The Transfer of Property Act, 1882 distinguishes between two fundamental types of property interests: vested and contingent. Both concepts are governed by specific provisions and have distinct legal implications.
Showing posts with label vested right. Show all posts
Showing posts with label vested right. Show all posts
Tuesday, 24 June 2025
Wednesday, 4 December 2019
Questions and answers on law part 5
1) Q. What is transfer by ostensible owner ?
A. Section 41 in The Transfer of Property Act, 1882
41. Transfer by ostensible owner.—Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
2) What is vested interest ?
Wednesday, 1 February 2017
Whether property vested in female heirs will be divested by subsequent adoption of son?
It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters.
14. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1.
Looking at the aforestated provisions of Section 12 of the Adoption Act, it is crystal clear that the property which had been vested in the widow and three daughters of late Shri Sharnappa Gaded in 1957 would not be disturbed because of adoption of defendant no.1, which had taken place on 9th February, 1971. Thus, Smt. Sharnappa had become absolute owner of 1/4th share and Smt. Nagamma, the mother of the plaintiff had also become an owner of 1/4th share of the property belonging to late Shri Sharnappa Gaded.
Non-reportable
Supreme Court of India
Saheb Reddy vs Sharanappa & Ors on 16 November, 2016
Bench: Anil R. Dave, L. Nageswara Rao
CIVIL APPEAL NO. 901 OF 2014
Citation:(2017) 1 SCC 142Monday, 12 December 2016
What is doctrine of settled expectation in respect of regularization of encroachment?
The question whether an applicant would have a vested right to
seek consideration of his request on the basis of the date when he had so
applied has been considered by the Hon'ble Supreme Court in Howrah
Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663. In said case, an
application for sanction for construction was made by a Company. As the
sanction was neither granted nor refused within the prescribed period, the
Company had approached the High Court in that regard. The High Court had
directed the Municipal Corporation to consider grant of sanction subject to
fulfillment of requirements. When the application for sanction was pending,
the Building Rules were amended due to which the sanction as sought was
not granted. In that background while considering the question as to
whether any vested right had been created in favour of the Company despite
subsequent amendment to the Building Rules, it was observed by the Hon'ble
Supreme Court that with long usage the word “vest” has also acquired a
meaning as “an absolute or indefeasible right.” What the Company had was
only a “legitimate” or “settled expectation” to obtain the sanction. The same
did not create any vested right to obtained the sanction. The following
observations in para 37 of the aforesaid judgment clarify the position.
“37.............................................................................What we
can understand from the claim of a “vested right” set up by
the respondent Company is that on the basis of the Building
Rules, as applicable to their case on the date of making an
application for sanction and the fixed period allotted by the
Court for its consideration, it had a “legitimate” or “settled
expectation” to obtain the sanction. In our considered
opinion, such “settled expectation”, if any, did not create any
vested right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner of
processing of application for sanction by the Corporation
cannot be blamed for delay but during pendency of its
application for sanction, if the State Government, in exercise
of its rulemaking power, amended the Building Rules and
imposed restrictions on the heights of buildings on G.T. Road
and other wards, such “settled expectation” has been rendered
impossible of fulfilment due to change in law. The claim based
on the alleged “vested right” or “settled expectation” cannot
be set up against statutory provisions which were brought into
force by the State Government by amending the Building
Rules and not by the Corporation against whom such “vested
right” or “settled expectation” is being sought to be enforced.
The “vested right' or settled expectation has been nullified not
only by the Corporation but also by the State by amending the
Building Rules, Besides this, such a “settled expectation” or
the socalled “vested right” cannot be countenanced against
public interest and convenience which are sought to be served
by amendment of the Building Rules and the resolution of the
Corporation issued thereupon.”
From the aforesaid observations, it is clear that the petitioners
merely had a “settled expectation” in the matter of regularization of their
encroachment under Government Resolution dated 28111991 and not any
vested right.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 6466 OF 2015
seek consideration of his request on the basis of the date when he had so
applied has been considered by the Hon'ble Supreme Court in Howrah
Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663. In said case, an
application for sanction for construction was made by a Company. As the
sanction was neither granted nor refused within the prescribed period, the
Company had approached the High Court in that regard. The High Court had
directed the Municipal Corporation to consider grant of sanction subject to
fulfillment of requirements. When the application for sanction was pending,
the Building Rules were amended due to which the sanction as sought was
not granted. In that background while considering the question as to
whether any vested right had been created in favour of the Company despite
subsequent amendment to the Building Rules, it was observed by the Hon'ble
Supreme Court that with long usage the word “vest” has also acquired a
meaning as “an absolute or indefeasible right.” What the Company had was
only a “legitimate” or “settled expectation” to obtain the sanction. The same
did not create any vested right to obtained the sanction. The following
observations in para 37 of the aforesaid judgment clarify the position.
