Supreme Court: Adoption By Widow Would Relate Back To Date Of Husband's Death, gift deed executed by widow will be held null and void

 It is the said finding of the trial Court that was set aside by the High Court in the first appeal with respect to the alienation under the gift deed dated 27.08.2008. A careful scanning of the impugned common judgment of the High Court would reveal that the sound reasoning of the trial Court in regard to this issue was interfered with and set aside without detailed discussion and at the same time without providing any good and sustainable reason therefor. It appears that the High Court was carried away by the fact that the gift deed is a registered one. We have already taken note of the fact that in order to be valid, acceptance of the gift is a pre-requisite. When the very case of one of the donees of the gift viz., the Defendant No. 4 that the property was in the possession of the donor herself till her death itself would reveal that the properties were not delivered and in other words in the legal sense there was no acceptance. The fact that Defendant No. 4 himself depose before the Court that he was not aware of the fact as to in whose possession the gifted properties lie with, would justify the conclusions arrived at by the trial Court. True that the First Appellate Court will be having the power to reappreciate the entire evidence and to substitute any finding of the trial Court if it is legally required. At the same time, when once it is found that a sound reasoning given by a trial Court for returning a finding with respect to a definite issue the same cannot be likely interfered without giving appropriate sustainable reasons. The position with respect to the gift deed is discussed in detail by the trial Court and when it arrived at the conclusion that the pre-requisite for making the same valid was absent such a finding could be reversed only if it is found that the said finding was based on perverse precision of evidence. In the case on hand, the discussion as above would reveal that the pre-requisite to constitute a valid gift is lacking and the evidence discussed by the trial Court would support the said finding we do not find any reason for the Appellate Court to interfere with the same. The declaration that gift deed dated 27.08.2008 is null and void is made by the trial Court in the aforesaid circumstances and it is only as a necessary sequel that the trial Court held that the Appellant/Plaintiff is entitled to entire 'B' and 'C' Schedule properties as the sole legal heir of deceased Defendant No. 1. As noted hereinbefore, DW-1 herself in her written statement admitted the adoption of the Appellant/Plaintiff as her son and the registered adoption deed could fortify the same. When that be so the finding that the Appellant is entitled to the said properties being the sole legal heir of deceased Defendant No. 1 cannot be said to be faulty as it is the inevitable consequence of application for the 'Doctrine of Relation Back' and the ratio of the decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra).{Para 29}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

Read full Judgment here: Click here.

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Supreme Court: Sale Deed Executed After Adoption By Mother For Pre-Adoption Property Binding On Adopted Child

 Obviously, in the case on hand, the factum of adoption of the Appellant/the Plaintiff by Defendant No. 1 after the death of adoptive father, on 16.07.1994 is established by the Appellant/the Plaintiff and it is pertinent to note that the same was admitted by Defendant No. 1 as well, in her written statement. In such circumstances, in view of the 'Doctrine of Relation Back' and by applying the law laid down in Sripad Gajanan Suthankar's case (supra) relied on with agreement in Kasabai Tukaram Karvar's case (supra) the adoption by Defendant No. 1, the widow of Bhavakanna Shahpurkar, would relate back to the date of death of the adoptive father which is 04.03.1982 but then all lawful alienations made by Defendant No. 1 would be binding on the Appellant/Plaintiff. As held in Sripad Gajanan Suthankar's case (supra) in paragraph 11 his right to impeach previous alienations would depend upon the capacity of Defendant No. 1 who made the alienation as well as on the nature of the action of alienation. {Para 22}

