Can the person who purchases the property after notification U/S 4 of the land acquisition Act challenge the acquisition proceedings?

 In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title."{Para 18}

 IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 2513 of 2021

Mario Beraldo Fernandes Vs. The State of Goa and Ors.

Hon'ble Judges/Coram:

M.S. Sonak and R.N. Laddha, JJ.

Author: M.S. Sonak, J.

Decided On: 08.02.2022

Citation: MANU/MH/0429/2022

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Whether purchaser of immovable property must remain present before sub-registrar at the time of registration of sale deed?

 The main dispute involved in this appeal concerns the

question of necessity of presence of a purchaser of immovable

property before the authority under the Registration Act, 1908 at

the time of effecting registration of a deed of conveyance.

The case has been decided in favour of the plaintiff on the

ground that the buyer was not present at the time of

registration of sale deed. There is evidence to the effect that the

second defendant (Manchegowda) had not come to the office of

the SubRegistrar at the time of execution of the sale deed. But

as per law as it stood at the material point of time, there was no

necessity of presence of purchaser at the Registration Office

during the registration of sale deed. The deed was executed by

Madegowda and that aspect has not been disputed. The deed in

question does not fall within Sections 31, 88 and 89 of the

Registration Act. Section 32 of the said Act does not require

presence of both parties to a deed of sale when the same is

presented for registration. In such circumstances, we do not

find any reason to interfere with the judgment of the High

Court.

(NonReportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2010

H.P.Puttaswamy  Vs  Thimmamma & Ors. 

Author: ANIRUDDHA BOSE,J.

Dated: 24th January, 2020.

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Whether the presence of purchaser is necessary for the registration of sale deed?

So far as the provisions of Registration Act, 1908 is

concerned, the law requires presentation of the document to be

registered at the proper registration office by following categories

of persons:“

32. Persons to present documents for

registration.—Except in the cases

mentioned in [Sections 31, 88 and 89],

every document to be registered under

this Act, whether such registration be

compulsory or optional, shall be

presented at the proper registration

office,(

a) by some person executing or claiming

under the same, or, in the case of a copy

of a decree or order, claiming under the

decree or order, or

(b) by the representative or assign of such

a person, or

(c) by the agent of such a person,

representative or assign, duly authorised

by powerofattorney

executed and

authenticated in manner hereinafter

mentioned.”

7. The plaintiff has not disputed that the vendor or seller i.e.

Madegowda had executed the document (first sale deed) and we

do not find any doubt expressed over his presence before the

Registering Authority. No case has been made out either that

the deed of conveyance carried any collateral obligation on the

part of the purchaser, in this case being Manchegowda (since

deceased). The plaintiff has not made out a case of acquiring

title under the principle of part performance as incorporated in

Section 53 (A) of the Transfer of Property Act, 1882. No pleading

to that effect in the plaint has been made out.

8. We find from the judgment of the Trial Court and the First

Appellate Court that the respective parties had led evidence of

execution and subsequent registration of the deeds but the first

two courts did not reject the contention of the second set of

defendants that there was no execution by Madegowda (since

deceased) of the deed of sale to Manchegowda (since deceased).

The case has been decided in favour of the plaintiff on the

ground that the buyer was not present at the time of

registration of sale deed. There is evidence to the effect that the

second defendant (Manchegowda) had not come to the office of

the SubRegistrar

at the time of execution of the sale deed. But

as per law as it stood at the material point of time, there was no

necessity of presence of purchaser at the Registration Office

during the registration of sale deed. The deed was executed by

Madegowda and that aspect has not been disputed. The deed in

question does not fall within Sections 31, 88 and 89 of the

Registration Act. Section 32 of the said Act does not require

presence of both parties to a deed of sale when the same is

presented for registration.

(NonReportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2010

H.P.Puttaswamy Vs  Thimmamma 

ANIRUDDHA BOSE,J.

Dated:24th January, 2020.

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Supreme Court: Agreement of sale signed by the vendor alone is valid

All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6197 of 2000

Decided On: 17.12.2008

 Alka Bose  Vs.  Parmatma Devi and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and P. Sathasivam, JJ.

