Whether a party can claim the right of easement by their partition deed if their ancestors did not have easement right?

Hence, I find that the alleged easement right was not proved either by the defendants 1 and 2 or by their vendors. While things be so, they cannot create by way of deed of partition entered between the defendants themselves in the year 1978, when no such right was existed with the ancestors of the defendants as could be seen from Ex. B3. The defendants are not disputing the title of the plaintiff in S. No. 88/3 as their vendors(defendants) were parties to the earlier partition. Thus, as such when there is no reference with regard to the alleged cart track in the plaintiff's property in those parent documents, the defendants herein cannot claim easement right by way of grant.

{Para 35}

38. Hence I find that the decision rendered by Justice Dr. G. JAYACHANDRAN reported in MANU/TN/0413/2019 : 2019 (5) CTC 80 [K. Kalianna Gounder and another v. Sundararaj and another] is squarely applicable to the facts and circumstances of this case, wherein it is held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act. It has been further held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act and it is "neither can be created nor be destroyed by reading of recital in document to the convenience of the parties". If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on some bodies land, which is the crux and nucleus of the right of easement.

IN THE HIGH COURT OF MADRAS

S.A. No. 302 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 411 of 2022

 Nallammal and Ors.  Vs. Sengoda Gounder and Ors.

Hon'ble Judges/Coram:

R.M.T. Teekaa Raman, J.

Decided On: 25.03.2022

Citation: MANU/TN/2258/2022

Print Page

Whether recital in power of attorney that immovable property should not be sold below specific amount will invalidate sale deed?

 In other words, proceeding on the basis that the second defendant had a duty to not sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not sell below Rs.55,000/-, when the second defendant sold the property for Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of the power of attorney will make it clear that any restriction on the price is conspicuous by its absence in the power of attorney.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

Print Page

Whether lease deed is to be registered in case of tenancy-at-will even though rent was payable yearly?

 In Mt. Aishan v. Municipal

Committee Lahore 92 Ind.Cas. 526 Campbell

J. held that a mere recital of an annual

rate of rent did not constitute the lease,

a lease reserving a yearly rent within the

meaning of Section 17, Registration Act.

The lease in that case was determinable at

any time at the will of the landlord. In

the present case after the expiry of one

year for which the lease was granted, this

lease too was determinable at the end of

Jeth, Sambat 1985. In this aspect the

present lease constituted no more than a

tenancy-at-will after the expiry of the

first year and so appears to be covered by

the decision of Campbell, J. referred to

above. There is considerable body of

authority for the proposition that where

there is a tenancy-at-will created even

though the rent is fixed and is payable

annually, the document is not subject to

compulsory registration. Reference in this

connection may be made to Muhammad Masam

Khan v. Mt. Bakhtawar (1895) 70 P.R. 1895

where a Division Bench held on a

construction of the document before them

that only those leases must be registered

which are in terms for a period exceeding

one year, a lease reserving a yearly rent,

and containing no other provision

establishing a tenancy-at-will, being

presumably a lease from year to year.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVI L APPEA L NO. 2617 O F 2020

SIRI CHAND (DECEASED) THR. LRS. Vs SURINDER SINGH .

Print Page

How to ascertain whether a transaction is lease or mortgage?

The guidelines for deciding - whether a transaction is a lease or a mortgage contemplate that the name given to the document is not conclusive. The question has to be decided with reference to the predominant intention of the parties as gathered from the recitals and the terms of the documents and the surrounding circumstances including conduct of the parties. In the case of a mortgage, there is a transfer of interest to secure repayment of debt and in the case of a lease, there is a transfer of a right to enjoy the property [See: T.P. Act by Mulla - 9th Edn. Page 621]. In the case of Fuzhakkal Kuttappu v. C. Bhargavi and Ors.MANU/SC/0366/1976 : [1977]1SCR696 , it has been observed that the nomenclature given to a document by the writer or even by the parties is not always conclusive. In construing a document, it is necessary to find out the intention of the parties executing such document. Such intention has to be gathered from the recital, the terms in the document and from surrounding circumstances. When there is a document of a composite character disclosing features of mortgage and lease, the Court will have to find out the pre-dominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction. In that case, it was further observed that the mortgages are not always simple, English, usufructuary as defined in T.P. Act. They may be anomalous. Even so, the essential feature of a mortgage, which is not there in a lease, is that the property transferred is a security for repayment of a debt in a mortgage whereas in a lease, it is transfer of a right to enjoy the property. In the instant case, the suit property is a shop; the transferee was put in possession as he was to carry on his business; however, he had no power to lease or sell; no rate of interest was fixed; there is nothing to indicate as to how Rs. 16,200/- was to be appropriated. In the present matter there is no evidence to show that Ex.P5 was executed as security for the alleged loan. As slated above, the tenancy of the respondent continued even after 1969 and in the above circumstances the High Court was right in holding that Ex.P5 was a device to defeat the said Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4122 of 1999

