Madras HC: Sub- registrar should not insist for original document or non traceability certificate in case of lost document in every case for Property Transfer

 Adverting to the facts on hand, the document that is sought to be registered is a release deed executed by the sister in favour of the brother. The document recites that the property belonged to the father. The parties are not strangers to each other. They have produced registration copies of the antecedent documents which are registered in the very same office. Unless the Registrar has a doubt regarding the genuineness of the copies issued by his own office, insistence on production of originals is a superfluous exercise. As we had already stated, it is a common knowledge and accepted phenomena today that one cannot secure a certificate from a Government office without the price.{Para 10}

In such situation, driving executant of documents to obtain a non traceability certificate in case of lost document in every case, will result only in encouraging under hand dealings. When certified copies have been produced and it is not impossible for the Sub Registrar to have it verified with the original record that is available in his own office, insisting upon a non traceability certificate appears to be rather a wasteful exercise. Even in Punithavathy's case referred to supra, we have observed that the Registrars will not refuse registration particularly, when the parties to the documents are relatives and they take the risk of obtaining the document without examining the title. The copies of the documents have already been produced. The Sub Registrar could have verified the same with the original records in his office and register the instrument without dogmatically refusing registration. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

W.A.No.1160 of 2024

P.Pappu Vs  The Sub Registar,

CORAM :

 MR.JUSTICE R.SUBRAMANIAN

and

 MR.JUSTICE R.SAKTHIVEL

DATED : 27.09.2024.

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Supreme Court: Co-Owner Whose Share In Joint Property Remained Undetermined Cannot Transfer Entire Property

 The suit property which is undivided is left with the

co-owners to proceed in accordance with law to get their

shares determined and demarcated before making a

transfer. {Para 24}

25. The point for determination formulated in paragraph 12

above is accordingly answered and it is held that Brij

Mohan alone was not competent to transfer the entire

property without getting his share determined and

demarcated so as to bind the other co-owners.

Accordingly, the defendant-appellant S.K. Golam

Lalchand has rightly been restrained by the decree of

injunction in acting in derogation of the propriety rights

of the co-owners until and unless the partition takes

place.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4177 OF 2024

SK. GOLAM LALCHAND Vs NANDU LAL SHAW @ NAND LAL KESHRI @ NANDU LAL BAYES & ORS.

Author: PANKAJ MITHAL, J.

Citation: 2024 INSC 676.

Dated: SEPTEMBER 10, 2024. 

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Whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer ?

There is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right, title and interest of the donor passes to the donee upon execution, registration and acceptances thereof.

 The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.

In the light of the above, Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub- Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub- Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.

We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.

So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.

 IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

HARISH TANDON & KAUSIK CHANDA, JJ.

C.A.N 11623 OF 2017 IN F.A.T 661 OF 2017 

 Judgment On: 08.04.2021

Pabitra Kumar Maity Vs. Smt. Shyamali Manna & Ors

Harish Tandon, J.:

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Whether the Court can treat the partition of self-acquired property by a father as a family arrangement or gift to sons?

It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing' all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.

 But in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sale and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.