23. The first among the alienations under challenge in the case on hand is the one where Defendant No. 1 effected sale of the properties covered by registered sale deed dated 13.12.2007 in respect of 'A' Schedule property in favour of Defendant Nos. 2 and 3. There is concurrency with respect to the said issue between the trial Court and the High Court. The Courts have held that Defendant No. 1 got absolute right to effect the sale of the property covered thereunder and that the sale was done in favour of Defendant Nos. 2 and 3 in accordance with the law. Admittedly, in regard to the sale, Defendant No. 1 executed the sale deed dated 13.12.2007 and she was not having a case that she had not received sale consideration. By applying the 'Doctrine of Relation Back' and the ratio of decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra) it can only be held that the Appellant/Plaintiff is bound by the said alienation. This is because of the cumulative effect of the compromise decree in OS No. 122 of 2009 followed by Ext.D14 and the allotment of share based on the same. In this context it is also relevant to note that the factum of execution of the sale deed is not disputed by the Appellant but his contention is only that Defendant No. 1 could not have sold the property without his consent and knowledge. Though the alienation was subsequent to his adoption by virtue of the fact that Defendant No. 1 got absolute right and title in regard to the property covered by the said sale deed dated 13.12.2007 and that a valid sale was effected following the procedures, the challenge of the Appellant against the said alienation of property by Defendant No. 1 in favour of Defendant Nos. 2 and 3 is not liable to be interfered with. We have no hesitation to hold that the concurrent findings of the trial Court and the High Court in regard to the said sale deed warrant no interference. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

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Supreme Court: The starting point of limitation to set aside or cancel an instrument, a contract or a decree on the ground of fraud is the date of knowledge of the alleged fraud

In Md. Noorul Hoda v. Bibi Raifunnisa and Ors.   MANU/SC/1414/1996 : (1996)7SCC767 , this Court held:

...There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word `person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.

{See also Sneh Gupta v. Devi Sarup and Ors.   MANU/SC/0238/2009 : (2009)6SCC194 }

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1573 of 2009.

Decided On: 06.03.2009

Abdul Rahim and Ors. Vs. SK. Abdul Zabar and Ors.

Hon'ble Judges/Coram:

S.B. Sinha, A.K. Ganguly and R.M. Lodha, JJ.

Author: S.B. Sinha, J.

Citation:  MANU/SC/0379/2009.AIR 2010 SC 211.

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Supreme Court: Under which circumstances limitation for setting aside sale deed will not commence inspite of its registration?

 We examine the plea of limitation raised by the Respondents. The Respondents' case is that the suit was filed on 11.05.2011, and in effect, the suit seeks to set aside the sale deed dated 16.04.2008 (Ex. A-5). The suit was filed beyond the limitation period and should have been dismissed. Limitation is a question of law and fact. The period of limitation and the time from which the period begins to run, depend on the Article in the Schedule appended to the Limitation Act of 1963. The case falls under "Part III - Suits Relating to Declarations". Article 58 reads thus:

{Para 15}

15.1. The words "when the right to sue first accrues" have been interpreted and held by this Court in Smt. Neelam Kumari and Anr. v. U.P. Financial Corporation MANU/UC/0123/2008 : AIR 2009 Utt 5. The starting point for the limitation in the case of setting aside sale deeds has two limbs: the date of execution and the date of knowledge. There is no difficulty in applying the period of limitation expiring three years from the date of execution, provided that the Appellant had knowledge of Ex. A-5 on the date of registration and the right to sue first accrued. The Respondents, in the circumstances of the case, failed to establish the Appellant's knowledge of the execution of Ex. A-5. In the final analysis, Ex. A-5 is held as without authority and void. The applicability of limitation has a different perspective. So, the starting point is when the right to sue first accrued to the Appellant. The admitted case of the Respondents is that the Appellant is a US citizen and she stayed abroad. Therefore, unless it is clearly established as a fact that the Appellant had knowledge of Ex. A-5, it cannot be inferred that the Appellant had contemporaneous knowledge of Ex. A-5 and the limitation started running from the date of execution of Ex. A-5. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6495 of 2023

Decided On: 09.07.2024

Thankamma George Vs. Lilly Thomas and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and S.V. Bhatti, JJ.

Author: S.V. Bhatti, J.

Citation: MANU/SC/0582/2024,2024 INSC 494.