Decided On: 22.07.2004

Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust

Vs. S.K. Viswanatha Setty

Print Page

Whether document would be admissible on basis of recital made in it or on basis of pleadings raised by parties?

Smt. Rashmi Pandit, learned Deputy Government Advocate for the State, however submitted that admissibility of the document would depend upon the recitals made in the document and not on basis of the pleadings made by one party and denied by the other.

Article 23 of Schedule-IA of the Indian Stamp Act refers to conveyance but with an added explanation it says that whenever there is an agreement to sell immovable property and there is a recital in the document that possession has been delivered to the proposed purchaser then the document would be deemed to be a conveyance and the stamp duty at the rate of 7.5% will have to be paid.

A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

W.P. No. 6464/2008

Decided On: 22.01.2010

 Mansingh  Vs. Rameshwar

Hon'ble Judges/Coram:

R.S. Garg and Prakash Shrivastava, JJ.

Print Page

What are necessary conditions for drawing presumption U/S 90 of Evidence Act?

 This Court in Paramesh Sarmah & Ors. Vs. Islamali & Ors. (supra), held in para-9 as under:

"9. The condition on which the execution of a document may presume for:-

'(1) That it must have been existed for 30 years or more; (2) It must be produced in court from proper custody. (3) The document must be in appearance free from suspicion and doubt; (4) It must be in a handwriting of a person and should not be anonymous. Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of consideration, legal necessity, etc., may be presumed under S. 90...................."

23. In Bipin Ch. Kalita Vs. Sarama Kalita & Ors. (supra), this court in para-21 held as under:

"The gravamen of the authorities referred to above, is that the presumption comprehend in Section 90 of the Act, is relatable to the writings, execution and the attestation of the document, the contents thereof, being subject to proof in accordance with law. Unerringly, the approach of a court in the matter of presumption under Section 90 of the Act has to be essentially to effectuate the purpose thereof and not to render it nugatory. Though, a court is endowed with a discretion to draw a presumption as enumerated in the section, the exercise thereof, has to be informed with objectivity to further the legislative intendment. Unless, the attending facts and circumstances on the face of the document renders its existence, execution and attestation impossible, a rebuttable presumption is raised in favour of the genuineness and authenticity thereof, casting a burden on the other side to establish the contrary."

IN THE HIGH COURT OF GAUHATI

RSA 107/2014

Decided On: 18.07.2018

 Nepurjan Bibi Choudhury Vs. Musabbir Ali Choudhury and Ors.

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2018 Gauhati 151

Print Page

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

Print Page

Whether conditional gifts of immovable property can be cancelled by donor?

Gift means to transfer certain existing moveable or
immoveable property voluntarily and without consideration by
one person called the donor to another called the donee and
accepted by or on behalf of the donee as held by the Supreme
Court in Naramadaben Maganlal Thakker Vs. Pranivandas

Maganlal Thakker and Others1. As further held by this Court
in Naramadaben Maganlal Thakker (supra) “It would be clear
that the execution of a registered gift deed, acceptance of the gift
and delivery of the property together make the gift complete.
Thereafter, the donor is divested of his title and the donee
becomes absolute owner of the property.”
15. A conditional gift with no recital of acceptance and no
evidence in proof of acceptance, where possession remains with
the donor as long as he is alive, does not become complete
during lifetime of the donor. When a gift is incomplete and title
remains with the donor the deed of gift might be cancelled.