Citation: AIR 2009 SC. 1527 

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Whether purchaser of immovable property is bound to make enquiry whether seller is minor or suffering from legal disability?

 Once it is proved that the plaintiff was a minor at the time of execution of the sale deed, the sale deed cannot be held to be a legal and valid document and is liable to be set aside to the extent of share of the plaintiff. As per law, there cannot be any estoppel against the statute. Once the law provides that a minor cannot enter into a valid contract, the contract, if any, entered into by the minor cannot be held to be legal and valid, using the doctrine of estoppel. The defendant should have been vigilant enough to ascertain that vendor Vikas had attained majority and was not suffering from any legal disability, before entering into the transaction in question with him and his brother.

15. Learned District Judge has referred to the judgment Lakhwinder Singh vs. Miss Paramjit Kaur, MANU/PH/0817/2003 : 2004 (1) LJR 371 (P&H), by this Court wherein it was observed that a transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor and on satisfying those requirement, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. It was further observed that under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the District Court. Learned District Judge has observed that no such permission was ever obtained in the instant case by brother of the minor to alienate the share of the minor in the property in dispute. Therefore, sale of the share of the minor respondent, made by his brother vide impugned sale deed Exhibit P-3 is void ab initio and not binding upon the rights of the respondent and sale deed is liable to be set aside to the extent of share of minor plaintiff Vikas.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 2752 of 2013 (O&M)

Decided On: 31.07.2019

Pearls Dream Palaces Construction (P) Ltd. Vs.  Vikas

Hon'ble Judges/Coram:

Harminder Singh Madaan, J.

Citation: AIR 2019 P &H 164

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Whether condition mentioned in allotment letter of land is binding on purchaser after execution of sale deed?

 We do not find any merit in any of the aforesaid arguments. In the first instance, it needs to be emphasised that there is no such condition of completion of construction within a period of two years in the sale deed. Such a condition was only in the allotment letter. However, after the said allotment, the Appellant-Corporation not only received entire consideration but executed the sale deeds as well. In the sale deeds no such condition was stipulated. Therefore, the High Court is right in holding that after the sale of the property by the Appellant-Corporation to the Respondents, whereby the Respondents acquired absolute marketable title to the property, the Appellant-Corporation had no right to insist on the conditions mentioned in the allotment letter, which cease to have any effect after the execution of the sale deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3020, 2995, 2994,of 2018

Decided On: 10.04.2018

 The Andhra Pradesh Industrial Infrastructure Corporation Limited 

Vs.

 S.N. Raj Kumar and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: 2019(1) MHLJ 587

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Whether sale deed not signed by purchaser is valid?

This is obviously because the said document is executed by the vendor in their favour. In this context, the question that arises for consideration is, as to whether it is mandatory that purchasers need to sign on sale deeds that are executed in their favour by the vendor. In the context of agreement of sale, the Hon'ble Supreme Court in its judgment in the case of Aloka Bose (supra) has held as follows:-

"16. On the other hand, the observation in S.M. Gopal Chetty, MANU/TN/0069/1997 : AIR 1998 Madras 169 that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it."

In the context of execution of sale deed, the Andhra Pradesh High Court in the case of Fazal Ullah Khan vs. State of Andhra Pradesh and others (supra) has held as follows:-

"11. A party to a transfer can certainly cancel it in case necessary ingredients as provided for under law, are established. Such transaction can be sale or for that matter any conveyance including gift, mortgage, exchange and the like. Though transactions such as sale and gift are brought into existence with unilateral acts of execution of the documents, the legal effect thereof is that the title in respect of the property stands transferred in favour of the transferred name therein, notwithstanding the fact that the transferee may not have subscribed his signature in the documents. From this point of view, the sale deed on the one hand and the gift deed on the other, stand on the same footing."

14. It appears that in transactions like the sale deed at Exh. 31 in the present case, in the context of sale and purchase of immovable property, it is the signature of the vendor being a person who executes the document that is crucial and absence of signature of purchasers does not render the document defective in any manner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 324 of 2002

Decided On: 23.03.2018

Hemant  Vs. Naresh and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5) MHLJ 246

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Whether purchaser of property can take benefit of doctrine of part performance if sale deed is exhibited?

