Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

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

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

Print Page

Whether the court can grant benefit of S 51 of Transfer of Property Act to encroacher of land?

Section 51 of the TP Act reads thus:

51. Improvements made by bona fide holders under defective titles.--When the transferee of immoveable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

8. A perusal of Section 51, TP Act would reveal that even after the pre-requisites for the enforceability of equity enacted in it are satisfied, the right to election for one of the two alternatives provided under that Section would still rest with the person evicting. In other words, he may elect either to pay the value of improvements made by the Defendant who satisfies a description of "transferee" for the purpose of this Section and take the land or sell out his interests in the land to the transferee at the market value of the property, irrespective of the value of such improvements.

9. Section 51, TP Act is a general provision dealing with improvements effected by a transferee to the transferred property in the manner specifically provided thereunder. Thus, a bare perusal of Section 51, TP Act would reveal that in order to acquire the 'right to require' in the manner provided thereunder one should be a 'transferee' within the meaning of the TP Act and for the purpose of the said section. In short, Section 51 applies in terms to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner. 

10. The original Appellant has failed to establish that he is a "transferee" within the meaning of the TP Act and for the purpose of Section 51, TP Act. In order to attract the Section the occupant of the land must have held possession under colour of title, his possession must not have been by mere possession of another but adverse to the title of the true owner and he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof. In short, Section 51 gives only statutory recognition to the above three things. At the same time, in the case on hand, the concurrent findings of the courts below is that the Respondent herein is the owner of the land in question and the original Appellants had encroached upon it and effected construction. The Appellants herein have failed to establish the above mentioned three things. The evidence on record would also go to show that even the construction was effected in deviation of the approved plan.

11. In the light of the concurrent findings on the questions of ownership and encroachment, as noted above, it can only be held that it was after encroaching upon the land in question and ignoring the absence of any title that he made structures thereon at his own risk. Once it is so found, the original Appellant cannot be treated as a 'transferee' within the meaning of the TP Act and for the purpose of Section 51, TP Act. Therefore, we have no hesitation to hold that the Appellants are not entitled to rely on the provision Under Section 51, TP Act to seek for restoration of the modification made by the First Appellate Court with respect to demolition and possession. The Appellants, rightly, did not take up the plea of adverse possession and in the circumstances, being not a transferee for the purpose of Section 51 TP Act, he cannot legally require the Respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

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

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023

Print Page

Whether transferee of immovable property can obtain execution of a decree even though decree was not assigned to him?

 Thus, the Law Commission recommended amending Order XXI Rule 16 to clarify that it does not affect the provisions of Section 146 and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself.

26. In the conspectus of the aforesaid we are of the view that the objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree. Thus, what has been discussed even in the judgment in Jugalkishore Saraf (supra) as a view based on the equitable principle was sought to be incorporated in Order XXI Rule 16 of the CPC by adding the Explanation, something which had not been done earlier. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment and it is not in doubt that the present case is one post the amendment.

27. We may further add that while considering the divergent views of the High Courts, the Law Commission took note of the fact that two different interpretations of Jugalkishore Saraf (supra) had been adopted. Thus, the Law Commission really sought to clarify the legal position so that the conflicting interpretation of the Supreme Court judgment would not survive. The Explanation clearly stipulates that nothing in Order XXI Rule 16 of the CPC would affect the provisions of Section 146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law. No doubt the appellants are not parties in the suit proceedings but they claim as assignees of the decree holder.

Supreme Court

JUSTICE Sanjay Kishan Kaul JUSTICE B.R. Gavai

VAISHNO DEVI CONSTRUCTION Rep. Thr. Sole Proprietor (D) Thr. LRs & Anr. Vs. UNION OF INDIA & ORS.

CIVIL APPEAL NO. 18278 OF 2017

21st October 2021

Author: SANJAY KISHAN KAUL, J.

Citation: 2021 ALL SCR 2335

Print Page

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

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

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

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 2752 of 2013 (O&M)

Decided On: 31.07.2019

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

Hon'ble Judges/Coram:

Harminder Singh Madaan, J.