18. We are in agreement with the decision of this Court in
Reninkuntla Rajamma (supra) that there is no provision in law
that ownership in property cannot be gifted without transfer of
possession of such property. However, the conditions precedent
of a gift as defined in Section 122 of the Transfer of Property Act
must be satisfied. A gift is transfer of property without
consideration. Moreover, a conditional gift only becomes
complete on compliance of the conditions in the deed.
19. In the instant case, admittedly, the deed of transfer was
executed for consideration and was in any case conditional
subject to the condition that the donee would look after the
petitioner and her husband and subject to the condition that the
gift would take effect after the death of the donor. We are thus
constrained to hold that there was no completed gift of the
property in question by the appellant to the respondent and the
appellant was within her right in cancelling the deed. The
judgment and order of the High Court cannot, therefore, be

sustained.
REPORTABLE
THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10785 OF 2018

S. SAROJINI AMMA Vs  VELAYUDHAN PILLAI SREEKUMAR 

Dated:OCTOBER 26, 2018
Indira Banerjee, J.
Citation: (2019) 11 SCC 391.

Print Page

Whether issuance of notice terminating tenancy can be proved even if office copy of notice is not proved?

The learned counsel for Petitioner has vehemently submitted that in the pending proceedings before the Additional Tahsildar, the Petitioner had filed an application seeking directions to the non-applicant deceased Maruti to produce on record the original notice issued by the Petitioner for termination of tenancy and despite the order passed by the Additional Tahsildar, the non-applicant deceased Maruti had failed to produce the said notice on record. The learned counsel submits that the said order came to be confirmed even by the Tribunal when challenged by the non-applicant during the pendency of the said proceedings before the Additional Tahsildar. The learned counsel submits that therefore, the Additional Tahsildar has rightly placed reliance on the postal acknowledgment receipt produced on record. I do not find any substance in these submissions for the reason that, if such notice is not produced despite the directions given, the Petitioner was at liberty to lead secondary evidence to prove the contents of the notice by placing on record the office copy of the notice. Mere production of postal acknowledgment receipt on record cannot be construed as a due compliance of Section 19(2) first proviso. It was essential for the Petitioner to establish that six months notice in writing given to the tenant for termination of tenancy and also to prove the grounds of such termination as incorporated in the said notice.

13. In the case of Samba Motiram Alone v. Tukaram Mahadeo Chandakar (supra) relied upon by the learned counsel for Respondent, in paragraphs 12, 13 and 14 of the order, this Court has made the following observations:

"12. Mr. Ghate for the respondent contended that this was a new point being taken up now in the petition. No objection to the validity of the notices had been raised by the petitioner in the trial Court. It is true, in the trial Court, no such contention was taken. The validity of the notice as a proper notice terminating the tenancy, was the very basis on which the Tahsildar could not under section 28(1) of the Tenancy Act, and, therefore, it was for the Tahsildar to decide, irrespective of whether an objection was taken or not by the tenant, whether the tenancy had been properly terminated on a valid notice. As observed earlier, the Naib Tahsildar, Rajura did actually notice this point and he did hold that the notices were not valid and the tenancies were not properly terminated, though he again committed an error by passing a conditional order of possession. From the revision petition of the petitioner to the Revenue Tribunal, it does appear that this ground was specifically taken as ground No. (iv) in the said revision application to the Maharashtra Revenue Tribunal, but it appears the Revenue Tribunal has not taken cognizance of this point. This ground has also been specifically taken in the present petition as ground No. (iv). In fact a proper termination of the tenancy by a proper notice under section 19(2)(a)(i) of the Tenancy Act, read with the proviso below section 19(2) of the Tenancy Act would be the very basis of an action under section 28(1) of the Tenancy Act and an invalidity of such a notice would go to the rood of the whole matter and can be considered properly even in a writ petition.

13. Mr. Ghate then contended that if the notices were held to be not valid notices terminating the tenancies of the petitioner, then the case should be remanded to the trial Court. It was urged that no explanation in this respect had been got from the respondent-landlord in the trial Court, because no objections to the validity of the notices were taken in the trial Court. If this question is to be enquired into, Mr. Ghate contends that it would be necessary to get the explanation of the respondent landlord as to what he meant by saying in the notices that legal proceedings would be taken against the tenant. Therefore, Mr. Ghate requested that in that case would be necessary to remand the case to the trial Court. It is not possible to even accept this contention of Mr. Ghate. The validity of the notices terminating the tenancy has to be determined by the Court upon a proper construction of the recitals of the notices themselves, and not upon the particular manner in which the landlord chooses to interpret those recitals.

