Whether Partition of Joint Family Property can be proved by Entries in Revenue Record

Wednesday, 28 August 2019

Whether partition of joint family property can be proved by entries in revenue record?

 The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2653 of 1972

Decided On: 21.02.1995

Digambar Adhar Patil Vs.  Devram Girdhar Patil (Died) and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and B.L. Hansaria, JJ.

Citation: AIR 1995 SC 1728

1. Substitution allowed.

2. This appeal by special leave arises from the judgment of the Bombay High Court in Special Civil Application No. 1097 of 1968 dated April 26, 1972. The respondents filed an application under Section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948, (for short, 'the Act') to determine the price payable to the appellant to purchase 8 acres 26 guntas of land which was admittedly in his possession as a tenant. The Tribunal below under the Act found that the respondent No. 1 was is possession of 54 acres of land. In other words, in excess of 48 acres, which in the ceiling limit prescribed under the Act. Therefore, he was not entitled to purchase the land in question from the appellant. The High Court found that the conclusion reached by the Tribunals was vitiated by personal law, namely, Hindu Law and also by evidence on record.

3. We are concerned in this case with the land held by the respondent's minor son to the extent of 7 acres 34 guntas and the land said to have been allotted to the share of his brother by name, Ram Chander, at a partition between them. The High Court has held that by operation of provisions of Section 32B of the Act, the land which the respondent held as an owner and tenant alone should be taken into consideration in determining the area of ceiling limit. The land cultivated by the respondent belonging to his minor son was not as a tenant but as a guardian of his minor son. The land allotted to his brother was evidenced by the entries in the Record of Rights and, therefore, the oral evidence coupled by those entries established that there was a partition between him and his brother Ram Chander and thereby the said land stood excluded. Even assuming that the land belonging to his minor son and cultivated by the respondent was considered to be either held as a tenant or as a member of the joint family, the total land held by the respondent was within the ceiling limit and therefore, he is entitled to purchase the land of the appellant to the extent of 8 acres 26 guntas cultivated as a tenant by the respondent under Section 32B of the Act. Accordingly, it directed the Mamlatdar to conduct the enquiry under Section 32G and remanded the matter for fixing the price. Thus this appeal by special leave.

4. It is contended for the appellant that three Tribunals below, namely, Mamlatdar, appellate authority and the Land Tribunal concurrently held that the respondent was in possession of 54 acres 23 guntas. In other words, in excess of the ceiling limit. It is a finding of fact based on appreciation of evidence. The High Court, therefore, while exercising the revisional power under Article 227 of the Constitution should not have embarked upon appreciation of evidence to reverse the finding of fact recorded by the Tribunal below. It is also contended that the definition of the person includes joint family and the Act does indicate that the land belonging to the minor son should be included in the holdings held by the respondent-tenant. If that land is included, it would be beyond the ceiling limit. It is also contended that the partition said to have been effected between the respondent and his brother Ram Chander was not evidenced by any documentary evidence which was claimed to be in the possession of respondent but was denied by Ram Chander. Therefore, the High Court was not right in reversing the concurrent findings recorded by the Tribunals below.

5. We find no force in the contention. Section 32B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 guntas. The area of dispute is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is includible in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the Tribunals below negatived it on two grounds, namely, in the cultivation column of the Revenue records, it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.

6. The High Court, therefore, was right in its conclusion that the land allotted to the brother of the respondent, namely, Ram Chander should be excluded. If that land is excluded necessary conclusion is that the respondent was within the ceiling limit. Consequently he is entitled to purchase the land of the appellant who is the owner under the provisions of the Act as he is a deemed tenant on the tiller date under Section 32 of the Act. Whether the respondent is in excess of the land or not would be considered while computing the holding as ordered by the High Court in its remand order. The appeal, therefore, does not warrant interference. It is accordingly dismissed.

Whether it is Necessary to seek Cancellation of Sale Deed if it was Executed during Pendency of Suit

Saturday, 26 October 2019

Whether it is necessary to seek cancellation of sale deed if it was executed during pendency of suit?