 On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., MANU/SC/0246/2010 : (2010) 5 SCC 401 this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. Section 49 of the 1908 Act reads thus:

49. Effect of non-registration of documents required to be registered.- No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.

11. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, MANU/SC/7679/2008 : (2008) 8 SCC 564 and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18377 of 2017

Decided On: 04.07.2018

 Ameer Minhaj  Vs. Dierdre Elizabeth (Wright) Issar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 7 SCC 639

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Whether purchaser can get specific performance of contract if agreement of sell is not signed by some of coparcener?

It is an admitted fact that initially an agreement Ex. P-2 dated 26.9.1995 was executed between the plaintiff and defendant No. 1. It is also admitted fact that the defendant No. 1 is not the sole owner of the land for which the agreement was executed. It was a coparcenary property. The other coparceners did not sign the initial agreement Ex. P-2. Subsequently, the period of execution of sale deed was extended vide another agreement dated 26.12.1996 i.e. Ex. P-3. On the backside of the agreement, signatures of other persons who were coparceners are there to the effect that they had agreed to extend the time. But fact remains that at the time of initial execution of the agreement, all the co-owners had not signed the agreement. The sale deed was not executed within time as per the initial agreement. The trial Court relied on the testimony of PW-3 Head Constable Shri Shivcharan Tiwari to the effect that some co-sharers had filed affidavits i.e. Ex. P-14 to Ex. P-16 and admitted that they had knowledge in regard to execution of agreement dated 26.9.1995. The defendants No. 2 to 5 have specifically denied that they had executed any agreement or authorized to execute the agreement to the defendant No. 1 on their behalf.

12. The Apex Court in the matter of Shanmughasundaram and others vs. Diravia Nadar (dead) by LR's and another, MANU/SC/0190/2005 : AIR 2005 SC 1836 has held in regard to enforceability of an agreement which was not executed by all the co-shares. The Apex Court has held as under:

"29. The facts in present case are distinguishable. Admittedly, the property has been jointly inherited by two brothers and three sisters. As heirs under the Hindu Succession Act, they inherited the property as co-owners. In the absence of partition between them, the two brothers together had undivided share in the property and they could not have agreed for sale of the entire property. They were competent to execute agreement to the extent only of their undivided share in the property. In the event of sale of such undivided share, the vendee would be required to file a suit for partition to work out his right in the property. The left out three sisters as co-owners having undivided share in the whole property, the two brothers are incompetent to abide by the award.

30. Learned counsel makes a reference to Section 12 of the Specific Relief Act 1963 and submits that arbitration agreement and consequent award should be allowed to be enforced to the extent of share of two brothers leaving the vendee to work out his right, if necessary, in case the sisters object to the sale, by a suit in accordance with Section 12 of the Specific Relief Act.

31. Section 12 of the Specific Relief Act, in our considered opinion, would be of no assistance in the situation obtaining here. In the absence of sisters being parties to the agreement, the vendee can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act can not be invoked by the vendee to obtain sale of undivided share of the two brothers with a right to force partition on the sisters who were not parties to the agreement of sale. Such a relief under section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the sale agreement."

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

First Appeal No. 340 of 2003

Decided On: 01.09.2016

 Anand Kumar and Ors. Vs.  Rajesh Kumar and Ors.

Hon'ble Judges/Coram:

S.K. Gangele and Ashok Kumar Joshi, JJ.

Citation: AIR 2017(NOC) 914 MP

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Whether purchaser is subject to lis pendens even after dismissal of suit?