14. In the view taken by me, this writ petition will have to be allowed. The orders passed by all the Revenue Courts below are hereby quashed and instead it shall be ordered that the application of the landlord-respondent for possession filed in the Court of the Tahsildar, Rajura under section 28 read with section 19 of the Tenancy Act, shall stand rejected. The rule is made absolute with costs."

14. In the instant case, even the draft or office copy of the notice is not produced on record leave apart the grounds incorporated therein in compliance with the provisions of Section 19(2) of the Tenancy Act, 1950. The learned Member or the Tribunal has therefore, rightly held that non-compliance of the provisions of Section 19(2) of the Tenancy Act, 1950 is fatal.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1743 of 1993

Decided On: 22.12.2017

Dattatraya  Vs. Maruti and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2018(4) MHLJ 41

Print Page

How to ascertain that a document is mortgage by conditional sale or sale with condition to repurchase?

 The recitals reveal no reference to any loan taken or mortgage created with regard to any immovable property as security for such loan, much less to discharge any debt. It does not evince the creation of a debtor and creditor relationship. On the contrary, the recitals are specific that the vendor was in need of money to run the vehicle purchased by him on hire, and was selling the shop to raise money for the purpose. The suit for redemption was also filed beyond the period of 5 years. Significantly, the first appellate court observed that the recitals indicated that it was a sale deed, but concluded that it was a mortgage by conditional sale, only because the right to redemption was incorporated in the same document, which was but only one of the factors amongst others, to determine the true nature of the document.

9. In Tamboli Ramanlal Motilal (Dead) by L.Rs. v. Ghanchi Chimanlal Keshavlal (Dead) by L.Rs. and Anr. MANU/SC/0229/1992 : 1993 Supp. (1) SCC 295, the question was similar with regard to the nature of the document, in absence of any intention expressed with regard to creation of a debtor and creditor relationship. Holding that the document was not a mortgage by conditional sale but sale with an option to repurchase, it was held:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1300 of 2009

Decided On: 24.10.2017

 Suraj Narain Kapoor and Ors. Vs. Pradeep Kumar and Ors.

Hon'ble Judges/Coram:

Ranjan Gogoi and Navin Sinha, JJ.

Citation:(2017) 16 SCC 487

Print Page

Whether party to deed can challenge recitals of deed?

 The implications of a statement made in a deed upon the party who made the same has been considered by the privy council in the case of Martin Cashin v. Peter J. Cashin, MANU/PR/0080/1938 : AIR 1938 Privy Council 103 and it has been ruled as follows:-

"..........In a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it........"

(Emphasis supplied)

13. In the case of Lachman Lal v. Munshi Mahton, MANU/BH/0225/1933 : AIR 1933 Pat 708, this Court has also considered the effect of a recital made in a deed in view of Section 115 Evidence Act has held as follows:--

"........There can be no dispute as to what the law is on this point, and it was settled as far back as 1850 when the case of Stroughill v. Buck (5) was decided. Pateson, J., in that case stated the law in these terms:

"When a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument."

14. In this regard, it would also be fruitful to notice the general effect of recital in a deed as mentioned in Halsbury's law of England, IV edition, Vol. 13, para-57 as follows:

"The General Effect:-- By executing a deed in accordance with all the requirements for such execution, the party whose act and deed it is becomes, as a general rule, conclusively bound by what he is stated in the deed to be effecting, undertaking or permitting. He is, in general, so bound even though another party has not executed the deed, or he has himself executed it in a false name. He is, as a rule, estopped from averring and proving by extrinsic evidence that the contents of the deed did not in truth express his intentions or did not correctly express them, or that there are reasons why he should not be obliged to give effect to the duty. This is equally the case whether the deed is expressed to operate as a conveyance of property or as a contract or otherwise....................................