Citation: AIR 2019 P &H 164

Print Page

Whether court can allow application if it is made under wrong provision of law?

According to us, the application was wrongly filed under
Order I Rule 10 CPC and it should have been filed Order XXII
Rule 10 CPC which reads thus:
“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY
OF PARTIES
xxx xxx xxx
10. Procedure in case of assignment before final order in
suit.(
1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit,
the suit may, by leave of the Court, be continued by or
against the person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of
subrule
(1).”
8. It is well settled law that mere mentioning of an
incorrect provision is not fatal to the application if the power to
pass such an order is available with the court.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10521 OF 2013

PRUTHVIRAJSINH NODHUBHA JADEJA  Vs  JAYESHKUMAR CHHAKADDAS
SHAH 
Deepak Gupta, J.

Dated:October 04, 2019
Citation: (2019) 9 SCC 533

Print Page

Who can avoid sale of minor’s immovable property?

 One of the questions which came for consideration
in the above case was that “whether a transferee from
a minor after he attained majority, can file a suit
to set aside the alienation made by the minor’s
guardian or the said right is one to be exercised
only by the minor? A person entitled to avoid such a
sale is either the minor or any person claiming under
him. This Court held that either the minor, or his
legal representative in the event of his death, or
his successor-in-interest claiming under him by

reason of transfer inter vivos, must bring action
within the period prescribed for such a suit, i.e.
three years. Following is laid down in paragraph 9:
“9. The effect of this sub-section is
that any disposal of immovable property by a
natural guardian otherwise than for the
benefit of the minor or without obtaining
the previous permission of the court is
voidable. A person entitled to avoid such a
sale is either the minor or any person
claiming under him. This means that either
the minor, or his legal representative in
the event of his death, or his successor-ininterest
claiming under him by reason of
transfer inter vivos, must bring action
within the period prescribed for such a
suit, i.e. three years from the date on
which the minor died or attained majority,
as the case may be. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1782 OF 2019
(arising out of S.L.P. (C) No. 21091 of 2010)

MURUGAN & ORS. Vs. KESAVA GOUNDER

ASHOK BHUSHAN, J.
Dated:February 25, 2019.

Print Page

Whether eviction decree can be passed against tenant for non payment of arrears of rent due prior to transfer of tenanted premises?

It is to be seen here that in so far as the decree passed on the ground of arrears of rent is concerned, the Court has observed that the demand notice was issued by the landlords to the tenant on 3rd November, 1976, demanding the arrears of rent from 1-4-1976. The sale deed in favour of the landlords is dated 16th November, 1976. The Appellate Court has held that the landlords were claiming their entitlement to recover the rent from 1-4-1976 on the basis of the agreement of sale and copy of that agreement of sale has never been produced on record. The Appellate Court has held that in the absence of copy of the agreement of sale being placed on record, the landlords cannot be held to be entitled to the rent from 1-4-1976. The Appellate Court has further relying on the provisions of section 109 of the Transfer of Property Act, held that a transferee does not become entitle to arrears of rent due before the date of transfer and therefore, the landlords could not have claimed the arrears of rent for the period before 16-11-1976.

4. The learned Counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1-4-1976 was given to the landlords, the landlords were entitled to recover the rent from 1-4-1976. It is however, to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of section 109 of the Transfer of Properly Act, it is crystal clear that a transferee is not entitled to arrears of rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer cannot be recovered as an arrears of rent and therefore a decree of eviction cannot be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4600 & 4599 of 1986

Decided On: 05.02.1998

Sukhlal Chunilal Ghagani Vs. Harish Suvarne & another

Hon'ble Judges/Coram:

D.K. Deshmukh, J.

Citation: 1998(3) ALLMR 761

Print Page

Whether transferee can recover possession for breaches committed by tenant prior to assignment of tenanted premises?