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Punjab And Haryana HC: Sale deed executed by person having no title over it, such sale deed do not confer any title on purchaser and can be ignored even in collateral proceeding

  Firstly, the proprietors are not party to the decree dated 6.3.1986 or the subsequent sale deeds. The said sale deeds are without any title or interest in the suit property. The sale deeds have been executed by defendant No. 1 even though he had no title or interest to sell the same in favour of defendant Nos. 2 to 5. Since the sales are by incompetent person without having title in the suit property, such sale deed will not confer a valid title in favour of the purchasers. Since such sale deeds are without any title of the vendor, the same can be ignored even in collateral proceedings. This is what has been held by supreme Court in the case of Dhurandhar Prasad Singh v. Jai Parkash University and others, 2001(4) RCR(Civil) 280 : Judgments today 2001(6) SC 573, wherein the distinction between void and voidable order has been discussed in detail.  {Para 16}

 IN THE HIGH COURT OF PUNJAB AND HARYANA

R.S.A. No. 4041 of 2007

Decided On: 12.08.2009

Lajja Ram and Ors. Vs. Rati Chand and Ors.

Hon'ble Judges/Coram:

Hemant Gupta, J.

Citation: MANU/PH/2423/2009,2010(1) ICC 70, 2009(4) R.C.R(Civil) 598.

Read full Judgment here: Click here.

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Whether a person can resist execution of decree saying that he is subsequent transferee if he is in possession of immovable property but sale deed is not executed in his favour?

The learned Counsel for the respondent No. 2 sought to urge that the respondent No. 2 has been put in possession of the flat pursuant to the contract for sale deed 16-10-1990 by the respondent No. 1 and by virtue of Section 53-A of the Transfer of Property Act, he is entitled to the protection of his possession. The contention is only noted to be rejected. The appellant is a decree-holder in whose favour the decree for specific performance of the contract in respect of the said flat has been passed against respondent No. 1. He has levied execution of the said decree. Respondent No. 2 can successfully resist the execution of the decree only if he is able to establish his independent title over the property. Respondent No. 2 has not acquired any title nor is he a transferee within the meaning of Clause (b) of Section 19. He cannot resist the decree passed In favour of the appellant on the ground that he was put In possession by respondent No. 1 under the Agreement for Sale dated 16-10-1990. As a matter of fact, the agreement dated 16-10-1990 in favour of the respondent no, 2 Is of no legal value as It is subsequent to the contract that respondent No. 1 had entered Into with the appellant and in respect of which a decree for specific performance has been passed In favour of the appellant.

{Para 17}

18. One more aspect needs to be noticed before I conclude. The purchase contemplated under Clause (b) of Section 19 must satisfy four conditions : (1) that the transfer is for value; (2) that the payment of full value has been made: (3) that the purchase was done in good faith: and (4) that the purchase including payment of money was without the notice of the original contract. The agreement dated 16-10-1990 under which the respondent No. 2 claims to have purchased the said property shows that the respondent No. 1 agreed to sell the said property to the respondent No. 2 for a consideration of Rs. 2,80,000/-. 

19. The respondent No. 2 cannot be held that to be 'transferee'. He is only subsequent contractee. He has also not paid full value, lie is not covered by the exception carved out in Section 19(b).

 IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal No. 5/1998

Decided On: 18.08.2005

Sujata Sanzgiry Vs. Ankush R. Naik and Ors.

Hon'ble Judges/Coram:

R.M. Lodha, J.

Citation: 2005 AIR (Bombay) 404,2006(1) MHLJ 639, MANU/MH/0901/2005.