It was also submitted on behalf of the appellants that the expression in
section 52 of the T.P. Act “suit or proceedings” is also applicable to the
applications. An application seeking extension of time is also a proceeding within
the meaning of the said provision and appeal filed is also continuation of the suit or
proceedings but comes within the meaning of the proceedings. The legislative
intent behind the amendment of section 52 was not only to cover the suit but also
to cover appeals and proceedings and same would include all applications/appeals
under the CPC. An application under Order 9 Rule 9 would also be covered within
the meaning of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to amendment
prohibited transfer made during the “active prosecution” of a suit. Section 52 of the
Transfer of Property Act, embodies the rule of lis pendens, which prior to its
amendment only prohibited a transfer made during the “active prosecution” of a
suit or a proceeding in which any right to immoveable property was directly and
specifically in question. The expression “active prosecution”, which existed in the
section before its amendment in 1929, led to much uncertainty in the application of
the rule, and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be defined
with precision. To remove this uncertainty, the law was amended in 1929, and the
Amending Act XX of 1929 substituted the word “pendency” for the phrase “active
prosecution”; and there can now be no difficulty in deciding whether the transfer
was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram
Charan & Ors. AIR 1937 PC 260, it was held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India
that the plaintiffs had not actively prosecuted the suit, and were
consequently debarred from availing themselves of the rule of lis
pendens. The learned Judges of the Court of Appeal had, therefore, no
opportunity to express their opinion on this point; and their Lordships
cannot entertain an objection, which depends upon a question of fact
not dealt with below. Upon the record before them, there is no
indication of any delay or remissness in the prosecution of the suit, for
which the plaintiffs can be held responsible. Their Lordships,
therefore, agree with the High Court that the transfer relied upon by
the appellant cannot prejudice the rights of the decree-holders, and
that he cannot resist the decree obtained by them.”
The abovesaid principle of law settled in the year 1937 by the Privy Council
is still valid as discerned from the latest judgment of this Court rendered in the
case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9 SCC 356 :
 “21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by
Section 52 of the Transfer of Property Act, 1882, as the said deed was
executed during the pendency of the proceedings and before the
expiry of the period of limitation for filing SLP. Further, during the
pendency of these proceedings, the second defendant, who has
claimed to be the alleged beneficiary of the suit Schedule “B”
property on the basis of alleged gift deed should have sought leave of
this Court as the donee and brought the aforesaid fact of execution of
the alleged gift deed in respect of “B” schedule property by the
deceased first defendant, which property has been devolved in his
favour, to the notice of this Court as provided under Order 22
Rule 10 of the CPC and defended his right as required under the law
as laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the
Schedule 'B' property has been further examined by us and the same is
hit by Section 52 of the Transfer of Property Act, 1882, in the light of
the decision of this Court in the case of Jagan Singh v. Dhanwanti
(2012) 2 SCC 628, wherein this Court has laid down the legal
principle that under Section 52 of the Transfer of Property Act, 1882,
the 'lis' continues so long as a final decree or order has not been
obtained from the Court and a complete satisfaction thereof has not
been rendered to the aggrieved party contesting the civil suit. It has
been further held by this Court that it would be plainly impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead) through LRs.
v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
 “32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit,
a purchaser is subject to lis pendens, if an appeal is afterwards filed,
as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom
475. In that matter the respondent (original plaintiff) had filed a suit
for maintenance against her husband and claimed a charge on his
house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of
the Code of Civil Procedure 1908, for non-payment of process fee.
The husband sold the house immediately on 17.7.1952. The
respondent applied for restoration on 29.7.1952, and the suit was
restored leading to a decree for maintenance and a charge was
declared on the house. The plaintiff impleaded the appellant to the
darkhast as purchaser. The Appellant resisted the same by contending
that the sale was affected when the suit was dismissed. Rejecting the
contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood
before it was amended by Act 20 of 1929, the expression
‘active prosecution of any suit or proceeding’ was used. That
expression has now been omitted, and the Explanation makes it
abundantly clear that the 'lis' continues so long as a final decree
or order has not been obtained and complete satisfaction thereof
has not been rendered. At p. 228 in Sir Dinshah Mulla's
"Transfer of Property Act", 4th Edn., after referring to several
authorities, the law is stated thus:
“Even after the dismissal of a suit a purchaser is
subject to 'lis pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is
presented, the 'lis' continues so as to prevent the defendant
from transferring the property to the prejudice of the plaintiff, I
fail to see any reason for holding that between the date of
dismissal of the suit under Order 9 Rule 2 of the Civil
Procedure Code and the date of its restoration, the 'lis' does not
continue.”
33. It is relevant to note that even when Section 52 of TP Act was
not so amended, a Division Bench of Allahabad High Court had
following to say in Moti Chand v. British India Corpn. Ltd. AIR
(1932) All 210:
‘10, ….The provision of law which has been relied upon
by the appellants is contained in Section 52, TP Act. The active
prosecution in this section must be deemed to continue so long
as the suit is pending in appeal, since the proceedings in the
appellate court are merely continuation of those in the suit
…’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR
1988 15 Cal. 94).”
34. If such a view is not taken, it would plainly be impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail. The Explanation to
this section lays down that the pendency of a suit or a proceeding shall
be deemed to continue until the suit or a proceeding is disposed of by
final decree or order, and complete satisfaction or discharge of such
decree or order has been obtained or has become unobtainable by
reason of the expiration of any period of limitation prescribed for the
execution thereof by any law for the time being in force.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of
the applicant at a time when there was no stay operating against such
sale, and in fact when the second appeal had not been filed. We would
however, prefer to follow the dicta in Krishanaji Pandharinath AIR
1959 Bom 475 to cover the present situation under the principle of lis
pendens since the sale was executed at a time when the second appeal
had not been filed but which came to be filed afterwards within thePage 36
36
period of limitation. The doctrine of lis pendens is founded in public
policy and equity, and if it has to be read meaningfully such a sale as
in the present case until the period of limitation for second appeal is
over will have to be held as covered under Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the proceedings in
the nature of an appeal as has been emphasized in the case of Krishanaji
Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was
obtained, it must be regarded as pendente lite. In s. 52 of the Transfer
of Property Act, as it stood before it was amended by Act XX of 1929,
the expression “active prosecution of any suit or proceeding” was
used. That expression has now been omitted, and the Explanation
makes it abundantly clear that the lis continues so long as a final
decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At page 228 in Sir Dinshah Mulla’s
“Transfer of Property Act”, 4th edn., after referring to several
authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc. 