In view of our finding that Narayana Pillai dealt with his self-acquired properties under Exhibit A-1, the other parties to the document had no antecedent title. It could not be pretended that there was any bona fide dispute between Narayana Pillai and his children and grandchildren when he divided and gave his properties to them under Exhibit A-1. In Ram Charan Das v. Girija Nandini Devi MANU/SC/0358/1965 : [1965]3SCR841 , relied on by Sri Vedantachari, it is pointed out that it is not necessary, as would appear from the decision in Rangasami Gounden v Nachiappa Gounden (1919) I.L.R. 42 Mad. 523 : L.R. 46 IndAp 72: 36 M.L.J. 493, that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property and that all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground, as, say, affection. It is no doubt true that the children and grandchildren of Narayana Pillai had a claim to the affection of Narayana Pillai. But it could not on that ground be said that they had a claim or semblance of a claim against his self-acquired property. If the contention of Sri Vedantachari that even a semblance of a claim on some grounds such as affection is sufficient to support Exhibit A-1 as a family arrangement is accepted, it would lead to the result that every deed of gift by a father to his children or near relations could be treated as a family arrangement, though the other requisites of the family arrangement are absent. It is not possible to build an argument that Exhibit A-1 evidences a family arrangement solely on the stray observation in the above Supreme Court decision made in the course of a discussion whether a transaction which was a family settlement amounted to a transfer or creation of trust in the property. It is clear from the Supreme Court decision that the transaction in question in that case is a family arrangement entered into by the parties bona fide for the purpose of putting an end to the dispute among the family members. In the present case, neither the appellant nor the sixth respondent has stated that there were any disputes, or that any dispute was in contemplation which necessitated any family arrangement. In Jatru Pahan v. Ambikajit Prasad MANU/BH/0175/1957 : AIR 1957 Pat 570 , it has been held that the existence of a family dispute is not essential to the validity of a family arrangement, nor is the existence of a doubtful claim based on the allegation of an antecedent title essential for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family, or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property, but there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement, though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety. Again in Gangabai v. Punau Rajwa A.I.R. 1956 Nag. 261, it was held that where a family arrangement was merely a cloak for the transfer it could not be upheld. In Natesan v. Commissioner of Income Tax I.L.R. (1964) 1 Mad. 502, it is pointed out that a separate property of a coparcener cannot be fragmented into shares and disposed of by allotment to sharers under the guise of partition without the element of transfer of property. Even if the document Exhibit A-1 is styled as a family arrangement, it is really a gift by Narayana Pillai to the several members of his family. It is true the parties to the document get rights under it. But it is not by virtue of any antecedent title or bona fide claim. For the foregoing reasons, we see no reason to differ from the finding of the learned Second Additional Subordinate Judge that, though Exhibit A-1 purports to be a partition deed, it is really a gift deed by Narayana Pillai in favour of the members of his family.

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

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Supreme Court: Sub-lessee can not claim re-connection of electric supply if he fails to pay lease rent, maintenance charges, electricity charges

We have considered the rival contentions of the parties and we make it clear that we are not deciding this plea on merits. However, we have no doubt in our mind that the sub-lessee cannot claim that no amount is payable by it. It has not paid a single rupee to the Petitioner despite occupying the premises for more than 7 years. We cannot appreciate this conduct of the sub-lessee. In a multi-storeyed building of this nature there has to be provision for security guards, cleaning services, lift operators, parking attendants, etc. When the parties had agreed that Rs. 15/- per sq. ft. per month would be paid in the first year, we can presume that the sub-lessee must have satisfied itself that these are the approximate expenses to be incurred by the Petitioner for maintenance of the building. 

10. It was also urged on behalf of the Respondent No. 1 that there were some periods during which the electricity was disconnected and, therefore, it should not be asked to pay any charges for the said period. We are not in agreement with the said submission. The Respondent No. 1 did not pay a single rupee either on account of lease rent, maintenance charges, electricity charges or other charges and in such event, the Petitioner had no option but to disconnect the electricity. We are, therefore, of the view that the High Court clearly misdirected itself in directing restoration of the electricity without ensuring payment of some amount to the Petitioner.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Civil) No. 21341 of 2019

Decided On: 07.02.2020

 Infinity Infotech Parks Limited  Vs.  Shiva Jute Mills Private Limited and Ors.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2020) 3 SCC 262

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Whether burden of proof can be put on plaintiff to prove that there was no legal necessity for transfer of property?

Merely because the burden has been wrongly thrown on the defendants, it cannot be said that the learned First Appellate Court has committed any mistake in law because it has appreciated evidence from both the angles. Plaintiff could not have been asked to place any negative evidence on record to show that, there was no legal necessity. Parties are required to adduce positive evidence and therefore the statement on oath by the plaintiff that defendant No. 1 had no legal necessity to sell the lands was sufficient to hold it accordingly.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 58 of 1995

Decided On: 13.06.2019

Sangnath  Vs.  Babu and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MhLJ 930

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Whether a person can transfer right in property which he does not possess?

. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise.

41. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.

42. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4757-4760 of 2018 

Decided On: 03.05.2018

 Eureka Builders Vs. Gulabchand and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: 2018(8) SCC 67

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Whether a person has right to file appeal even though he has transferred suit property to third person?

 However, now by executing the sale-deed dated 27.3.2014 in favour of the some third party and admitting the said fact on record, it is clear that respondent No. 1 is no more the owner of the suit property and as can be seen from the recitals in the sale-deed, he is also no more in possession of the suit property as he has delivered the possession to third party on 27.3.2014. Thus, he has lost whatever interest he has in the suit property by executing the sale-deed and disposing of the suit property during the pendency of the proceedings which were initiated by him, for seeking leave to file appeal and for that purpose filing of application for condonation of delay in seeking such leave.