 For the reasons stated hereinabove, the view taken in Shantinath's case by the learned single Judge is overruled and we hold that the right of recovery of possession under sub-secs. (a) and (b) of Section 13(1) of the Act can be exercised by the successor-in-interest either by operation of law or by act of parties, of the original landlord and such right is not restricted only to the person who was a landlord on the date of the commission of the breach. In the present case, the record clearly indicates that the breach was committed by the tenant by erecting permanent structure, a couple of months before the death of the original owner and the original owner was protesting against the said breach and was unable to institute proceedings because of the illness and confinement in the hospital. It is obvious that the oriIN THE HIGH COURT OF BOMBAY

ginal landlord had not waived his right to recover possession and as such the right did devolve upon his successor-in-interest and the respondents are perfectly entitled to claim recovery of possession on that count. On the findings recorded by the two Courts below and approved by us, the decree of eviction passed against the tenant requires to be upheld. 

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln, No. 3391 of 1975

Decided On: 05.08.1981

Radhabai Bapurao Shelar  Vs. Madhav Hiralal Shelar.

Hon'ble Judges/Coram:

V.M. Kanade and M.L. Pendse, JJ.

Print Page

Whether transferee of tenanted premises can recover past arrears of rent?

 That being so, it cannot be said that the tenant had neglected to pay the rent. Then again as on the date of notice, there were no arrears of outstanding for a period of six months or more. What is important to be noted is that the lease deed was executed on 8.6.67 in favour of the appellant. In that lease deed, no where is any assignment of rent. Section 109 of the Transfer of Property Act reads as under:

If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so along as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again not transferee.

22. In view of the proviso, the appellant-assignee is not entitled to rent before the assignment. The rent is merely a debt.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2729(N) of 1979

Decided On: 12.07.1994

N.M. Engineer  Vs.  Narendra Singh Virdi and Ors.

Hon'ble Judges/Coram:

S. Mohan and N.P. Singh, JJ.

Citation: 1995(2) Bom CR 376

Print Page

Whether transferee of vehicle is entitled to get benefit of insurance policy if there is theft of vehicle?

The relevant observations made by the
Hon'ble Supreme Court in para 10 of its judgment in Mallamma's case
(supra), which can be gainfully followed in the present case, read as under:-
“Before us, learned counsel for the appellants
relying upon Section 157 of the M.V. Act, contended that
there is an admitted transfer of ownership of the vehicle as
proved before the Commissioner. Once the ownership of
the vehicle is admittedly proved to have been transferred to
Jeeva Rathna Setty, the existing insurance policy in respect
of the same vehicle will also be deemed to have been
transferred to the new owner and the policy will not lapse
even if the intimation as required under Section 103 of the
M.V. Act is not given to the insurer, hence the impugned
order passed by the High Court is contrary to law. In
support of this contention, learned counsel for the
appellant has relied upon a judgment of this Court in G.
Govindan Vs. New India Assurance Co. Ltd . (1999) 3
SCC 754.”
When the abovesaid ratio of the law laid down in Mallamma's
case (supra), is considered in the factual context of the present case, same
squarely applies in favour of respondent No.1 and against the petitioner-

Insurance Company. In this view of the matter, it can be safely concluded
that learned Permanent Lok Adalat was well justified, while placing reliance
on the judgment of the Hon'ble Supreme Court in Mallamma's case (supra)
and the impugned order deserves to the upheld for this reason also.
 IN THE HIGH COURT OF PUNJAB AND HARYANA
 AT CHANDIGARH
Civil Writ Petition No. 14086 of 2016
Date of Decision: 11.8.2016
The Oriental Insurance Company Limited and others

Vs.
Abhishek Kumar and another

CORAM :  MR. JUSTICE RAMESHWAR SINGH MALIK
Citation: 2017(2) ALLMR(JOURNAL)23

Print Page

Whether right of pre-emption is available to coparcener even if transferee has not filed suit for partition?