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Whether purchaser of joint family property can file suit for partition of specific property?

 There are, therefore, in our view, substantial and good reasons for holding that a suit by the non-alienating coparceners for partition of a specific property out of the joint family properties is maintainable, whereas such suit by a stranger purchaser is not maintainable. The law that the non-alienating coparcener is entitled in Bombay to file a suit for partition of the alienated property without bringing a suit for a general partition, following the decisions in Hanmandas v. Valabhdas and Naro Gopal v. Paragovda, is, in our view, the correct law and we expressly declare it to be so. We, however, add that such a suit is competent only if all the non-alienating coparceners join in filing the suit thus showing their consent to partial partition which is the consequence of such a suit, the consent of the alienating coparcener being presumed from his act of the alienation. We also add that while decreeing the suit of the non-alienating coparceners for partition of the specific property, where it is necessary that equities in favour of the purchaser will have to be worked out in a general suit for partition of all the joint family property, a direction should be added that the execution of the decree in favour of the non-alienating coparceners should remain stayed for a specific period during which period the purchaser may file a suit for general partition and if such a suit is filed within the prescribed period, the stay of the execution of the decree should last until the disposal of the purchaser's suit for partition, but if such a suit for general partition is not brought by the purchaser within the specified period, then the decree in favour of the non-alienating coparceners should be executed.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 808 of 1967

Decided On: 08.07.1975

 

Patilbua Pandu Landge Vs. Sadashiv Vithoba Kamble and others

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh and B.M. Sapre, JJ.

Citation: 1976 MHLJ 158 Bom

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Whether court should refuse to pass decree for specific performance of contract if purchaser is not made party in appeal?

Vide order dated 27.02.2007 on Civil Application No.
1253/2007,   the   appellants   themselves   at   their   risk   deleted
respondent no.2 (one of the vendees) from the array of parties to
this appeal.  I find that in the absence of respondent no.2 (one of
the vendees), the question cannot be raised by the appellants.
Even   otherwise,   grant   of   decree   for   specific   performance   of
contract in favour of five vendees together would not and cannot
be affected, if one of the proposed vendees is not a party to the
appeal before the District Judge.   The rights of all the plaintiffs,
but for one, to ask for specific performance of contract merely
because one of the proposed vendees is not a party, cannot be
denied.  It is not in dispute that all the vendees were party to the
suit.  The other vendees would be entitled to execute the decree in

their favour.  That apart, the learned counsel for the appellants did
not raise any arguments on question no.2 but since the question
was framed, the same is being answered by me.
In view of above, the question no.2 will have to be
answered in the affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.60/2007
Santosh s/o Nathu Vaidya, V Namdeo s/o Adkuji Budde,

CORAM:­ A. B. CHAUDHARI, J.