“37.............................................................................What we
can understand from the claim of a “vested right” set up by
the respondent Company is that on the basis of the Building
Rules, as applicable to their case on the date of making an
application for sanction and the fixed period allotted by the
Court for its consideration, it had a “legitimate” or “settled
expectation” to obtain the sanction. In our considered
opinion, such “settled expectation”, if any, did not create any
vested right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner of
processing of application for sanction by the Corporation
cannot be blamed for delay but during pendency of its
application for sanction, if the State Government, in exercise
of its rulemaking power, amended the Building Rules and
imposed restrictions on the heights of buildings on G.T. Road
and other wards, such “settled expectation” has been rendered
impossible of fulfilment due to change in law. The claim based
on the alleged “vested right” or “settled expectation” cannot
be set up against statutory provisions which were brought into
force by the State Government by amending the Building
Rules and not by the Corporation against whom such “vested
right” or “settled expectation” is being sought to be enforced.
The “vested right' or settled expectation has been nullified not
only by the Corporation but also by the State by amending the
Building Rules, Besides this, such a “settled expectation” or
the socalled “vested right” cannot be countenanced against
public interest and convenience which are sought to be served
by amendment of the Building Rules and the resolution of the
Corporation issued thereupon.”
From the aforesaid observations, it is clear that the petitioners
merely had a “settled expectation” in the matter of regularization of their
encroachment under Government Resolution dated 28111991 and not any
vested right.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 6466 OF 2015
Bhagwan Kisan Wagh V State of Maharashtra,
CORAM: A.S. CHANDURKAR, J.
DATED : 21-07-2016.
Citation: 2016 (5) ALLMR847
Whether application for regularisation of encroachment can be decided as per provisions applicable on date of their disposal?
I have gone through the documents filed on record. As per Government
Resolution dated 28.11.1991 a policy decision was taken by the State
Government to regularise encroachments made between 01.04.1978 and
14.04.1990. The manner in which such encroachments could be regularised
was stipulated therein. In Jagpal Singh (supra) the Hon'ble Supreme Court
noticed that various lands that vested in the grampanchayats had been
encroached. It was noticed that various State Governments had permitted
allotment of such lands to private persons and commercial enterprises on
payment of some money. It was observed that such Government orders were
illegal. In that background directions were issued to all State Governments to
prepare schemes for eviction of illegal/unauthorised occupants of such land.
It was observed that such schemes should provide for speedy eviction of
illegal occupants after giving show cause notice and brief hearing.
Pursuant to this judgment, the State Government brought into
effect Government Resolution dated 12.07.2011. The same was for the
purpose of removal of encroachments on Eclass lands. A policy decision was
taken that in future such lands should be utilised only for implementing
public utility services and for implementing the policies of the Central
Government and the State Government. It was also resolved not to allot such
lands to any individual or any private institution.
7] In R. V. Bhuskute (supra) the Division Bench of this Court while
entertaining a public interest litigation in the matter of removal of
encroachments issued directions to the State Government to publish a list of
persons who were entitled to take benefit of Clause 10 of Government
Resolution dated 28.11.1991. This order passed by the Division Bench was
considered subsequently by another Division Bench in Bhaskar Bhagwant
Dikkar (supra). It was observed that the order passed in R. V. Bhuskute
(supra) did not refer to the judgment of the Hon'ble Supreme Court in
Jagpal Singh (supra) as well as the Government Resolution dated
12.07.2011. The Division Bench thereafter proceeded to direct the State
Government to implement the judgment of the Hon'ble Supreme Court in
Jagpal Singh (supra) as well as the Government Resolution dated
12.07.2011. A further direction was issued to all Collectors in the State to
recall any order of regularising any encroachment if made under Clause 9(1)
and 9(2) of Government Resolution dated 12.07.2011 and to take possession
of such lands for grazing purpose.
8] It would be first necessary to consider whether the petitioners can
claim a vested right for seeking consideration of their applications for
regularization of encroachments in terms of Government Resolution dated
28111991. This would have to be considered in the light of the fact that
when the applications for regularisation were pending, another Government
Resolution dated 1272011 indicating a change in policy came into effect.