 In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which the vendor of Bala Mallaiah, Defendant 1 was found to be having share only to the extent of 14/104th.  { Para 48}

 Therefore, it is settled legal position that the effect of Section 52 is not to render transfer effect during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit and the pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. Therefore, in the present suit defendant No. 2 is bound by the decree which may be passed against defendant No. 1. Admittedly, by virtue of compromise decree in R.A. No. 272/2004 defendant No. 1 is aware that the suit property was allotted to the share of plaintiffs and he had no right title and interest so as to transfer the same in favour of defendant No. 2 by executing registered sale deed dated 02.05.1997 as per Ex. D1. In spite of knowing consequences of the same, defendant No. 1 executed the sale deed during the pendency of suit bearing O.S. No. 45/1994. Therefore, the said sale deed is hit by Section 52 of Transfer Property Act. Though, it cannot be held as void ab initio, as held by the Hon'ble Supreme Court in the judgment referred supra, Pendente lite purchaser defendant No. 2 herein is bound by the decree passed in the suit against his vendor.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

RSA No. 1346/2007

Decided On: 24.04.2019

 Gurushantappa  Vs. Shankar and Ors.

Hon'ble Judges/Coram:

P.G.M. Patil, J.

Citation: AIR 2019 Karnat 113

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Mortgagees Right To Sell: Past Situation

Mortgagees Right To Sell: Past Situation
The power of the mortgagee to sell without intervention of the court, before the incorporation of such right under Section 69 of the Transfer of Property Act, 1882, was a subject-matter of controversy and divergent views.

This power of sale, a feature of the English mortgage was originally confined to Englishmen or to Indian residents in the Presidency Towns who were conversant with the forms of English mortgage and English law and procedure as administered in the Presidency Towns. In the mofussil, prior to the Transfer of Property Act, there were certain regulations governing the law of mortgages between the parties who were not Europeans. Those regulations did not empower the mortgagee to effect sale of the mortgaged property without the intervention of the court.

Section 69 of the Transfer of Property Act, 1882, was modelled on the English Conveyancing Act, 1881 and the English Law of Property Act, 1925. Section 69 was later remodelled by amending Act 20 of 1929 drawing the principles from the English law.

Section 69 of the Transfer of Property Act, 1882 contains five sub-sections. Sub-sections (1) and (2) as detailed hereunder, deal with the circumstances under which the mortgagee's right to exercise the power of sale without the intervention of the court arises. Sub-sections (3) and (4) respectively dwell on the title of the purchaser from the mortgagee and the manner of deployment of sale proceeds of the mortgaged property by the mortgagee, his duties and responsibilities. Sub-section (5) states that nothing in this section applies to powers conferred before the first day of July, 1882.


The right under Section 69 is as much and as full a right as the right of redemption of the mortgagor. The mortgagee is, in no sense, a trustee for the mortgagor in the matter of the power of sale; as he holds it for protection of his interest and for his benefit. The mortgagee is not debarred from exercising the power of sale, even though the mortgagor files a suit for redemption. So long as the mortgage money is not paid or validly tendered, the mortgagee with full knowledge of a pending suit for redemption and even to defeat the suit can enforce his power of sale under this section.

While clauses (b) and (c) of sub-section (1) require that power of sale without intervention of the court must be expressly conferred on the mortgagee by the mortgage deed, no such conditions need be fulfilled, where the mortgage is an English mortgage and neither of the parties is Hindu, Mohammedan or Buddhist or any sect, race etc., as stipulated under clause (a) of sub-section (1).

Power of sale without intervention of court

The words "power of sale" refer to a clause expressly included in the mortgage deed. They mean conveyancing. The expression has not been defined in the Act. It includes all steps which are necessary to be taken in connection with a sale. The law permits the greatest freedom of contract, unless it is expressly taken away. If any party contends that a particular clause restricts, in any way, the power of parties to enter into a contract, the burden rests on him to show that the words prevent an agreement between the parties.

The power of sale, under Section 69, can be exercised only in the three cases mentioned in clauses (a), (b) and (c) of sub-section (1). The situation of the property is immaterial in cases falling within clauses (a) and (b).

A mortgagee has no right of sale if there is no default in payment of the mortgage money. There can be default in payment of mortgage money only after it has become due, and not before. In cases, where no time is fixed for payment of the mortgage money, there must be a demand for payment before it can be said that the mortgagor has made a default in payment of the mortgage money. It has been held in Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd. v. Kuddus Sahib that where the amount due for principal is not repayable at any particular date, nor is anything stated as to when it is to be repaid, there can be no default in the payment of the principal sum due until there is a demand made for the money.