Dated : 04.04.2016
Citation: 2017(2) ALLMR 340

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Whether purchaser of property can be denied title in property on ground that his name is not mutated in revenue record?

 In addition to the abovementioned reason, the contention advanced by the learned Counsel appearing on behalf of the Respondents that the Appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of entries does not confer title upon the deceased Respondent No. 1 in the immovable property. In the case of Sawarni v. Index Kaur and Ors.MANU/SC/0730/1996 : (1996) 6 SCC 223, this Court held as under:

7...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment....

22. In the case of Guru Amarjit Singh v. Rattan Chand and Ors. MANU/SC/0065/1994 : (1993) 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v. Hakam Singh and Ors.MANU/SC/0399/1994 : (1993) 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records. In the case of Thakur Kishan Singh (Dead) v. Arvind Kumar MANU/SC/0015/1995 : (1994) 6 SCC 591 andP.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. MANU/SC/7325/2007 : (2007) 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2151 of 2016 (Arising out of SLP (C) No. 2489 of 2011)

Decided On: 01.03.2016

 Prem Nath Khanna  Vs. Narinder Nath Kapoor and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and U.U. Lalit, JJ.

Citation:(2016) 12 SCC 235,AIR 2016 SC 1433.

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How to appreciate evidence adduced by purchaser if there is collusion between father and son?

 In the present matter agreement was entered
into on 12-2-1974 and it can be said that possession of the
property was with the family of the plaintiffs and
defendant No.1 from prior to the date of agreement.
Though in the pleadings it is the case of the plaintiffs that
they were driven out of the house by defendant No.1 and
then they had started business in the premises in
Ambajogai, the record is otherwise and it shows that the
premises was given on rent basis to defendant No.1 and
he was the proprietor of the said business. When there is
collusion between defendant No.1 and plaintiffs, some
inference needs to be drawn against the plaintiffs and
defendant No.1 as there is power with the Karta of joint
Hindu family to decide as to whether there is legal

necessity for selling the property.
15) Learned counsel for the respondent placed
reliance on cases reported as 2010 (5) Mh.L.J. 713
(Ramchandra vs. Vasant), A.I.R. (33) 1944 Oudh 92 (Sant
Bakhsh Singh v. Lachhman Prasad) and the decision
given of this Court, other Hon'ble judge in Second Appeal
No.287/1989 (between Suryakant Manikrao Deshmukh
and Mahavir Sahebrao Maske). In those cases also when
the question of legal necessity was involved, the suit
involving setting aside of the sale, made by father and
father did not turn up to give evidence, presumption was
drawn that there was legal necessity. In the present
matter also there is evidence that the plaintiffs and
defendant No.1 are living together and they are benefited
by the consideration. As there is no evidence, the
inference is not possible that defendant No.1 was addicted
to bad vices and the sale proceeds were not utilized for
the family. If they are living together there was some
reason for the sale and the reason given by the defendant
No.2 is that the land was not giving sufficient income and
so they started business at Ambajogai. Thus necessary

probability was created by the defendant No.2 in his
favour on the point of legal necessity and the District
Court has not committed any error in holding that thisburden is discharged by the purchaser. In the result, the
point is answered against the appellants and the appeal

is dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 125 of 1992

 Shridhar s/o Bajirao Pawar,

V
 Bajirao s/o Dhondiba Pawar,

 CORAM: T.V. NALAWADE, J.

 DATE : 22 JULY 2016
Citation: 2016(6) ALLMR 280

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Whether purchaser can compel seller to redeem the mortgage and to obtain a valid discharge?