18. Thus, whatever right respondent No. 1 has in the suit property, having been voluntarily given up by him, in favour of some third person, there remains no more cause of action for him to file the appeal. He was considered as interested party, only because he was having sale-deed of the suit property in his favour and as he was claiming to be in possession of the suit property. Now he has already sold out the suit property and also parted with the possession of the suit property. Hence, the very basic foundation for him for seeking leave to file appeal no more remains and therefore, his application, either for condonation of delay or for seeking leave to appeal should have been dismissed by District Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 78 of 2016

Decided On: 25.07.2017

Rajkumar Singh Vs. Madhukar and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2017(6) MHLJ 744

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Supreme court :Immovable Property can not be transferred by general power of attorney,will,or agreement of sale

Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank MANU/DE/1304/2001 : 94 (2001) DLT 841 that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (C) No. 13917 of 2009

Decided On: 11.10.2011

Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr.

Hon'ble Judges/Coram:

R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, JJ.

Citation: (2012) 1 SCC 656

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Whether property can be transferred by agreement of sale?

So far as the plea relating to validity and enforceability of the agreement in question is concerned, it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the Maharashtra Co-operative Society Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale Under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words, there lies a distinction between an agreement to sell, and sale. The latter creates an interest in the land once accomplished as defined Under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid, the question of applicability of Section 48 did not arise. We, therefore, find no ground to disagree with this factual finding.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6069 of 2008

Decided On: 05.12.2017

Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam

Hon'ble Judges/Coram:
Abhay Manohar Sapre and Navin Sinha, JJ.
Citation: (2018) 2 SCC 82

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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

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When maintenance tribunal should declare transfer of property void?

The Petitioner is placing implicit reliance on the MOU

which does not have any probative value taking into consideration the

circumstances, in which it was executed.  The Act of 2007 confers on

the   maintenance   tribunal   express   power   to   declare   a   transfer   of

property void at the option of the transferor.  Under section 23 of the

said Act, it is to be presumed  that the intent of the legislature is to

empower the maintenance tribunal to pass effective and meaningful

orders including   consequential directions to give effect to the said

order.  The Act empowers  the tribunal to grant speedy  consequential

relief.  In the present case, although the interim relief was vacated,

the   Petitioner   and   Respondent   No.3   has   continued   to   harass   the

parents   and   therefore,   it   is   necessary   to   evict   the   Petitioner   and

Respondent No. 3 from the said bungalow i.e. i.e.  Girnar Bungalow,

Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi, District Pune. 

43 It is in these circumstances that the Writ Petition being

sans merits stands dismissed on the following terms:

(i) The Order passed by the Learned Sub­Divisional Officer,

Pune   in   Criminal/SR/2/2015   and   confirmed   by   the   learned

Additional Collector, Pune in Appeal No. 2 of 2016, Pune is

hereby  maintained.

(ii) The   Petitioner   and   the   Respondent   No.   3   to   pay   Rs.

2,000/­ each to the parents/Respondent Nos. 1 and 2 from 1st

August, 2017.  

(iii) The   Petitioner   and   the   Respondent   No.   3   are   further

directed     to   vacate   the   premises   of   bungalow   i.e.     Girnar

Bungalow, Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi,

District Pune within two weeks from the date of  passing of this

order.  

(iv) In the eventuality  that the Petitioner and Respondent No.

3  do not vacate the premises of above bungalow voluntarily the

Respondent Nos. 1 and 2 are at liberty to seek   police aid to

execute the present order.  

(v) The Petitioner to pay cost   of Rs. 25,000/­ towards the

cost of litigation to the Respondent Nos. 1 and 2 jointly within 2

weeks from today.   The amount to be deposited before the

Tribunal, Pune constituted under the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007, which shall not be

included in the maintenance amount.

(vi) The Tribunal at Pune is hereby directed to implement and

execute   the   Order   dated   20/2/2016   passed   by   the   Sub

Divisional   Officer,   Pune   in   Criminal/SR/2/2015   within   two

weeks from today.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL WRIT PETITION NO. 1791  OF 2016

Shri Santosh Surendra Patil.  V Shri Surendra Narasgopnda Patil & ors. ..