The next question arises as to whether the plaintiffs
have a right of re-purchase as provided under Section 4 of the
Partition Act.
Law is well-settled that a coparcener/co-owner/cosharer
is permitted to exercise his right of re-purchase under Section
4 of the Partition Act only when the transferee has sued for partition
of his/her purchased property by filing a suit for partition. In the
instant case, the transferee, namely, defendant no. 10 has not filed 
any suit for partition and for allotment of his purchased property to
the share of his vendor. In the case of Babulal –v- Habibnoor Khan
(Dead) by L.Rs. and others, reported in AIR 2000 SC 2684, the
Hon’ble Supreme Court held as follows:-
“10. Therefore, one of the basic conditions for
applicability of Section 4 as laid down by the
aforesaid decision and also as expressly mentioned
in the section is that the stranger-transferee must
sue for partition and separate possession of the
undivided share transferred to him by the co-owner
concerned. It is, of course, true that in the said
decision it was observed that even though the
stranger-transferee of such undivided interest moves
an execution application for separating his share by
metes and bounds it would be treated to be an
application for suing for partition and it is not
necessary that a separate suit should be filed by
such stranger-transferee. All the same, however,
before Section 4 of the Act can be pressed into
service by any of the other co-owners of the dwelling
house, it has to be shown that the occasion had
arisen for him to move under Section 4 of the Act
because of the stranger-transferee himself moving for
partition and separate possession of the share of the
other co-owner which he would have
purchased………...”
A similar view has also been taken in a decision in the
case of Gautam Paul –v- Debi Rani Paul and others, reported in
AIR 2001 SC 61, wherein the Hon’ble Supreme Court in paragraph
23 held as follows:-
“23. We are in agreement with this opinion. There
is no law which provides that co-sharer must only
sell his/her share to another co-sharer. Thus
strangers/outsiders can purchase shares even in a
dwelling house. Section 44 of the Transfer of
Property Act provides that the transferee of a share
of a dwelling house, if he/she is not a member of
that family, gets no right to joint possession or
common enjoyment of the house. Section 44
adequately protects the family members against
intrusion by an outsider into the dwelling house.
The only manner in which an outsider can get
possession is to sue for possession and claim
separation of his share. In that case Section 4 of the
Partition Act comes into play. Except for Section 4
of the Partition Act there is no other law which
provides a right to a co-sharer to purchase the
share sold to an outsider. Thus before the right of
pre-emption, under Section 4, is exercised the
conditions laid down therein have to be compliedwith. As seen above, one of the conditions is that
the outsider must sue for partition. Section 4 does
not provide the co-sharer a right to pre-empt where
the stranger/outsider does nothing after purchasing
the share. In other words, Section 4 is not giving a
right to a co-sharer to pre-empt and purchase the
share sold to an outsider anytime he/she wants.
Thus even though a liberal interpretation may be
given, the interpretation cannot be one which gives
a right which the legislatures clearly did not intend
to confer. The legislature was aware that in a suit
for partition the stranger/outsider, who has
purchased a share, would have to be made a party.
The legislature was aware that in a suit for partition
the parties are interchangeable. The legislature was
aware that a partition suit would result in a decree
for partition and in most cases a division by metes
and bounds. The legislature was aware that on an
actual division, like all other co-sharers, the
stranger/outsider would also get possession of his
share. Yet the legislature did not provide that the
right for pre-emption could be exercised “in any suit
for partition”. The legislature only provided for such
right when the “transferee sues for partition”. The
intention of the legislature is clear. There had to be
initiation of proceedings or the making of a claim to
partition by the stranger/outsider. This could be by
way of initiating a proceeding for partition or even
claiming partition in execution. However, a mere
assertion of a claim to a share without demanding
separation and possession (by the outsider) is not
enough to give to the other co-sharers a right of preemption.
There is a difference between a mere
assertion that he has a share and a claiming for 
possession of that share. So long as the strangerpurchaser
does not seek actual division and
possession, either in the suit or in execution
proceedings, it cannot be said that he has sued for
partition. The interpretation given by Calcutta,
Patna, Nagpur and Orissa High Courts would result
in nullifying the express provisions of Section 4,
which only gives a right when the transferee sues
for partition. If that interpretation were to be
accepted then in all cases, where there has been a
sale of a share to an outsider, a co-sharer could
simply file a suit for partition and then claim a right
to purchase over that share. Thus even though the
outsider may have, at no stage, asked for partition
and for the delivery of the share to him, he would be
forced to sell his share. It would give to a co-sharer
a right to pre-empt and purchase whenever he/she
so desired by the simple expedient of filing a suit forpartition. This was not the intent or purpose of
Section 4. 