But to all these general principles there are exceptions, cases, where the deed may be a nullity or may be avoided or corrected".

15. The concept of estoppel by deed has also been dealt with in paragraph-954 Volume 16 Halsbury's Law of England IV edition, as follows:

"....Estoppel by deed. Where there is a statement of fact in a deed made between the parties and verified by their seals, an estoppel results, and is called "estoppel by deed". If upon the true construction of the deed the statement is that of both or all the parties, the estoppel is binding on each party; if otherwise, it is only binding on the party making it..."

16. As aforementioned there is no relief by the plaintiff in the suit to avoid the deed (Ext. B) nor there is relief that the recital in the said deed requires correction.

17. The said deed (Ext. B) was admittedly executed by the plaintiff along with other co-sharers accepting the fact of partition of the joint family properties. The said deed did not include the suit property of village-Meharpur. The plaintiff has come out with the case that a fraudulent recital was got in the said deed regarding the suit property being the self-acquired property of Fulchand Rai and Chandramani Rai. But even if the said allegation of the plaintiff is accepted, there is no pleading or evidence alliunde that the plaintiff and the other co-sharers knowingly and purposely left out the suit property from partition and therefore it was not made subject-matter of partition. The conspicuous absence of such a case by the plaintiff substantially dents the case of fraud as endeavored to be made out. As such, in view of the principles in this regard as mentioned above, there cannot be escape for the plaintiff from the binding effect of the recitals including the disputed recital in the deed (Ext. B) in question.

IN THE HIGH COURT OF PATNA

Second Appeal No. 197 of 2013

Decided On: 01.07.2017

 Punam Devi and Ors. Vs. Jai Narayan Rai and Ors.

Hon'ble Judges/Coram:

Vijayendra Nath, J.

Citation: AIR 2017 Patna 175

Print Page

Whether a person can be held bound by recitals of deed even if he has signed said deed without reading it?

Their Lordships wish to add that in a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it. 

BEFORE THE PRIVY COUNCIL

Privy Council Appeal No. 16 of 1937

Decided On: 13.01.1938

Martin Cashin and others  Vs. Peter J. Cashin

Hon'ble Judges/Coram:

Lords Atkin, Thankerton, Bussell of Killowen, Wright and Maugham

Citation:AIR 1938 Privy Council 103

Print Page

Whether recital as to boundaries in sale deed of adjacent land is admissible in evidence?

 Section 11(2) of the India Evidence Act, however, says that a fact or facts which may not be relevant, may make the existence or non-existence of a fact or facts highly probable or improbable.

270. Thus it is concluded that three sale deeds Paper No. 160-Ga, 161-Ga and 162-Ga though are not admissible in evidence as the document of proof of ownership but recital of boundaries therein are of some substance and relevance for the limited purpose of making probable the existence of "Roll Wali Dharmshala" in Mohalla Govind deo Ji, when read all other evidences on record.

271. This fact i.e. the recital of boundaries therein, therefore, becomes relevant under Section 11 read with Section 13 of the Indian Evidence Act.

IN THE HIGH COURT OF ALLAHABAD

First Appeal Nos. 55 of 2008, 448 and 472 of 2007

Decided On: 06.03.2017

Radha Sharan Dubey and Ors. Vs. Ram Niwas and Ors.

Print Page

Whether plaint can be rejected if allegations in plaint are at variance with recitals in document filed along with plaint?

Order 7, Rule 11, of the Civil Procedure Code provides that, where the suit appears from the statement in the plaint to be barred by any law, the plaint may be rejected and the contention of the learned Counsel is that the learned District Munsif ought to have held on the pleadings that there was a doubt about the actual date on which the promissory note was executed and should have relegated the question of limitation to be decided during the trial and that he was wrong in looking into the promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi at that stage. The question whether the recitals made in the promissory note, which was admittedly filed by the petitioner along with the plaint, should be treated as part of the statement in the plaint, is not free from difficulty ; and it-does not appear that there is any direct decision on this point. One thing, however, is clear and it is that a document which is referred to in, forms the basis of and is 'filed along with the plaint should be treated as part of the plaint. It must be borne in mind that Order 7, Rule 14 (1) stipulates that the plaintiff shall produce in Court the document upon which he sues, when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. In my view, it would be artificial to divorce the said document from the plaint and to contend that the said document which is admittedly filed along with and forms the basis of the plaint should not be looked into by the Court and should not be regarded as part of the plaint while checking the plaint before filing the suit. Where the allegations in the plaint are at variance with the material recitals in the document which form the basis of the suit, it would be open to the Court to return the plaint for rectification; and in a case of this kind it appears to me clear that the Court would be perfectly justified in treating the recitals in such documents as part of the statement in the plaint for purposes of rejection under Order 7, Rule 11 of the Civil Procedure Code.