­­­

CORAM :  SMT.SADHANA S. JADHAV,J

     

 PRONOUNCED ON : JUNE 23, 2017

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Whether it is mandatory to register arbitration award if property more than Rs 100/ is transferred by said award?

This Court in Ratan Lal Sharma v. Purshottam
Harit (1974) 3 SCR 109 had to consider the question
of registration and the effect of non-registration of an
award. The appellant and the respondent therein had
set up a partnership business in the year 1962. The
parties, however, thereafter fell out. At the time the
disputes arose, the running business had a factory and
various movable and immovable properties. On 22-8-
1963, by agreement in writing, the parties referred “the
disputes of our concern” to the arbitration of two
persons and gave “the arbitrators full authority to
decide their dispute”. The arbitrators gave their award 
on 10-9-1963. The award made an exclusive allotment
of the partnership assets, including the factory, and
liabilities to the appellant. He was “absolutely entitled
to the same” in consideration of a sum of Rs 17,000
plus half the amount of the realisable debts of the
business to the respondent and of the appellant‟s
renouncement of the right to share in amounts already
received by the respondent. The award, stipulated that
the appellant should not run the factory unless he had
paid the awarded consideration to the respondent. The
arbitrators filed the award in the High Court on 8-11-
1963. On 10-9-1964, the respondent filed an
application for determining the validity of the
agreement and for setting aside the award. On 27-5-
1966, a learned Single Judge of the High Court
dismissed the application as time-barred. But he
declined the request of the appellant to proceed to
pronounce judgment according to the award because in
his view: (i) the award was void for uncertainty and
(ii) the award, which created rights in favour of the
appellant over immovable property worth over Rs 100
required registration and was unregistered. From this
part of the order, the appellant filed an appeal which
was dismissed as not maintainable by the Division
Bench of the High Court. The appellant preferred an
appeal by special leave to this Court against the
decision of the Single Judge declining to pronounce
judgment in accordance with the award. He also filed a
special leave petition against the judgment of the
Division Bench. In the appeal before this Court, the
appellant contended that the award was not void for
uncertainty and that the award sought to assign the
respondent‟s share in the partnership to the appellant
and so did not require registration and that under
Section 17 of the Arbitration Act, the court was bound
to pronounce judgment in accordance with the award
after it had dismissed the respondent‟s application for
setting it aside. It was held that the share of a partner
in the assets of the partnership, which had also
immovable properties, was movable property and the
assignment of the share did not require registration
under Section 17 of the Act. But the award in the
instant case, this Court observed, did not seek to assign
the share of the respondent to the appellant, either in 
express words or by necessary implication. The award
expressly makes an exclusive allotment of the
partnership assets including the factory and liabilities
to the appellant. It went further and made him
“absolutely entitled to the same”, in consideration of a
sum of Rs 17,000 plus half of the amount of Rs
1924.88 to the respondent and the appellant‟s
renouncement of the right to share in the amounts
already received by the respondent. In express words
the award purported to create rights in immovable
property worth above Rs 100 in favour of the
appellant. It would require accordingly registration
under Section 17 of the Act. As the award was
unregistered, the court could not look into it. The
award being inadmissible in evidence for want of
registration the court could not pronounce judgment in
accordance with it. Section 17 of the Arbitration Act
presupposes an award which could be validly looked
into by the court. The appellant could not successfully
invoke Section 17. The award is an inseparable tangle
of several clauses and cannot be enforced as to the part
not dealing with immovable property.
18. In the instant case also, it appears to us that the
award affects immovable property over Rs 100 and as
such was required to be registered. Shri Ashri,
however, contended that the fact that the award was
unregistered had not been taken before the learned
trial Judge. Indeed, this was not urged within 30 days
and the time for filing of application for setting aside
an award under Section 30 of the Arbitration Act, was
30 days and as such this not having been taken, the
appellant was not entitled to take this point at a later
stage. It is true that in the application for making the
award a rule of the court before the learned trial Judge
this point had not been taken.”
34. In another two decisions, the first one Siromani v.
Hemkumar and others, reported in AIR 1968 SC 1299 relating to
partition amongst the members of the joint family filed a document
deed of partition having transfer of share having value of one 
thousand attracts registration. In Kale v. Dy. Director of
Consolidation reported in (1976) 3 SCC 119, it has been held that
family arrangement would not attract registration and in likewise
manner mere memorandum prepared after the family arrangement
however, registration would be necessary if the terms of the family
arrangement are reduced into writing. Although, aforesaid decisions
are not on the theme of award filed by the arbitrator after conclusion
of the arbitration proceeding, but implied a condition that registration
is mandatory in all other circumstance save and except where it mere
happens to be memorandum of partition.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.592 of 2011

SRI RANJIT KUMAR SINGH, 
V
DR. DILIP KUMAR SINGH

CORAM:  MR. JUSTICE ADITYA KUMAR TRIVEDI

Date: 9-02-2016

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Whether irrevocable licence is created even if construction is made without consent of landlord?