 HIGH COURT OF ORISSA: CUTTACK

 F.A. NO. 82 OF 2000

Rama Chandra Prusty 

-Versus
Bidyadhar Prusty and others 
 Date of Judgment: 11.12.2015

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa

Print Page

Whether transferee of property can get impleaded in partition suit?

 A transferee gets the right of the transferor and can
pursue those rights only. In this case the transferor is a co-sharer in a partition
and administration suit where a preliminary decree has been passed. The
property has also been proposed to be partitioned in a particular way by the
Commissioner of Partition. The transferee’s right is limited to ensuring that the
transferor’s share, as conveyed to her is properly partitioned in accordance with
the preliminary decree. If the transferor loses interest in the suit then the
transferee by participation in the trial can continue the suit in the shoes of the
transferor, to this limited extent only. I grant such right to the applicant.
GA 1217 OF 2016


IN THE HIGH COURT AT CALCUTTA
Extra-Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUMARMAL SURANA V BHAWARLAL BHANDARI
 & ORS.

 BEFORE:
 The Hon'ble JUSTICE I. P. MUKERJI
 Date : 14th July, 2016.
Citation:AIR 2016 (NOC)711 Cal

Print Page

Whether transferee pendente lite can seek partition in final decree proceeding?

Countering the said document, learned Counsel for Defendants 9 and 10, relied on the Judgment of the Apex Court in the case of 'Khemchand Shankar Choudhary and Another v. Vishnu Hari Patil and Others' reported in MANU/SC/0168/1982 : 1983 [1] SCC 18, where dealing with the purchaser pendente lite, locus standi to claim equitable partition before the Collector in Final Decree Proceedings under section 54 of the Civil Procedure Code, it was held as under:

"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the shares of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares."

68. Therefore, a transferee pendente lite steps into the shoes of the transferor who is a party to the suit. He acquires all the rights of the transferor. The pendency of the suit would not come in the way of his acquiring such right, if the transferor has any such right. If the transferor has no right, he acquires none. This is a matter which is finally adjudicated in the suit. The judgment and decree passed in the suit is equally binding on him, as his transferee, whether he is impleaded as a party to the suit or not. Transferee from a party of property which is subject matter of partition can exercise all the rights of the transferor. Such transferee is representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. When a party to a decree dies, leaving some heirs, in the final decree proceedings, shares may be allotted to such heirs. Similarly, in the case of transferee pendente lite, if there is no dispute, final decree Court can proceed to make allotment of the properties in an equitable manner  instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also seek for an equitable partition, even if the transfer is during the pendency of the suit. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.F.A. No. 960/2003

Decided On: 31.01.2015

 Syed Basheer Malik and Ors.
Vs.
 Jameela Begum and Ors.

Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.

Citation:AIR 2016(NOC)395 KAR

Print Page

When specific performance of contract should not be enforced against transferees?

 The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract.

Supreme Court of India

Padmakumari & Ors vs Dasayyan & Ors on 7 April, 2015

Bench: V. Gopala Gowda, C. Nagappan

REPORTABLE

Citation; 2016(2) MHLJ 307 SC

Print Page

Whether transferee is required to prove that sale consideration given by him was used for meeting legal necessity of family?

 Before us Mr. S. P. Sinha accepts the position that Rs. 45,000/- out of the consideration of Rs. 50,000/- was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His arguments is that a sum of Rs. 5,000 or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of Rs. 50,000/-. This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alliance is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is Sri Krishan Das v. Nathu Ram I.L.R. 49 All. 149. In that case the consideration for the alienation was Rs. 35,000/-. The alience was able to prove that there was legal necessity only to the extent of Rs. 3,000/- and not for the balance. The High Court held that the alienation could be set aside upon the plaintiff's paying Rs. 3,000/- to the alience. But the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alience has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alience. The reason for this, as has been stated by the Privy Council in some other cases, is that the alience can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself. This decision was followed by the Privy Council in Niamat Rai v. Din Dayal I.L.R. 8 Lah 597 where at p. 602 and 603 it has observed :