 Another important aspect of this case that has slipped the eyes of the courts below is the question of the mortgage of the suit property, as pleaded by the defendant Nos. 4 and 5. They placed the confirmation of mutation in favour of the Bank, Ex. D-1 and the Mortgage deed, Ex. D-2 as evidence. The plaintiffs have referred to the same in para 2 of their pleadings and the defendants, in reply have admitted this in para 2 of their written statement wherein they have stated that it is a matter of record that they have mortgaged their portion of the land in favour of defendant Nos. 4 and 5. More importantly, the plaintiffs have admitted the same in para 2 of their plaint, therefore it was in their knowledge that the land in question was already mortgaged with defendant Nos. 4 and 5. There has been no finding recorded on the same by either the appellate courts or the Trial Court and as per Section 13(c) of the Act, when the vendor (the defendants herein) professes to sell unencumbered property but the same is mortgaged, then the vendor has only a right to redeem it and the purchaser may compel him to redeem the mortgage and to obtain a valid discharge. This aspect of the matter, too, has not been dealt with by the Trial Court or the appellate courts.

Supreme Court of India

Shamsher Singh & Ors vs Rajinder Kumar & Ors on 16 April, 2014

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

Citation;(2015)5 SCC531

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Whether builder is liable to pay damages to purchaser for breach of duty owed by builder to purchaser?

 In this backdrop, it would be seen that in the tort liability arising out of contract, equity steps in and tort takes over and imposes liability upon the defendant for unqualified damages for the breach of the duty owed by the defendant to the plaintiff. Equity steps in and relieves the hardships of the Plaintiff in a common law action for damages and enjoins upon the defendant to make the damages suffered by the plaintiff on account of the negligence in the case of the duties or breach of the obligation undertaken or failure to truthfully inform the warranty of title and other allied circumstances. In this case, it is found that four floors were unauthorisedly constructed and came to be demolished by the New Delhi Municipal Council. It does not appear that the owners of the flats were informed of the defective or illegal construction and they were not given notice of caveat emptor. Resultantly, they are put to loss of lacs of rupees they have invested and given as values of the flats to the builder- respondent.

12. The question arising for consideration is: whether the appellants should be re-compensated for the loss suffered by them? The High Court in the impugned judgment has directed the return of the amount plus the escalation charges. We are informed that the escalated price as on the date is around 1.5 crores per flat. In this situation, taking into consideration the totality of the facts and circumstances, we think that the builder-respondent should pay Rs. 60 lacs including the amount paid by the allottees, within a period of six months from today.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3694 of 1997

Decided On: 06.05.1997

Appellants: Manju Bhatia (Mrs) and Anr.
Vs.
Respondent: New Delhi Municipal Council and Anr.

Hon'ble Judges/Coram:
K. Ramaswamy, S. Saghir Ahmad and G.B. Patnaik, JJ.

Citation: AIR1998SC223,(1997)6SCC370,

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Whether purchaser in suit for specific performance of agreement can be directed to deposit sale consideration in court?

The position in law, on the subject of issuance of direction to a plaintiff /
purchaser in a suit for specific performance of an Agreement to Sale of
immovable property to deposit the balance sale consideration in Court can thus
be culled out as under:-
(i)
Section 16(c) of the Specific Relief Act, 1963 provides that
specific performance of a contract cannot be enforced in favour of
a person who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms of the
contract which are to be performed by him. It is thus necessary for
a plaintiff in a suit for specific performance, to aver and prove that
he, on the stipulated date, was in a position to pay the balance sale
consideration and had tendered or was ready and willing to tender
the same to the seller;

(ii)
however the Explanation (i) of Section 16(c) supra provides that
where the contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or to
deposit in the Court any money except when so directed by the
Court. Thus the plaintiff in a suit for specific performance, is not
required to as a matter of routine and as a condition to the
maintainability of the suit, deposit the balance sale consideration in
the Court, though the Court is empowered to direct the plaintiff to
do so;
(iii)
if as per the agreement of which specific performance is sought,
the plaintiff / purchaser was required to part with the balance sale
consideration only against delivery of title and physical possession
of the property, to make such a plaintiff / purchaser part with the
balance sale consideration without delivery of title and possession
to him would be contrary to the agreement and the jurisdiction of
specific performance thereof;
(iv)
to hold that though as per the agreement the plaintiff / purchaser is
liable to part with the balance sale consideration only against the
delivery of title and possession but to test his readiness and