4. In this particular instance, the suit filed on 14th August, 1967 on the basis of the suit promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi (corresponding to nth August, 1964) is clearly barred by time; and the only question for consideration is whether the lower Court was right in basing its rejection on the suit promissory note when the plaint has given two different dates and when the suit is not barred if the English date given in the plaint is acted upon. It is plain that a fraud is sought to be played by the plaintiff on the Court by deliberately giving the wrong English date in the plaint; and it appears to me clear that he should not be permitted to turn round and blame the Court for not adhering to Order 7, Rule 11, Civil Procedure Code, strictly to the letter. In cases of this kind it is perfectly open to the Court to rely upon the date given in the document which is admittedly produced along with the plaint and referred to in the schedule, especially when the said date is also referred to in the body of the plaint along with the wrong date. There is absolutely no material to warrant interference in version. The rejection of the plaint is proper.

IN THE HIGH COURT OF MADRAS

Decided On: 03.03.1969

 Nithayya Thevar Vs. Subramanian Ambalakarar

Hon'ble Judges/Coram:
Ganesan, J.

Citation:1970(1) MLJ 400.

Print Page

Whether burden of proof to prove legal necessity is on purchaser of property?

There is no debate before us that the impugned sale can be upheld if it is for legal necessity and not otherwise. It is admitted position that burden in this respect lies on the purchasers i.e., defendants who are the respondents before us.
Accordingly, We record our findings on the points for determination framed supra. The material on record does not show any inquiry conducted by the respondents before us about the legal necessity felt by Trimbakrao for the sale of kh. No. 10 ad-measuring 20.69 acres of mouza Kheda, Tah. Warora Distr. Chandrapur on 20.10.1951 vide sale-deed at Ex. 44. Such an inquiry into alleged legal necessity should have been prior to the obtaining the sale-deed Ex. 44 and evidence about it can not be adduced for the first time in a suit filed by the appellants' vide Special Civil Suit No. 33 of 1971. It also follows that here the sale of kh. No. 10 is not proved to be of an agricultural land which could not have been cultivated profitably or then to avoid any legislation. In any case, such a sale in present facts can not be construed as one for legal necessity. The burden to prove the existence of the legal necessity always continued on the purchaser respondents,
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 28/1991 in First Appeal No. 133/1976

Decided On: 31.03.2017

 Shrikant and Ors. Vs. Natthu Maroti Shivarkar and Ors.

Hon'ble Judges/Coram:
B.P. Dharmadhikari and Swapna Joshi, JJ.
Citation 2017(4) MHLJ 591

Print Page

What is importance of recitals while considering legal necessity for transfer of property?

Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered inter. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession."

 Judgment relied upon by Shri Parchure, learned counsel and reported at MANU/SC/0388/1997 : (1997) 9 SCC 701 (Sunder Das and others.vrs. Gajananrao and others) shows that alienator Karta joined the suit by his son filed after eleven and half years to set aside the alienation on the ground of absence of legal necessity. In the mean while, purchaser had spent huge amount to effect substantial construction. Recitals in sale deed recorded that it was for legal necessity and seller a upper division clerk in civil Court was well aware of the Court proceedings. Plaintiffs did not lead evidence to rebut the fact stated in recital. Evidence on record demonstrated that house sold was dilapidated and dead burden to family. Seller father (karta) was also in debts and not having any vices or immoral conduct. Thus in these facts, suit was held to be instituted to extort more money from the purchaser and dismissed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 28/1991 in First Appeal No. 133/1976

Decided On: 31.03.2017

 Shrikant and Ors. Vs. Natthu Maroti Shivarkar and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari and Swapna Joshi, JJ.