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Supreme Court: Sale Of Minor's Property By Guardian Can Be Avoided Only By Filing Suit To Set Aside Deed Within Period as mentioned Under Art.60 of Limitation Act

  We may notice one more judgment of this Court

relied on by the learned counsel for the appellants

that is G. Annamalai Pillai vs. District Revenue

Officer and others, (1993) 2 SCC 402. The question

which arose for consideration in the said case has

been noticed in paragraph 1 of the judgment in

following words:

“1. The short question for consideration in

this appeal is whether lease deed in dispute, which

was voidable in terms of Section 8(3) of the Hindu

Minority and Guardianship Act, 1956 (the Act) when

validly avoided, was effective from the date of the

lease deed so as to make the transaction void and

unenforceable from the very inception.” {Para 32}

33. The land in dispute was owned by one Janarthanan.

His father, Purushothaman executed a registered lease

deed in favour of appellant on 12.12.1971 on which

date the owner was minor. The appellant filed

application before Tehsildar to be registered as a

tenant which was contested by Janarthanan.

Janarthanan contended that his father has no right or

title to deal with land and lease by his father is in

contravention of Section 8 of Hindu Minority and

Guardianship Act, 1956. Tehsildar held that there was

no valid lease which order was confirmed by the High

Court against which judgment appeal was filed. In

paragraphs 5 and 6 following has been laid down:

“5. We have heard learned counsel for the

parties. We have been taken through the

orders of the Revenue authorities, judgment

of the learned Single Judge and of the

Division Bench of the High Court in writ

appeal. The Division Bench of the High

Court, in a lucid judgment, answered the

question — posed by us in the beginning —

in the affirmative and against the

appellant-Annamalai Pillai on the following

reasoning:

“We have already seen that clause (3) of

Section 8 of the Hindu Minority and

Guardianship Act, 1956, specifically makes

the transaction voidable. The lease

executed by the guardian in this case is

prohibited and in that sense it was

without any authority. On the legal

efficacy and the distinction between

valid, void and voidable agreements, we

find the following passage in Salmond on

Jurisprudence, Twelfth Edition at page

341:

‘… A valid agreement is one which is

fully operative in accordance with the

intent of the parties. A void agreement

is one which entirely fails to receive

legal recognition or sanction, the

declared will of the parties being

wholly destitute of legal efficacy. A

voidable agreement stands midway

between these two cases. It is not a

nullity, but its operation is

conditional and not absolute. By reason

of some defect in its origin it is

liable to be destroyed or cancelled at

the option of one of the parties to it.

On the exercise of this power the

agreement not only ceases to have any

efficacy, but is deemed to have been

void ab initio. The avoidance of it

relates back to the making of it. The

hypothetical or contingent efficacy

which has hitherto been attributed to

it wholly disappears, as if it had

never existed. In other words, a

voidable agreement is one which is void

or valid at the election of one of the

parties to it.’

This distinction has also been

judicially noticed in the Privy Council

judgment reported in Satgur Prasad v.

Harnarain Das and in the Division Bench

judgment in S.N.R. Sundara Rao and Sons,

Madurai v. CIT. The Division Bench held,

following the said Privy Council judgment as

follows:

‘When a person, who is entitled to

dissent from the alienation, does so, his

dissent is in relation to the transaction

as such and not merely to the possession

of the alienee on the date of such

dissent.

The effect of the evidence is,

therefore, to get rid of the transaction

with the result that in law it is as if

the transaction had never taken place.’

We have, therefore, no doubt that when the

fifth respondent avoided the lease executed

by his father, the fourth respondent, the

lease became void from its inception and no

statutory rights, could, therefore, accrue

in favour of the appellant herein.”

6. We agree with the reasoning and the

conclusions reached by the Division Bench

of the High Court and as such this appeal

has to be dismissed.”

34. Learned counsel for the appellants relying on the

above decision contends that sale by Balaraman when

has been avoided by release deed it became void from

the very beginning. There can be no quarrel to the

proposition laid down in G. Annamalai Pillai vs.

District Revenue Officer and others(supra). In the

present case there having been no repudiation of sale

deed on behalf of minor, the question of voidable

sale deed becoming void does not arise.

35. We are, thus, of the considered opinion that in

the present case it was necessary for the person

claiming through minor to bring an action within a

period of three years from the date of the death of

the minor to get sale deed executed by Balaraman set

aside. We, thus, conclude that the sale deeds

executed by Balaraman were not repudiated or avoided

within the period of limitation as prescribed by law.

