which appears to have been acted upon. Coparcenary nature of the property had ceased to continue upon partition of the properties among the partitioning members of the coparcenary, since 1978. It is not the case that any male member had been born after 1978 to deceased father in order to lay claim to any share in the property. Father admittedly had executed will of his partitioned separate share in 1990 and in 1991, he has expired. Disposition of suit property among coparceners then had taken place before Maharashtra Amendment of 1994 to Hindu Succession Act, 1956. Even if it is assumed that amendment to section 6 of the Hindu Succession Act, is retroactive, the legislature has already made its intention clear that disposition of properties made before 20th December, 2004 would remain unaffected.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 440 of 2015

Decided On: 22.03.2017

 Leelavati Baburao Chaudhari Vs. Pitambar Shridhar Attarde and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh, J.

Citation: 2017(6) MHLJ 469

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Whether eviction suit in respect of property in possession of court receiver can be instituted without leave of court?

The points for consideration which arise in the present petition are whether the institution of a suit for eviction of a tenant in respect of the premises which is in custody of the Court Receiver would be ab initio bad in the absence of leave being obtained prior to the institution of the suit and whether such a leave can be obtained after the disposal of the suit?

 The Apex Court In Kanhalydial's case (supra) has held that, "The general rule that property in custodia legis through its duly appointed Receiver is exempt from Judicial process except to the extent that the leave of that Court has been obtained, is based on a very sound reason of public policy, namely, that there should be no conflict of jurisdiction between different Courts. If a Court has exercised its power to appoint a Receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other Courts or Tribunals of co-ordinate or exclusive jurisdiction were to permit proceedings to go on independently of the Court which has placed the custody of the property in the hands of the Receiver, there was a likelihood of confusion in the administration of justice and a possible conflict of jurisdiction."

It is also held that,

".... if any Court which is holding the property in custodia legis through a Receiver or otherwise, is moved to grant permission for taking legal proceedings in respect of that 'property, the Court ordinarily would grant such permission if considerations of justice require it. Courts of justice, therefore, would not be a party to any interference with that sound rule."

 In the case of Everest Coal Company (supra), the Apex Court has held that.

"....When a Court puts a Receiver in possession of property, the property comes under Court custody, the Receiver being merely an officer or agent of the Court. Any obstruction or interference with the Court's possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the Court, the sin is absolved and the proceeding may continue to a conclusion on the merits."

It was further held therein that,

"... Grant of leave is the rules, refusal the exception. After all, the Court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the Receiver represents neither party, being an officer of the Court. For this reason, ordinarily the Court accords permission to sue, or to continue. The jurisdiction to grant leave is undoubted and inherent, but not based on black-letter law in the sense of enacted law."

Their Lordships have then observed thus :-

"... Equally clearly, prior permission of the Court appointing the Receiver is not a condition precedent to the enforcement of the cause of action. Nor is it so grave a vice that later leave sought and got before the decree has been passed will not purge it. If before the suit terminates, the relevant Court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the lis may prove fatal."

8. it is thus clear that though it is not a statutory requirement, but a rule of equity based on sound public policy particularly to avoid conflict of jurisdiction between different Courts, that the leave of the Court is to be obtained for any judicial process in relation to the property in custodia legis. It is also by now well established that such leave be generally obtained prior to institution of the suit, but failure thereof can be cured by obtaining the leave during the pendency of the proceedings-

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4763 of 1987

Decided On: 30.06.2000

M/s Hi-Fi Sound Corporation  Vs. M/s. Vinsons, A Firm and Court Receiver, High Court

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2001(2) MHLJ270,2001(1) ALLMR 807

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Whether mandatory injunction can be granted for vacation of property by person in permissive possession of property?

 I have given my anxious consideration to the arguments advanced by the counsel appearing for both parties at the Bar. In view of the rival contentions, the first question that arises for consideration is whether a suit for mandatory injunction simpliciter requiring vacation of the property is maintainable against the licensee or a person in permissive occupation whose licence or occupation has been terminated by the licensor? To consider the question in controversy, it is worthwhile to quote the relevant Sections.

9. Section 39 of the Specific Relief Act, 1963, reads as follows:

Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

10. Section 52 of the Indian Easement Act, 1882, reads as follows:

"License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

11. Let us make a combined analysis of Section 52 of the Indian Easement Act and Section 39 of the Specific Relief Act, to determine the question arose above. Licence is a permission granted to the licensee to do or continue to do some act in or upon the immovable property. But the granting of that permission does not create any interest in the property and in the absence of such permission the act would be an unlawful one also. Licensee may be the actual occupant of the property and there cannot be an element of animus possidendi. A licensee has only a right of occupation with the permission of licensor and his possession is not a juridical possession. Since the permission granted is a limited one, which does not cause to create an interest in the property, the licensor has a right to revoke the permission which he had given earlier. Necessarily, such revocation correspondingly casts an obligation on the licensee to vacate the property in obedience to the revocation of permission. If that be so, if the licensee fails to perform his obligation, i.e., vacation of the property, the Court can issue a mandatory injunction to prevent the breach of said obligation and to compel the vacation of the immovable property. Thus, a combined analysis of Section itself makes the issuance of mandatory injunction against the licensee to vacate the property in possession of licensee within the legislative sanction under Section 52 of the Indian Easement Act and under Section 39 of the Specific Relief Act.

12. It follows that such mandatory injunction order to vacate the property is an enforceable one under Order XXI Rule 32, particularly, in view of Explanation under sub-rule (5) of Order XXI, which clarifies that "the act required to be done covers both prohibitory as well as mandatory injunction".

 Even after the termination of the licence, the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove the materials belonging to him and quit the place. But, during such time also, the licensor will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case, a licensee cannot possibly be treated as a trespasser. Further, it is held that it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and upto what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor slept over the matter, then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances, the licensor will have to sue for recovery of possession and a suit for a mandatory injunction under Section 39 of the Specific Relief Act, 1963, will not be the remedy. Put it differently, the real test is whether on the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept over the matter despite the assertion of hostile title made by the licensee, after the termination of licence?

IN THE HIGH COURT OF KERALA

R.S.A. No. 1278 of 2010

Decided On: 18.02.2014

Abraham Mathew Vs.  Mariamma Yohannan

Hon'ble Judges/Coram:

K. Harilal, J.

Citation: 2015(1) RCR (RENT)19

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Supreme Court: Caretaker, watchman or servant can not claim possession of property against its owner

Principles of law which emerge in this case are crystallized as under:

1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

IN THE SUPREME COURT OF INDIA

Appeal No. 2968 of 2012 (Arising out of SLP (C) No. 15382 of 2009)

Decided On: 21.03.2012

Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L. Rs.

Hon'ble Judges/Coram:

Dalveer Bhandari, H.L. Dattu and Deepak Verma, JJ.

Citation: (2012) 5 SCC 370,

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