"It appears from the judgment of the learned Judges of the High Court that if they had been satisfied that the whole of the Rs. 38,400/- paid out of the sale proceeds was paid in discharge of debts incurred before the negotiation of sale, they would have been of opinion that the sale ought to have been upheld. With this conclusion their Lordships agree, but they are of opinion that undue importance was attached by the learned Judges to the question whether some of the payments where made in discharge of debts incurred in the interval between the negotiation of the sale and the execution of the sale deed. Even if there had been no joint family business, proof that the property had been sold for Rs. 43,500/- to satisfy pre-existing debts to the amount of Rs. 38,000 would have been enough to support the sale without, showing how the balance had been applied, as held by their Lordships in the recent case of Krishan Das v. Nathu Ram. I.L.R. 49. All. 149"

6. Both these decisions state the correct legal position, Mr. Sinha's argument must, therefore, be rejected.

Supreme Court of India

Radhakrishnadas vs Kaluram on 10 April, 1962

Equivalent citations: 1967 AIR 574, 1963 SCR (1) 648

Bench: Mudholkar, J.R.

Print Page

What are essential requirements for getting rights as per S 53A of transfer of property Act?

As   regards   the   reliance   by   the   occupant   on   Section   53A   of   the 
Transfer of Property Act, the said Section enables   a transferee to resist     an 
attempt made by the owner  to recover possession of the property under certain 
limited circumstances which are not to be found in the present case. As held by 
the   Hon’ble   Supreme   Court   in   its   decisions   in  Shankar   Gopinath   Apte   vs.  
Gangabai Patwardhan (supra),  and Rambhau Namdeo Gajre vs. Narayan Bapuji  

Dhotra (supra), the Section applies only where any person contracts to transfer 
for consideration any immovable property in writing,   signed by him or on his 
behalf   from   which   the   terms   necessary   to   constitute   the   transfer   can   be 
ascertained   with   reasonable   certainty   and   such   person     has   been   placed   in 
possession of the property in pursuance of such a contract.  In the present case, it 
is an admitted position that no written contract was entered into between the 
Company and the occupant. There is even otherwise no means of ascertaining 
the terms of the transaction (including the consideration) alleged to have been 
agreed to.  Though the occupant has been found to be in possession of the said 
property,   the   circumstances   in   which   she   was   so   placed   are   unclear.     The 
occupant has relied on the alleged letter dated 14 th November, 2007 where there 
is   a   reference   to   the   occupant   having   been   placed   in   possession   of   the   said 
property   by   HTPL.   The   occupant   has   however   not   produced   any   possession 
receipt that may have been executed between the parties which would indicate 
the basis on which the possession was handed over. The occupant merely relied 
on an alleged letter dated 31 st  December, 2007 addressed by the Company to 
MIDC   seeking   their   no   objection   for   the   transfer   of   the   said   property   to   the 
occupant as a Chief Promoter of the proposed Society.  Apart from the fact that 
the said letter does not disclose any agreement in favour of the occupant in her 
personal capacity or the terms and conditions of any such alleged agreement, it 
is  a   settled   position   that   such   a   letter  would   not   constitute   an  agreement   in 
writing for the purpose of Section 53A.      In fact, in  Shravan Jayaram Patil vs.  

Garbad Ukha Nhavi (supra) where an application was made by a Plaintiff to have 
the Defendant's name entered in the mutation register in respect of certain land 
on the ground that it had been sold by him to the Defendant orally and setting 
out   the   terms   of   the   sale,   it   was   held   not   to   be   sufficient   to   satisfy   the 
requirements of Section 53 A of the Act. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION 
OFFICIAL LIQUIDATOR'S REPORT NO. 145 OF 2011
IN
COMPANY PETITION NO. 827 OF 2007

 Smt. Sunita V. Warke
Board of Industrial and Financial Reconstruction

          vs.
M/s. Hindustan Transmission Products Ltd. 