Section 69(1) (a)

The first case in which the mortgagee can have the power to sell is mentioned in clause (a) of sub-section (1) of Section 69 of the Transfer of Property Act, 1882. It lays down the following conditions for the acquisition of the power, namely: (1) that the mortgage must be an English mortgage, as defined in Section 58(e) of the Transfer of Property Act, 1882, and (2) neither the mortgagor nor the mortgagee must be-
(i) a Hindu, Mohammedan or Buddhist, or
(ii) a member of any other race, sect, tribe, or class from time to time specified in this behalf by the State Government in the Official Gazette.

The power of sale is inherent in the mortgagee, if Conditions (i) and (ii) mentioned above are satisfied. Thus it can be exercised where an English mortgage is executed by a company, which can be said to have no religion3 In L.V. Apte v. R.G.N. Price, the A.P. High Court applied Section 69 to an English mortgage between a company and trustees for debenture-holders, some of the trustees being Hindus.

Section 69(1) (a) is confined only to a select sect of mortgagors and mortgagees who do not belong to the majority communities in India. This section is taken advantage of by corporate bodies who are not natural persons since such bodies are not deemed to belong to any religion. As far as individuals are concerned, this section can be adopted if both the mortgagor and mortgagee do not belong to the religion, race, sect, tribe or class which are excluded from the purview of Section 69(1) (a).

If the conditions in Section 69(1) (a) and Section 69(2) are complied with, mortgagee's power of sale arises suo motu.

It is opined that Section 69(1) (a) is outdated in the present circumstances since the stipulations cannot be applied to the commercial transactions like mortgages, in letter and spirit. No community can be compelled to exclude themselves from a particular commercial venture as it would affect their constitutional rights.

Sections 69(1) (b) and 69(1) (c)

The words "expressly conferred" in clauses (b) and (c) indicate that the inherent power available under clause (a) is not available under clauses (b) and (c).

To bring a case under Section 69(1) (b), it is necessary to establish that

(i) a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage deed, and
(ii) the mortgagee is Government. This clause is applicable only where the mortgagee is the Government and does not extend to any other person. It applies both to the State Governments and the Central Government.

Section 69(1) (c) requires that

(i) a power of sale without the intervention of the court must have expressly been conferred on the mortgagee by the mortgage deed, and

(ii) the mortgaged property, or any part thereof, must, on the date of the execution of the mortgage deed, have been situate within the towns of Calcutta, Madras, Bombay or in any other town, or area, which the State Government may, by notification in the Official Gazette, specify in this behalf.

It is observed that the three cases mentioned in clauses (a), (b) and (c) of sub-section (1) of Section 69 of the Transfer of Property Act are independent and mutually exclusive. Clause (a) applies only where the mortgage is an English mortgage and the parties do not belong to certain religions, or sects, etc. Clause (b) applies to cases where the mortgagee is the Government. Under clauses (a) and (b), it is not necessary that the property mortgaged should be situated in any particular place. It may be situated in any part of India. But an essential condition of clause (c) is that the mortgaged property must be situated within any of the towns or area, specified in the clause.

Conditions for exercise of power

Section 69(2) (a) and Section 69(2) (b) specify the conditions for exercise of the power. These conditions are imperative and cannot be varied by an agreement between the parties. The power to exercise the right of sale arises when

(i) (a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and

(b) default has been made in payment of the principal money, or of part thereof, and

(c) such default has continued for three months after such service; or

(ii) some interest under the mortgage amounting at least to five hundred rupees is (a) in arrear, and (b) remains unpaid for three months after becoming due.

Conditions (i) and (ii) are in the alternative. It is sufficient if any one of them is fulfilled.

The power of sale under Section 69(1) can be exercised by the mortgagee only when the conditions under Section 69(2) are fulfilled.

No notice is necessary when default is made for the payment of interest. It is sufficient that interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

Notice cannot be waived

The notice required by Section 69(2) (a) is not only necessary but is imperative and even the period of three months cannot be curtailed by agreement of the parties.

The Supreme Court in Narandas Karsondas v. S.A. Kamtam held that the conferment of power on mortgagee to sell without intervention of the court in a mortgage deed by itself will not deprive the mortgagor of his right of redemption. The equity of redemption is not extinguished by mere contract for sale. Therefore, until sale is complete by registration the mortgagor does not lose his right of redemption. In view of the fact that only on execution of conveyance ownership passes from one party to another, it cannot be said that the mortgagor lost the right of redemption just because the property was put to auction. The mortgagor has a right to redeem unless the sale of property was complete by registration in accordance with the provisions of the Registration Act.