The contention of the appellant that, in view of construction erected by the defendant and permitted on the suit plot, the defendant became irrevocable licensee in view of Section 60(b) of the Easement Act. This contention has been strongly opposed on the ground that the construction in question is neither permanent nor pucca nor such intention was expressed by the appellant (defendant) at any time. No permission was obtained from the landlord for erecting the construction on the suit plot. The Courts below have rightly rejected this contention of the defendant. Section 60(b) of the Indian Easement Act is not attracted in the facts and circumstances of the case because there is no evidence of a licence coupled with transfer of property in operation nor there is evidence to establish that the appellant had, acting upon licence, executed a work of permanent character and incurred expenses in execution of the construction of permanent character. In the absence of such evidence, no irrevocable licence was created in favour of the defendant. Substantial question of law at No. (iii) is thus answered in the negative against the appellant.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 79 of 1999

Decided On: 21.07.2010

 Haribhau  Rajaramji Rewasekar, 

Vs.

 Shri Swami Narayan Mandir.

Coram:

A.P. Bhangale, J.

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Supreme Court judgment on grant of injunction to restrain party to change nature of property during pendency of suit

The appellant had filed a Civil Suit No.541 of 2000 for possession of the suit scheduled property with an application under Order 39 Rules 1 and 2 CPC, seeking injunction restraining the respondent herein from alienating the suit property and putting up any construction thereon. The trial court on the interim application filed by the appellant granted an order of temporary injunction, as prayed for.

Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. The appeal is allowed.

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N Santosh Hegde, S.B. Sinha

           CASE NO.:
Appeal (civil)  6792 of 2004

Citation:2005(4) BomCR 408

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Whether person having life interest in property can transfer said property?

 In my view, since Godubai herself had life interest in the
suit property, after her demise, no party could claim any right, title
and interest even in respect of half of the suit property through
Godubai. A party who had life interest in the property cannot create

any right, title or interest of any nature and more particularly transfer
of the alleged ownership in favour of any third party. In my view, the
judgment of this Court dated 12th July, 1972 passed in the Second
Appeal No.1190 of 1964 is binding on the parties, including the
defendant, who is claiming through Godubai, who was admittedly the
appellant in the said Second Appeal No.1190 of 1964.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.197 OF 2013
WITH
CIVIL APPLICATION NO.526 OF 2013
IN
SECOND APPEAL NO.197 OF 2013
Shri Shaikh Mustafa Yasin 
V
 Shri Sharad Ganesh Tisgaonkar 
 CORAM : R.D. DHANUKA, J.

Dated : 13TH OCTOBER, 2016
Citation: 2016(6) ALLMR 880

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Whether mother is entitled to recover possession of flat transferred by her son on basis of bogus power of attorney?

The plaintiff is mother of defendant no.1. It was the case of
the plaintiff that she has purchased the suit flat i.e. bearing flat No.4
admeasuing 530 sq.ft. situated on the first floor in the apartment known
as 'Ganesh Apartment' constructed on Survey No.34/3/2/1 at Dhankavdi
by executing a Deed of Apartment and had obtained loan from Rajeshree
Shahu Sahakari Bank Ltd. The said document was registered with SubRegistrar
of Assurance. It was her case that she was in exclusive
possession of the suit flat. The defendant no.1 is her son and was serving
as a driver with Rajya Parivahan Mahamandal, Kopargaon. The plaintiff
is a widow and was working with Antar Bharati Balgram, Lonavala