Issue No.3 is answered accordingly.

36. In view of the foregoing discussions, we do not

find any merit in this appeal. The appeal is

dismissed accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1782 OF 2019

MURUGAN & ORS. Vs. KESAVA GOUNDER (DEAD)

THR. LRS. AND ORS.

Author: ASHOK BHUSHAN, J.

Dated: February 25, 2019.

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Whether the court can permit any party to prove certified copy of Sale deed as secondary evidence?

 Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the Appellant/Plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1, indisputably is the certified copy of sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Sub-section (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given Under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document Under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned Sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the Appellant/Plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1. {Para 29}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 14630 of 2015 

Decided On: 20.09.2023

Appaiya Vs. Andimuthu and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation:  MANU/SC/1034/2023.

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Can a defendant who is a stranger to the sale deed challenge it?

  In Lal Achal Ram v. Raja Kazim Hussain Khan (1905) 32 IA 113, the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. This decision has since been considered by various High Courts and a distinction has been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible grounds. This was also laid down in Kamini Kumar Deb v. Durga Charan Nag and Ors. AIR (1923) Cal. 521 and again in Saradindu Mukherjee v. S.M. Kunja Katnini Roy and Ors. MANU/WB/0159/1942 : AIR1942Cal514 . The Patna High Court in Jugal Kishore Tiwari and Anr. v. Umesh Chandra Tiwari and Ors. MANU/BH/0116/1973 : AIR1973Pat352 and the Orissa High Court in Sanatan Mohapatra and Ors. v. Hakim Mohammad Kazim Mohammad and Ors. MANU/OR/0061/1977 : AIR1977Ori194 have also taken the same view. {Para 19}

20. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.

IN THE SUPREME COURT OF INDIA

C.A. No. 1534 of 1999

Decided On: 17.03.1999

Vidhyadhar Vs. Manikrao and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and D.P. Wadhwa, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0172/1999

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Can the reference court grant enhanced compensation to a claimant relying on a sale deed mentioned in the award, even though the sale deed was not proved before the court?

 It is necessary to note that the evidence tendered by the claimants in these cases is extremely scanty. The claimants have merely stated about the crops fetched by the claimants from their agricultural lands. They have produced only two sale transactions of village Deulgaon-Mahi to show that one acre of land was sold @ Rs. 3,25,000/- per acre.  Apart from these documents, nothing has been produced by the claimants before the reference Court. However, the reference Court considered the transaction at serial number 11 in the award of the land acquisition officer, dated 15.06.2005 to hold that the transaction at serial number 11 fetched the market value @ Rs. 1,22,448/- per hectare. The reference Court was not justified in considering the sale transaction at serial number 11 in the award passed by the land acquisition officer on 15.06.2005 to grant enhanced compensation to the claimants at the rate ranging from Rs. 1,15,000/to Rs. 1,64,000/per hectare. The learned Counsel for the appellantVidarbha Irrigation Development Corporation has rightly relied on the decision of the Full Bench of this Court reported in 2007 (5) BCR 847 (State of Maharashtra v. Prashram Jagannath Aute), which had considered the decision of the Hon'ble Supreme Court reported in MANU/SC/0071/1988 : 1988 (3) SCC 751 (Chimanlal Hargovinddas v. Special Land Acquisition Officer) which laid down the principle that the reference Court cannot take into account the material relied upon by the land acquisition officer in his award unless the same material is produced and proved before the reference court as the reference Court under Section 18 of the Land Acquisition Act is not an appeal against an award passed by the land acquisition officer. In view of the well settled principle of law that the reference Court could not have relied upon the material relied upon by the land acquisition officer in his award, the reference Court in these cases could not have taken into account the transaction at serial number 11 in the award passed by the land acquisition officer dated 15.06.2005 when the saledeed or the extract of sale index of the transaction at serial number 11 of the award was not produced and proved by the claimants before the reference Court. {Para 7}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 589 and 590/2010 and Cross Objection No. 18 and 19/2010, 

Vidarbha Irrigation Development Corporation Vs.  Kamlaji Balaji Jadhav and Ors.