Section 69(1)(a) of the Transfer of Property Act, 1882 unduly excludes the majority communities in India from exercising the power of sale available for an English mortgagee. This section appears to have been enacted only for the transactions between mortgagors and mortgagees who are English people or people of English origin.

Section 69(1) (a)a blot on statute

When the debate on uniform civil code in India is hotting up amongst the law-makers and the general public, retention of Section 69(1) (a) of the Transfer of Property Act, 1882 is a blot on the statute-book. This section is a clear discrimination between religious communities in commercial transactions in India.

Section 69(1) (a) of the Transfer of Property Act, 1882 has lost its relevance in the present-day secular circumstances. English mortgage is rarely resorted to by the lenders like banks in view of the religious discrimination in the section itself and stamp duty and registration expenses being heavy to be borne by the mortgagors.

It is suggested that an amendment to Section 69 of the Transfer of Property Act is the need of the hour deleting the portion regarding restriction of the power of sale without intervention of the court only to certain religious communities.

The power of sale under Section 69(1) (c) of the Transfer of Property Act can be exercised only when the mortgaged properties are situated within certain towns. The restriction in respect of location of the properties within certain towns for the purpose of Section 69(1) (c) might have been a carefully considered decision at the time when the section was inserted into the Act. It protects the gullible rural masses from the usurious moneylenders. Since then, the situation has undergone changes and the people in the rural sector are prudent enough to know the implications of mortgage transactions.

Mortgagees Right To Sell: Present Situation

At present, an attempt has been made to change the situation by passing the “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Act 54 of 2002)”, which protects the interests of the banks and other financial institutions by providing ways to recover their amounts by selling the assets of the mortgagor.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, fondly called by bankers as Securitisation Act, has recently been enacted conferring powers on banks and financial institutions, if they are secured creditors, to realize the securities by sale etc., without intervention of court. The Act contains a provision overriding the provision of Section 69 of the Transfer of Property Act, 1882. Sub-section (1) of Section 13 of the said Act reads as under:

"13. (1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such creditor in accordance with the provisions of this Act."

The provisions of the Act have been made applicable exclusively to banks and financial institutions as secured creditors to enforce their security interest with a view to recovering their debts. That is, if the banks and financial institutions are secured creditors having lent against securities like mortgage of immovable property, charge, hypothecation they can take over and sell such securities after giving 60 days' notice to the borrowers so as to adjust the loan, without resort to litigation in a competent court of law. The provisions of the Act cannot be considered to have been extended to the secured creditors in general. In a nutshell, the provisions of Section 69 of the Transfer of Property Act, 1882 can be ignored by the banks and financial institutions in the matter of recovery of their debts ex curia whereas other creditors have to file a suit in a competent court for recovery of the loan. Otherwise, Section 69 of the Transfer of Property Act, 1882 still remains on the statute and is applicable to other creditors who are not banks and financial institutions. The banks and financial institutions are empowered to short-circuit the legal process to enforce the securities for recovery of their loans while the other creditors such as individuals, association of persons have to undergo the rigmorale of court proceedings. This is a clear discrimination endowing one section with legal favouritism and depriving similarly placed others of such right. Hence the suggestion for the amendment to make the law uniform to all creditors who have lent against mortgage securities.

It is suggested that the stipulation of certain notified towns in Section 69(1) (c) of the Transfer of Property Act, 1882 should be deleted by an amendment since such a stipulation does not have any sanctity or reasonable purpose in the present circumstances.

Recourse to legal proceedings through a court of law for recovery of debts, though secured by mortgage, is not only time-consuming but expensive too. The suggested amendment to Section 69 of the Transfer of Property Act, 1882 will result in enforcement of mortgage security by the mortgagee without resort to court proceedings and will, to some extent, disburden the courts from the current scenario of docket explosion so that the other cases can be adjudicated as expeditiously as possible.

Conclusion
After going through this project, I have come to the conclusion that, section 69(1) (a) of the Transfer of Property Act, 1882 has lost its relevance in the present-day secular circumstances. English mortgage is rarely resorted to by the lenders like banks in view of the religious discrimination in the section itself and stamp duty and registration expenses being heavy to be borne by the mortgagors.

This is because, section 69(1) (a) of the Transfer of Property Act, 1882 unduly excludes the majority communities in India from exercising the power of sale available for an English mortgagee. This section appears to have been enacted only for the transactions between mortgagors and mortgagees who are English people or people of English origin.