and had to stay at Lonavala. The defendant no.1 after his marriage was
staying in the suit flat. It was the case of the plaintiff that on 10th
December 2004 when the plaintiff had been to Pune for paying the last
installment of the loan, she went to the suit flat and found the same
locked. The plaintiff came to know that the defendant no.1 was showing
the said flat to the public in order to sell the suit flat. The defendant no.1
had also issued a notice in the newspaper 'Daily Prabhat.'
4. The plaintiff came to know that on the basis of an alleged
power of attorney which was never entered into by the plaintiff in favour
of the defendant no.1, the defendant no.1 had alleged to have been
entered into an agreement with the defendant no.2 and since 10th
December 2004, the defendant no.2 has been staying in the suit flat.
 In my view, the finding rendered by the first appellate Court
that the power of attorney is not placed on record by both the defendants
and also the agreement dated 11th December 2004 on the basis of which
the defendant no.2 is in possession over the suit flat, the only inference
can be drawn that the defendant no.1 had with malafide intention
inducted the defendant no.2 in the suit flat on the basis of bogus power
of attorney and thus the possession of the defendant no.2 over the suit
flat cannot be said to be permissive is not perverse. In my view, both
the Courts have considered the evidence led by both the parties and
have rendered findings of facts which are concurrent findings and being
not perverse, cannot be interfered with by this Court under Section 100 of

the Code of Civil Procedure, 1908. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.746 OF 2013

Madhukar s/o. Baburao B.Savle,
V
 Smt.Nanda Madhukar Yene 
 CORAM : R.D. DHANUKA, J.
 DATE :   10th October 2016.
Citation: 2016(6) ALLMR 889

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What is procedure for transfer and conversion of Occupancy Class II government land?

 The writ jurisdiction of this Court is invoked against the order
dated 24/02/2010 passed by the Respondent No.2 i.e. the Collector, Nashik by

which order the application filed by the predecessor of the Petitioner for grant
of permission to transfer the land and for its conversion from agricultural to
non­agricultural came to be allowed on the terms and conditions mentioned
therein.  The terms and conditions mentioned in the impugned order entail the
payment of unearned income to the State Government, as also the condition
that the land in question would continue to remain as Occupancy Class II land.
The Petitioner is principally aggrieved by the aforesaid condition mentioned in
the impugned order.
 In the instant case it would have to be borne in mind that the land in
question was allotted to the father of the original owner Namdeo Bankar on a
new and impartible tenure i.e. Class II.  The father of the said Nameo Bankar
had also executed a Kabuliyat wherein he had given an undertaking that the
allottee and his successor were bound by the terms and conditions of the
allotment and that if he commits a breach, he is liable to be evicted.  Hence the
instant case is not a case where the renewal of lease was sought but is the case
where   the   original   allottee   had   sought   permission   to   transfer   and   for
conversion of the agricultural land to non­agricultural.   In so far as the said
aspect is  concerned,  the  GR  dated  08/09/1983 regulates  the  transfer  and
conversion of agricultural lands belonging to Class II.  The said GR therefore
supplements the Maharashtra Land Revenue Code in so far as the transfer and
conversion of the land belonging to agricultural Class II is concerned. Hence

the instant case can be distinguished on facts from the case before the Division
Bench.
24 It would also have to be noted that the Petitioner and original
Owner by their conduct are now estopped from contending that the said GR
dated 08/09/1983 has no application.   It is required to be noted that the
Petitioner/original Owner has applied for conversion in the year 1989 as per
the then extant policy.  The original owner and the Petitioner had prosecuted
the proceedings before the authorities and this Court also as regards quantum
of the unearned income payable under the said GR for transfer and conversion
of  the land. The original  owner and the  Petitioner  have also shown  their
willingness to pay the unearned income and in fact have now deposited the
said unearned income with the Collector, Nashik.   It was also contended on
behalf of the Petitioner in the said Writ Petition No.5740 of 2007 that the GR
dated   08/09/1983   has   been   fully   implemented,   meaning   thereby   that   the
applicability of the said GR was accepted. The aforesaid facts therefore act as
an estoppel against the Petitioner and the original owner from contending that
the said GR dated 08/09/1983 would have no application.  The conduct of the
Petitioner amounts to approbation and reprobation i.e. on one hand apply
under the said GR for transfer and conversion whereas on the other hand
contend that it is not liable to pay unearned income as premium which is
contemplated by the said GR. It also cannot be lost sight of that the tenor of

the above Petition is only as regards the challenge to the condition appearing
in  the  impugned order dated 24/02/2010 passed by the  Collector, Nashik
wherein it is stated that the transferee would continue to occupy the land as a
Class II Occupant.   The Petitioner or the original Owner therefore never did
once question the applicability of the said GR dated 08/09/1983 and therefore
the submissions advanced on the basis of the judgment of the Division Bench
cannot be countenanced in the facts of the instant case.   The judgment in
Mohinder Singh Gill's  case (supra) would also have no application having
regard to the facts of the instant case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6747 OF 2016 
M/s. Niketan Land and Estate Pvt. Ltd.
v
State of Maharashtra  
CORAM : R. M. SAVANT, J.