        
    CORAM:  S.J. KATHAWALLA, J.
  

  JUDGMENT PRONOUNCED ON: September 05, 2012
Citation; 2014(4) ALLMR 308

Print Page

Minors might be transferees but not transferors.

Under Section 6 of the Transfer of Property Act, property may be transferred to a minor as he is not " a person legally disqualified to be transferee" within the meaning of Sub-section (h) of that section. It is quite clear that a transfer of full ownership or of a mortgage interest in immoveable property may be made by way of gift in favour of a minor just as a minor may inherit specific immoveable property or an interest in it by way of mortgage. The question then is whether it makes any difference that the transfer in favour of the minor by way of sale or mortgage is made in consideration of a price paid or a loan advanced by the minor. No doubt according to their Lordships' decision in such a case the minor could not bind himself by contract to pay the price or advance the mortgage money ; but when he has done so and the vendor or mortgagor has executed a registered conveyance in his favour, is there any reason why the transfer in his favour should not take effect? The provision of law which renders minors incompetent to bind themselves by contract was enacted in their favour and for their protection and it would be a strange consequence of this legislation if they are to take nothing under transfers in consideration of which they have parted with their money. This precise question cannot arise in England where a purchase by a minor of immoveable property is voidable by him on attaining majority but not void ah initio, as it is only the contracts specified in the Infants' Relief Act which are void. However even in the case of a contract which was void under the Infants' Relief Act, Lord Coleridge, C.J. and Bowen, L.J. held that a reasonable construction must be put upon the statute and that when an infant had paid for something under a void contract and had used or consumed it, it would be contrary to natural justice that he should recover back the money which he had paid on the ground that the contract was void. Valentini v. Canali (1896) I.L.R. 20 M. 147. I do not think this decision is inconsistent with Thurstan v. Nottingham Permanent Benefit Building Society (1909) I.L.R. 33 M. 312, which decided, as I understand it, that the mortgage given by the minor as security for a void contract entered into by him was also void. Applying the same reasoning to the present case it would be even more opposed to natural justice to allow the transferor to a minor by way of sale or mortgage to question the transfer for which full consideration has been paid to him. In that case it was the minor who sought to take advantage in an unconscionable manner of the Act which had been passed for the benefit of minors. There is even less reason for allowing a vendor to a minor to take advantage of the minor's statutory inability to contract which was imposed for his protection in order to avoid a transfer into which he entered with his eyes open.

Property - Validity of mortgage - Whether mortgage executed in favour of minor who had advanced whole of mortgage money was enforceable by him or by any other person on his behalf - Held, it was clear that before passing of these connected Acts, Contract Act and Transfer of Property Act, transfers by way of sale and mortgage in favour of minors were not void if it had been intended to make them absolutely void and of no effect this would have been done by clear and unambiguous words - On contrary, general scheme of Transfer of Property Act as appeared from definition was that minors might be transferees but not transferors.

Madras High Court

A.T. Raghava Chariar vs O.A. Srinivasa Raghava Chariar on 5 April, 1916

Equivalent citations: 36 Ind Cas 921, (1916) 31 MLJ 575,AIR 1917 Mad 561

Print Page

Whether suit for injunction is maintainable if plaintiff has failed to claim specific performance of contract?

 Plaintiff who is transferee under the agreement of sale failed to perform his part of contract i.e., in paying the balance of sale consideration to the transferors i.e., the appellant herein. Hence, the plaintiff is not entitled to claim protection under Section 53-A of the Transfer of Property Act on the basis of part performance of the contract.  suit filed for permanent injunction only without seeking the relief of specific performance of the agreement of sale is barred under Order 2, Rule 2 of the Civil Procedure Code. I am inclined to follow the decision of this Court especially in view of the fact that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of the contract and failed to seek the relief of specific performance of the agreement of sale. Hence, the plaintiff's suit is not maintainable for the reason that the plaintiff has not sought for the relief of specific performance of the agreement of sale."

ANDHRA PRADESH HIGH COURT

Chellingi Narayanamurthy ... vs Chillingi Satyanarayana And ... on 27 June, 2007

Print Page