Hon'ble Judges/Coram:

Vasanti A. Naik, J.

Decided On: 07.10.2010

Citation: MANU/MH/1445/2010,2011(3)BomCR331, 2011(1)MhLj231

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Would Benami Prohibition Act hit the transaction if the sale deed was taken in the name of a few persons even though more persons contributed money?

 This takes me to consider the next question with regard to the benami transaction. The suit property was admittedly purchased by 11 persons by equally contributing towards consideration but sale deed was taken in the name of 5 persons only. It is therefore clear that those persons in whose favour the sale deed was executed had contributed towards consideration. It is not that plaintiffs alone paid the consideration but obtained the sale deed in defendants name. Essential ingredient of benami transaction is that the real owner must contribute the entire consideration. It was a simple case of obtaining the sale deed in the name of few though large members have contributed. Parties always intended that each one of the contributor would be joint owner to the equal extent. That is so evident from agreement Ex. 42. Further defendants had not raised a plea of benami at all in their pleadings. In the absence of such a plea being raised no issue in fact could arise. In a decision reported in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah MANU/SC/1161/1996 : Judgment Today 1996 (4) S.C. 725, Supreme Court holds that the question whether sale is benami or not is a question of fact. If it is question of fact then such a question cannot be raised for the first time in Second Appeal. Further if the grounds of appeal before the District Court are seen it would be clear that in those grounds of appeal such a plea was not at all raised. Learned Judge of the First Appellate Court therefore had erred in holding the transaction to be a benami transaction and dismissing the suit. {Para 11}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 448 of 1996

Decided On: 07.10.2009

Shrikant Gopalkrushna Tare and Ors.  Vs.  Vasant Nagorao Mahalley and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: MANU/MH/1151/2009,2010(1) ALLMR 114.

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Whether registration of a document by the power of attorney holder can be declared invalid if power of attorney is unregistered?

 As far as the decision in the case of Ashok Kumar (supra) of a coordinate bench of this Court, true it is that it has been held that if the document is presented for registration by a power of attorney holder, such a power of attorney must be registered one else the registration of the document at his instance would be void. However, this decision of the brother Judge can no longer be said to be laying down a correct proposition in view of the decision of the Supreme Court in the case of Rajni Tandon (supra). While reversing a decision of the Calcutta High Court on the lines similar to the one in the matter of Ashok Kumar (supra) it has been laid down in Rajni Tandon (supra) that registration of a document by a power of attorney holder is not invalid on the ground of absence of registration of the power of attorney. It, therefore, needs to be concluded that the decision in the matter of Ashok Kumar (supra) stood impliedly overruled by the decision in the matter of Rajni Tandon (supra). {Para 12}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

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Whether it is mandatory to attest the sale deed?

As regards the proof regarding sale-deed is concerned, as has been rightly pointed out by the lower courts, it is not a document which requires any attestation if one goes through the provisions of Section 54 of the Transfer of Property Act. Since Subhash and Ajay were the executants who had never disputed its execution and were not even called as witnesses by the appellants, no error can be found with the observation of the courts below in holding that since the plaintiff No. 1 was a person who had signed the sale-deed and was examined as a witness on behalf of the plaintiffs and had stated about execution of document and its registration, there was sufficient proof regarding its execution.

{Para 10}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: MANU/MH/0720/2022

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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.

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How to prove valid cancellation of power of attorney?

 This correspondence between the plaintiff and the second defendant, in our view, would be fatal to the plaintiff’s case that the plaintiff had cancelled the power of attorney.