Pronounced on : 10th January 2017

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Whether incorrect description of property will vitiate sale transaction?

These provisions show that the transfer of
ownership of land involves transfer of full rights and
interests of the vendor and there is characteristic of
permanency to such transfer. The transfer takes place as
soon as the document is registered. In view of the
provision of section 8, quoted above, it can be said that
not much importance can be given to the incorrect
description of the structure standing on the land. Such
incorrect description cannot vitiate the sale. If boundaries
are given and they are definite, the land that is conveyed
is the land situated within those specific boundaries along
with structure standing on it. In view of the provision of
section 8, quoted above, if the vendor had no intention to
sell some portion of the property or some part of his
rights, he needs to specifically mention about it in the sale

deed. In absence of such mention the title in the land
along with title in the structure standing on the land,
passes to the purchaser. In view of this position of law,
nothing could have been achieved by the defendant even
after making the pleadings in that regard and giving
evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.1698 of 2005

 Shriram s/o Ratanlal Thakur

V
 Rameshwar s/o Shaligram Chandak

 CORAM: T.V. NALAWADE, J.
 DATE : 7th JUNE 2016.
Citation: 2016(6) MHLJ 750

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Whether tribunal under maintenance of parents and senior citizens Act can make any transfer of property void?

Section 23(1) of the Act of 2007 specifically state that where
any senior citizen who, after the commencement of this Act, has
transferred by way of gift or otherwise, his property, subject to the
condition that the transferee shall provide the basic amenities and basic
physical needs to the transferor and such transferee refuses or fails to
provide such amenities and physical needs, the said transfer of property
shall be deemed to have been made by fraud or coercion or under undue
influence and shall at the option of the transferor be declared void by
the Tribunal. Section 23(2) further states that where any senior citizen
has a right to receive maintenance out of an estate and such estate or
part thereof is transferred, the right to receive maintenance may be
enforced against the transferee if the transferee has notice of the right,
or if the transfer is gratuitous; but not against the transferee for
consideration and without notice of right.
Having heard the learned counsel for the petitioner, this
Court is of the view that the Act of 2007 is not without teeth. To provide
speedy redressal of grievance, the Act vests powers in the Tribunal to
make any transfer of the property void. The petitioner as per his own
averment in the application is unemployed. Nothing has been stated
regarding source of income of the petitioner. On 22.1.1999, an
agreement to sell and other papers were executed by Vijay Laxmi
Mathur. The petitioner and his wife were not possessed of the funds to
pay the sale consideration, noted in the agreement to sell. The
respondent no.3 Hanuman Prasad Sharma has specifically stated that he
had purchased the flat for his wife Pushpa Devi Sharma, and possession
was handed over to him and the original agreement to sell and other
original documents like allotment letters, letter of possession are with
Hanuman Prasad Sharma. Thus, it is discernible that the father in old age
being not able to move here and there, had asked the seller to execute
power of attorney in favour of his son.
In the present case, attorney has cheated the person who
had provided funds for execution of the agreement to sell. Scope of
Section 23 of the Act of 2007 cannot be restricted as the Act of 2007 is
beneficial legislation. The scope under Section 23 of the Act of 2007 can
be enlarged and the Tribunal can hold an inquiry as to who had provided
funds for purchase of flat by way of agreement to sell on 22.1.1999, what
was the age of the petitioner on 22.1.1999 and when he was married,
what were his resources, what were the resources of his wife to purchase
the flat. In case, the funds were provided by the father and the mother
in the year 1999, out of love and affection, the petitioner and his wife
cannot become ungreatful to the parents. By extending widest
interpretation to Section 23 read with Section 4 of the Act of 2007, this
Court is of the view that the Tribunal should have held an inquiry
compelling the petitioner and his wife to return sale consideration of the
flat to the parents so that they can survive with dignity.

REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B. Civil Writ Petition No. 12314/2013
Deepak Sharma vs. State of Rajasthan & Ors.
Dated: 20th April, 2016.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Citation:AIR 2016 Raj 188

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