Therefore, I have come to the conclusion that an amendment to Section 69 of the Transfer of Property Act is the need of the hour, deleting the portion regarding restriction of the power of sale without intervention of the court only to certain religious communities.


Further, as regards the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 is concerned, there is a clear discrimination endowing one section with legal favouritism and depriving similarly placed others of such right. Hence I would suggest for the amendment to make the law uniform to all creditors who have lent against mortgage securities. This is because this Act is applicable only to banks and financial institutions and not to other types of creditors.

Further, recourse to legal proceedings through a court of law for recovery of debts, though secured by mortgage, is not only time-consuming but expensive too. The suggested amendment to Section 69 of the Transfer of Property Act, 1882 will result in enforcement of mortgage security by the mortgagee without resort to court proceedings and will, to some extent, disburden the courts from the current scenario of docket explosion so that the other cases can be adjudicated as expeditiously as possible.

Therefore, in my view there is an urgent need to amend the provisions of sec.69 of the "Transfer of Property Act, 1882", so that the interest of the secured creditors can be realized more fruitfully and without much delay and harassment.

The author can be reached at: rks_nlu@legalserviceindia.com / Print This Article

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Whether a Person who Contributed Money in Purchase of the Immovable Property can Retain its Possession

Whether a person who has contributed money in the purchase of the immovable property can retain its possession?

A contributor to the purchase consideration for immovable property, only has rights if any, to recover the said purchase consideration from the purchaser and does not acquire any rights in the immovable property or any right to retain possession thereof. 

IN THE HIGH COURT OF DELHI

CS (OS) 2585/2012

Decided On: 24.01.2013

 K.L. Garg   Vs.  Rajesh Garg and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: MANU/DE/0321/2013

1. The plaintiff has instituted this suit for recovery of possession of a portion consisting of two bedrooms, common drawing-dining, kitchen and bathroom of flat on the second floor of property No. 21/13, Old Rajinder Nagar, New Delhi and for mesne profits/damages for use and occupation. It is the case of the plaintiff, that he is the owner of the said flat vide registered Sale Deed dated 18th October, 2004 copy whereof is filed along with the plaint; that the defendants no. 1 to 4 are the son, daughter-in-law and grandchildren of the plaintiff; that the plaintiff on account of the said relationship had allowed the defendants to reside with him in the said flat; however the relationship between the plaintiff and the defendants has soured and the plaintiff does not want the defendants to reside in his flat and though called upon the defendants to vacate the same, the defendants failed to do so. Summons of the suit and notice of the application for interim relief to restrain the defendants from parting with the possession of the said flat to any other person were issued though no interim relief granted.

2. The defendants have filed the written statement pleading, that the suit has been filed merely to harass them; that no cause of action has accrued to the plaintiff against the defendants; that the plaintiff has not approached the Court with clean hands and has concocted the story of the defendants ill treating or harassing the plaintiff; that the defendants no. 1 and 2 had contributed to the purchase consideration of the flat and the defendant no. 1 also used to pay the electricity bills of the said flat; that the plaintiff is a habitual litigant and had also lodged a complaint against another son namely Shri Pankaj Garg and with whom he subsequently compromised; that similarly earlier disputes had arisen between the plaintiff and the defendants and which have subsequently been compromised; that the suit is undervalued; that in fact the defendants had started living in the flat only at the instance of the plaintiff and that the defendants are looking after and caring for the plaintiff. The defendants however do not dispute the receipt of legal notice from the plaintiff demanding possession but allege the same to be false.

3. The suit was listed on 14th January, 2013 when finding that the defence of the defendants in the written statement of having contributed to the purchase consideration of the said flat while admitting the Title Deed with respect thereto to be in the name of the plaintiff only did not constitute any defence in law to the claim of the plaintiff for possession, the counsel for the defendants was asked to argue. On his request the matter was adjourned to today.

4. The counsel for the defendants, who states that he is the new counsel though has filed his Vakalatnama, has argued that the plaintiff has not approached the Court with clean hands. He has drawn attention to para 4 of the plaint and contended that the plaintiff has falsely stated that the defendants had harassed the deceased wife of the plaintiff. It is argued that the relationship of the defendants with the deceased wife of the plaintiff, being the mother of the defendant no. 1 and mother-in-law of the defendant no. 2 was very good.