willingness, he can be directed to part therewith even without
delivery of title and possession, would amount to the Court making
a new contract and which is beyond the scope of jurisdiction of
specific performance;
(v)
a direction to the plaintiff / purchaser to deposit balance sale
consideration in the Court as a condition to maintainability of the
suit for specific performance can be made only where the Court,
for reasons to be recorded, entertains a doubt about the readiness
and willingness of the plaintiff / purchaser. Only where the Court
feels that though an averment as postulated in Section 16(c) is
made, but the plaintiff may not have the money to pay the balance
consideration, can the Court, to satisfy itself about the truthfulness
about the averment, direct to deposit the money in Court. This
course is however to be adopted rarely;
(vi)
the question of payment otherwise would arise only after the trial
of the suit and when the rights of the parties are determined and
such a direction should be issued when the final decree is passed
and not at an earlier point of time; and

(vii) direction to the plaintiff / purchaser to deposit the balance sale
consideration in the Court can also be made as a condition for
granting interim relief sought of restraining the defendant / seller
from, during the pendency of the suit, dealing with the property
agreed to be sold or to balance the equities in appropriate cases but
again, not as a matter of routine i.e. only where the readiness and
willingness of the plaintiff / purchaser is in doubt and again, rarely;
the effect of non-deposit inspite of such direction in such cases will
only be vacation of the interim order or applicability of Section 52
supra and not to ipso-facto presume the plaintiff / purchaser to
have been not ready and willing.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th May, 2014

FAO(OS) 239/2014

SHRI BAL KRISHAN GUPTA  Vs  SHRI VIKAS AGGARWAL 

CORAM :-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

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Whether benefit of S.53A of transfer of property Act can be claimed on the basis of oral agreement?

The learned counsel further argued that the plaintiff has
failed to prove the execution of Ex-P/2 by the defendant by
which the possession of the disputed plot was given by the
plaintiff
to
the
defendant
as
per
plaintiff's
pleadings.
Consequently, the defendant has been provided protection
under Section 53-A of the Transfer of Property Act as the
possession was given to the defendant on 20.09.02 by receiving

a sum of Rs. 40,000/- as part payment of consideration as per
sale agreement. The said contention has also no relevance in
this case as the said contract is oral whereas for seeking
protection under section 53-A of the T.P. Act the contract to sell
must have been written one. Moreover, terms and conditions of
the contract ought to be complied with by the purchaser on his
part. In this case, both the conditions on the part of the
defendant have not been fulfilled. The judgment in the case of
Bhavuti vs. Alam (deceased) through Lrs. And anr. 2013 (4)
M.P.L.J. 39 has held that the transferee has to show that he
has done some act in furtherance of the contract and has
performed or is ready and willing to perform part of his contract.
In this case the defendant has not tried to get the sale
deed executed in his favour as per alleged oral contract to sell.
Thus, the inference is drawn that the defendant has not
complied with the requisite conditions for part performance of
the contract under Section 53-A of the T.P. Act. Hence, the
defendant is not entitled to get the permission of the Section 53-
A of the T.P.Act.
MADHYA PRADESH HIGH COURT
GWALIOR BENCH
S.A. No.383/2013
17/01/2014
Dhannalal ahirwar v Satyanarayan

Citation; AIR 2014(NOC) 497 MP

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Whether purchaser can claim relief of specific performance of contract on the basis of Token pavti?

 In the case of Kolli Para Sriramulu v. T. Aswatha Narayana, MANU/SC/0019/1968 : [1968]3SCR387 the Supreme Court has dealt with the effect of a reference to a future formal contract in an oral agreement. It has observed that the fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case.

 In the present case if we examine the writing it can be seen that only a sum of Rs. 1101.11 was paid out of the agreed sale price of Rs. 5,75,101.11. The 2nd appellant in his evidence has referred to this payment as a token payment. It does not have the character of earnest money for the due performance of the contract. In fact the respondent did not even encash this cheque.

Bombay High Court

H.S. Khan And Sons And Anr. vs Homi J. Mukadam on 18 September, 1990

Equivalent citations: 1991 (2) BomCR 61, (1991) 93 BOMLR 254

Bench: S Manohar, T Sugla

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