59. While on cancellation, we may notice that the plaintiff, in his deposition, has stated that he had cancelled the power of attorney at Mehre and there itself was the Office of the Sub-Registrar located. He has admitted that he did not get the power of attorney cancelled at the Sub-Registrar Office. Even, more importantly, he has admitted to not having sent any notice of cancellation. The only evidence consists of a statement of PW1 that the first defendant was aware of the cancellation and the statement of PW6, who had said that the first defendant was also there on 02.02.1987, when on two papers a line was drawn to signify the cancellation. The Trial Court and also the appellate court have relied upon the DX sent by the plaintiff himself, which appears to undermine the evidence about the cancellation on 02.02.1987. The High Court should not have, at any rate, disturbed the said finding in a Second Appeal. In such circumstances, the conclusion is inevitable that the case of the plaintiff that power of attorney stood cancelled, in the manner done on 02.02.1987, cannot be accepted. At any rate, we find it difficult to accept the case of the plaintiff that the first defendant, who is the third party, could be attributed any knowledge of the surrender or the alleged cancellation on 02.02.1987, even assuming for a moment that we could lend credence to the plaintiff’s version in this regard that the second defendant surrendered the power of attorney. We need not pronounce on the question whether the power of attorney being registered, it could be cancelled only by a registered power of attorney. This we say as even in the absence of a registered cancellation of the power of attorney, there must be cancellation and it must further be brought to the notice of the third party at any rate as already noticed. Such a cancellation is not made out.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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Whether the owner of immovable property can challenge the execution of the sale deed if the sub-registrar fails to verify the original power of attorney at the time of registration of the document?

 The second defendant, according to the plaintiff, could not execute the sale deed in the absence of the original power of attorney, and the sub registrar was supposed to verify the aspect from the second defendant under Sections 32, 33 and 34 of the Registration Act. The sale deed was without authority. The second defendant ‘was not competent to transfer the possession’. The special power of attorney is deemed to have been cancelled in the eye of law since it was handed over to the plaintiff.

25. For reasons, which we have indicated, Section 32(c) read with Section 33 and Section 34(2)(c) are interrelated and they would have no application in regard to the document presented for registration by a power of attorney holder who is also the executant of the document. In other words, there is really no need for the production of the original power of attorney, when the document is presented for registration by the person standing in the shoes of the second defendant in this case as he would be covered by the provisions of Section 32(a) as he has executed the document though on the strength of the power of attorney. To make it even further clear, the inquiry contemplated under the Registration Act, cannot extend to question as to whether the person who executed the document in his capacity of the power of attorney holder of the principal, was indeed having a valid power of attorney or not to execute the document or not.

28. Thus, the aforesaid provision deals with situations in which the Registering Authority refuses the registration. If the registering Authority is satisfied about the identity of the person and that he admits the execution of the document, it may not be a part of the Registrar’s duty to enquire further. The registration by itself will not bring the curtains down on questions relating to title to the property. The very purport of the Law of Registration is to usher in and maintain a transparent system of maintaining documents relating to property rights. It puts the world on notice about certain transactions which are compulsorily registrable Section 17 interalia. The law also makes available facility of registering documents at the option of the person (Section 18).

29. Section 57 of the Act provides for keeping Books No. 1 and 2 and the Index relating to Book No.1 open for inspection to any person applying to inspect the same. Book No.1, it must be noticed, as provided in Section 51, is a register of non-testamentary documents relating to immovable property. Book No.2 is a record of reasons for refusal to register.

32. On an analysis of the provisions, we have no hesitation in rejecting the argument of the plaintiff that the non-production of the original power of attorney by the second defendant, was fatal to a valid registration being effected. The understanding of the Courts regarding Section 18A is also erroneous. Section 18A was enacted only to ensure that the copying process is hastened, as noticed from the Objects and Reasons. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

CIVIL APPEAL NO. 5797 OF 2009

28th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 94

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When the relief of declaration is not barred by limitation?

  Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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When a party should not seek declaration that sale deed is void?

  Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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Can the court declare the sale deed void on the grounds of want of consideration if the sale deed records that consideration was paid?

 Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

CIVIL APPEAL NOS. 6989-6992 OF 2021

22nd November 2021

Citation: 2021 ALL SCR (ONLINE) 678

Author: ABHAY S. OKA, J.

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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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