Citation 2017(4) MHLJ 591

Print Page

Whether recitals made in sale deed will prevail over averments made in objection petition?

In re : whether sale was for legal necessity, and thus binding :

83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, defendant No.1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his ‘personal necessity’. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a consideration of Rs.2000 in view of his personal necessity. The sale was made after taking permission from the Deputy Collector Division, Distt. West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment made in the objection petition. Even otherwise under the Mohammedan Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity to sell the property and bind shares of others. It is not mentioned in sale deed that Hamid Ali Khan had sold for any legal necessity or for the benefit of the entire estate. The recital in sale deed has the evidentiary value and Bala Mallaiah and his successors are bound by what has been mentioned therein. Thus, no case is made out on the basis of the aforesaid submission also to make an interference.

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.
Dated: 21 MARCH 2017

Print Page

What is distinction between defeasance clause and repugnant clause ?

A defeasance clause is a clause which imposes a condition upon the fulfillment of which a deed or other instrument is defeated or made void. The distinction between a defeasance clause and a repugnant clause is that where the intention of the donor is to maintain the absolute estate conferred on the donee, but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void, but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative

IN THE HIGH COURT OF KERALA

R.S.A. No. 626 of 2013

Decided On: 01.04.2016

 Sarojini Vs. Radha and Ors.

Hon'ble Judges/Coram:

P.B. Suresh Kumar, J.

Citation: AIR 2017(NOC) 547 Ker

Print Page

Whether it is permissible to lead evidence contrary to contents of rent note?

Learned counsel for the non-petitioner No. I has supported the impugned order. A persual of the rent note eloquently proves that the suit shop was taken on rent by Lalit Kumar alone. He has stated the fact that he is the proprietor of the firm M/s. Pankaj Machinery Mart because this fact has been mentioned by him below his name. The rent note was executed by him alone. The allegations made by the defendant that Lalit Kumar in fact negotiated the shop on rent for the business of the Joint Hindu Family as stated above, though being the eldest, rent note was executed by him. This allegation runs counter to the recitals made in the rent note executed by non-petitioner no. 2 defendant. The petitioners cannot be allowed to lead evidence contrary to the contents of the rent note. Rent can be paid by any person on behalf of the defendant and if the petitioners or any of them paid rent to the plaintiff in respect of the suit shop, it hardly proves that the petitioners are the tenants of the plaintiff. It can only be treated that they paid rent on behalf of Lalit Kumar.
IN THE HIGH COURT OF RAJASTHAN

Civ. Revn. Petn. No. 181 of 1998

Decided On: 20.04.1998

Bhupal Singh Vs.  Bhagwati Prasad and Ors.

Hon'ble Judges/Coram:
P.C. Jain, J.

Citation:AIR 1999 Raj 41

Print Page

Whether party can plead that no consideration was paid contrary to recital of sale deed?

The main question for determination in this appeal is whether title passed, on the mere execution and registration of the sale-deed in question, or, the intention of the parties was that title would not pass until the full consideration was paid. This question has been considered by this Court in various cases and it is now well-settled that the intention is to be gathered from the sale-deed itself; ' RASIKANANDA MALLICK v. GANGADHAR PANDA' 1 Cut L T 1; 'RADHAMOHAN THAKUR v. BIPIN BEHARI MITRA' 17 Pat 318; 'MD. MURTAZA v. ABDXJL RAHMAN' 27 Pat 122 and 'MOTILAL SAHU V. UGRAH NARAIN SAHU MANU/BH/0071/1950. It has also been laid down in the second case ILR 17 Pat 318 and in the third 27 Pat 122, that though the sale-deed may recite that the consideration has been paid, there is nothing to prevent the parties from adducing evidence to show that the recital is untrue and that in fact the consideration was not paid.

IN THE HIGH COURT OF PATNA

A.F.A.D. No. 1961 of 1948

Decided On: 26.09.1951

Panchoo Sahu

Vs.

Janki Mandar and Ors.

Hon'ble Judges/Coram:

Pandit Lakshami Kant Jha, C.J. and Chatterji, J.

Citation: AIR 1960 Patna 268

Print Page