The question whether an applicant would have a vested right to
seek consideration of his request on the basis of the date when he had so
applied has been considered by the Hon'ble Supreme Court in Howrah
Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663. In said case, an
application for sanction for construction was made by a Company. As the
sanction was neither granted nor refused within the prescribed period, the
Company had approached the High Court in that regard. The High Court had
directed the Municipal Corporation to consider grant of sanction subject to
fulfillment of requirements. When the application for sanction was pending,
the Building Rules were amended due to which the sanction as sought was
not granted. In that background while considering the question as to
whether any vested right had been created in favour of the Company despite
subsequent amendment to the Building Rules, it was observed by the Hon'ble
Supreme Court that with long usage the word “vest” has also acquired a
meaning as “an absolute or indefeasible right.” What the Company had was
only a “legitimate” or “settled expectation” to obtain the sanction. The same
did not create any vested right to obtained the sanction. The following
observations in para 37 of the aforesaid judgment clarify the position.
“37.............................................................................What we
can understand from the claim of a “vested right” set up by
the respondent Company is that on the basis of the Building
Rules, as applicable to their case on the date of making an
application for sanction and the fixed period allotted by the
Court for its consideration, it had a “legitimate” or “settled
expectation” to obtain the sanction. In our considered
opinion, such “settled expectation”, if any, did not crate any
vested right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner of
processing of application for sanction by the Corporation
cannot be blamed for delay but during pendency of its
application for sanction, if the State Government, in exercise
of its rulemaking power, amended the Building Rules and
imposed restrictions on the heights of buildings on G.T. Road
and other wards, such “settled expectation” has been rendered
impossible of fulfilment due to change in law. The claim based
on the alleged “vested right” or “settled expectation” cannot
be set up against statutory provisions which were brought into
force by the State Government by amending the Building
Rules and not by the Corporation against whom such “vested
right” or “settled expectation” is being sought to be enforced.
The “vested right' or settled expectation has been nullified not
only by the Corporation but also by the State by amending the
Building Rules, Besides this, such a “settled expectation” or
the socalled “vested right” cannot be countenanced against
public interest and convenience which are sought to be served
by amendment of the Building Rules and the resolution of the
Corporation issued thereupon.”
From the aforesaid observations, it is clear that the petitioners
merely had a “settled expectation” in the matter of regularization of their
encroachment under Government Resolution dated 28111991 and not any
vested right.
9. It is also equally well settled that consideration of an application
of the present nature would depend upon the provisions as are applicable on
the date of disposal of the application. In case of a change in policy, the
application would be liable to be dealt with in the manner and procedure that
is prevailing on the date when such application is considered and decided.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 6466 OF 2015
Bhagwan Kisan Wagh V State of Maharashtra,
CORAM: A.S. CHANDURKAR, J.
DATED : 21-07-2016.
Citation: 2016 (5) ALLMR847
Sunday, 24 July 2016
Whether vested right can be taken away?
It is trite that a vested right cannot be taken away except by a law
which is expressly made retrospective and must stand the scrutiny of law.
The Board or the State of Uttar Pradesh did not invalidate degrees awarded
by the Vishwavidyalyas in the past during the period the Vishwavidyalya
was recognized and degrees granted were given equivalence. The
recognition was withdrawn in the year 2009.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : July 21, 2016
W.P.(C) 7284/2015
ARUN TOMAR
versus
UNION OF INDIA & ANR ..
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOGW.P.(C)
HON’BLE MS. JUSTICE PRATIBHA RANI
Print Page
which is expressly made retrospective and must stand the scrutiny of law.
The Board or the State of Uttar Pradesh did not invalidate degrees awarded
by the Vishwavidyalyas in the past during the period the Vishwavidyalya
was recognized and degrees granted were given equivalence. The
recognition was withdrawn in the year 2009.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : July 21, 2016
W.P.(C) 7284/2015
ARUN TOMAR
versus
UNION OF INDIA & ANR ..
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOGW.P.(C)
HON’BLE MS. JUSTICE PRATIBHA RANI
Saturday, 26 September 2015
Whether vested rights can be enforced after repeal of statute under which that right had accrued?
At this juncture, we would like to quote the following passage
from Commissioner of Income Tax, U.P. v. M/s. Shah Sadiq
and Sons (1987) 3 SCC 516
“14. Under the Income Tax Act of 1922, the
assessee was entitled to carry forward the losses
of the speculation business and set off such losses
against profits made from that business in future
years. The right of carrying forward and set off
accrued to the assesee under the Act of 1922. A
right which had accrued and had become vested
continued to be capable of being enforced
notwithstanding the repeal of the statute under
which that right accrued unless the repealing
statute took away such right expressly or by
necessary implication. This is the effect of Section
6 of the General Clauses Act, 1897.
In this case the 'savings' provision in the
repealing statute is not exhaustive of the rights
which are saved or which survive the repeal of the
statute under which such rights had accrued. In
other words, whatever rights are expressly saved
by the 'savings' provision stand saved. But, that
does not mean that rights which are not saved by
the 'savings' provision are extinguished or stand
ipso facto terminated by the mere fact that a new
statute repealing the old statute is enacted. Rights
which have accrued are saved unless they are
taken away expressly. This is the principle behindSection 6(c) of the General Clauses Act, 1897. The
right to carry forward losses which had accrued
under the repealed Income Tax Act of 1922 is not
saved expressly by Section 297 of the Income Tax
Act, 1961. But, it is not necessary to save a right
expressly in order to keep it alive after the repeal of
the old Act of 1922. Section 6(2) saves accrued
rights unless they are taken away by the repealing
statute. We do not find any such taking away of
the rights by Section 297 either expressly or by
from Commissioner of Income Tax, U.P. v. M/s. Shah Sadiq
and Sons (1987) 3 SCC 516
“14. Under the Income Tax Act of 1922, the
assessee was entitled to carry forward the losses
of the speculation business and set off such losses
against profits made from that business in future
years. The right of carrying forward and set off
accrued to the assesee under the Act of 1922. A
right which had accrued and had become vested
continued to be capable of being enforced
notwithstanding the repeal of the statute under
which that right accrued unless the repealing
statute took away such right expressly or by
necessary implication. This is the effect of Section
6 of the General Clauses Act, 1897.
In this case the 'savings' provision in the
repealing statute is not exhaustive of the rights
which are saved or which survive the repeal of the
statute under which such rights had accrued. In
other words, whatever rights are expressly saved
by the 'savings' provision stand saved. But, that
does not mean that rights which are not saved by
the 'savings' provision are extinguished or stand
ipso facto terminated by the mere fact that a new
statute repealing the old statute is enacted. Rights
which have accrued are saved unless they are
taken away expressly. This is the principle behindSection 6(c) of the General Clauses Act, 1897. The
right to carry forward losses which had accrued
under the repealed Income Tax Act of 1922 is not
saved expressly by Section 297 of the Income Tax
Act, 1961. But, it is not necessary to save a right
expressly in order to keep it alive after the repeal of
the old Act of 1922. Section 6(2) saves accrued
rights unless they are taken away by the repealing
statute. We do not find any such taking away of
the rights by Section 297 either expressly or by
implication.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4476 OF 2015
(ARISING OUT OF SLP (C) NO. 24330 OF 2011)
COMMISSIONER OF INCOME TAX-19
MUMBAI
V
M/S. SARKAR BUILDERS
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4476 OF 2015
(ARISING OUT OF SLP (C) NO. 24330 OF 2011)
COMMISSIONER OF INCOME TAX-19
MUMBAI
V
M/S. SARKAR BUILDERS
A.K. SIKRI, J.
Citation; (2015) 7 SCC 579
Citation; (2015) 7 SCC 579
Sunday, 31 March 2013
When change in law will operate retrospectively?
Reference may also be made upon the decision of this Court in Anant Gopal Sheorey v. State of Bombay AIR 1958 SC 915 where the legal position was stated in the following words: "4. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; The Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.
SUPREME COURT OF INDIA
Print Page
SUPREME COURT OF INDIA
Ramesh Kumar Soni Vs. State of Madhya Pradesh on 26 February, 2013
[Criminal Appeal No. 353 of 2013 arising out of S.L.P. (CRL.) No.5663 of 2011]
T.S. THAKUR, J.
Citation:(2013) 14 SCC 696
Citation:(2013) 14 SCC 696
Monday, 20 August 2012
Whether Hindu succession amednment Act 2005 is retrospective in nature?
Similar is the consequence of the words "shall become"...a coparcener in the amended Section 6 of the HSA. This becoming of a coparcener cannot take away vested rights prior to the legislation being brought into effect.
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Bombay High Court
Ms. Vaishali Satish Ganorkar & Anr vs Mr. Satish Keshaorao Ganorkar & ... on 30 January, 2012
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