5. It has been enquired from the counsel for the defendants as to whether the said argument even if were to be accepted constitutes a defence to a suit for possession; a decree for suit for possession is not a discretionary one; if the plaintiff is found entitled to possession of a property, relief cannot be denied to him/her merely because he may have on some other aspects not relatable to possession, lied.

6. No reply is forthcoming.

7. This argument, also does not constitute any defence to the claim for possession.

8. Though the defendants have not filed any documents whatsoever, the counsel for the defendants has during the course of hearing handed over photocopy of a letter purported to be written by the plaintiff to the Editor of Veer Arjun Newspaper on 19th December, 2003 withdrawing the earlier advertisement disinheriting the defendants and stating "Shri Rajesh Garg and my grand children has full legal rights for moveable/immoveable property stands in my name i.e. K.L. Garg". A right in the property, on the basis of the said document is claimed.

9. The said document is taken on record.

10. Even though the procedure adopted by the defendants of handing document across the bar is not in consonance with the prescribed procedure but I am afraid even the said document does not show that the defendants have any right to retain possession of the flat aforesaid. All that the said document purports to do is to recall the earlier notice disinheriting the defendants. However, such inheritance can happen only on the demise of the plaintiff and not prior thereto.

11. A contributor to the purchase consideration for immovable property, only has rights if any, to recover the said purchase consideration from the purchaser and does not acquire any rights in the immovable property or any right to retain possession thereof. The only defence thus raised in the written statement is not a material one so as to invite framing of an issue and the plaintiff has become entitled to a decree for possession and mesne profits.

12. The dispute raised in the written statement of under valuation of the suit is a vexatious one, bereft of any particulars. Nothing is stated, as to on the basis of which sale/purchase transaction, the valuation given by the plaintiff is incorrect.

13. Faced with the aforesaid, the counsel for the defendants states that a Memorandum of Understanding (MoU) was entered into between all the family members and the original thereof is in the custody of the plaintiff though a copy thereof is in the custody of the sister of the defendant no. 1 and who is out of station and owing whereto the counsel could not bring the said MoU to the Court today.

14. There is no plea also in the written statement to the said effect.

15. The counsel for the defendants then seeks adjournment by seven days to amend the written statement.

16. The aforesaid request cannot be entertained. Suits cannot be kept pending after they have been heard and to allow parties to amend their pleadings.

17. The suit is thus decreed for possession in favour of the plaintiff and against the defendants no. 1 and 2 for possession of flat aforesaid on the second floor of property No. 21/13, Old Rajinder Nagar, New Delhi. As per Bhagwati Prasad Vs. Chandramaul MANU/SC/0335/1965 : AIR 1966 SC 735 and R.S. Maddanappa Vs. Chandramma MANU/SC/0356/1965 : AIR 1965 SC 1812, a decree for mesne profits follows a decree for possession. However an inquiry under Order 20 Rule 12 has to be held to determine the rate of mesne profits. Considering the nature of the dispute, it is not deemed appropriate at this stage to order such inquiry in as much as the suit has been decreed within six months of institution thereof. Liberty is however given to the plaintiff to apply for such inquiry if the defendants no. 1 and 2 resist the execution of the decree. The plaintiff shall also be entitled to costs equivalent only to court fee of Rs. 25,785/- paid on the plaint. Decree is confined against defendants no. 1 and 2 since the defendants No. 3 and 4 are minors and no steps were taken for appointment of their guardian. The decree sheet be drawn up.

18. The counsel for the defendants at this stage states that he has instructions from the defendants to state that they are willing to give an undertaking to vacate the said flat after the examination of the children (defendants no. 3 and 4) scheduled in March-April, 2013 are over. Liberty is granted to the defendants No. 1 and 2 to file affidavits of undertaking to the said effect and on filing whereof this request shall be considered.

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC [Read Judgment]

Jun 21st 2018, 15:33, by Sukriti

Nitish Kashyap

The Bombay High Court has held that certificate of purchase cannot be conclusive proof of title vis-à-vis joint tenants of a land.

Justice Anuja Prabhudessai held that in case of a joint family property, the certificate of purchase issued in the name of karta or an elder of the family is actually for or on behalf of the joint family.

Case Background

The court was hearing an appeal against judgment of a Joint District Judge, Thane, dated January 24, 1990, wherein compensation for sale of a land in Thane was directed to be divided equally between descendants of co-tenants Vithu and Gajanan.

The government acquired the said piece of land measuring 1 acre 26 gunthas and 8 annas in 1973 for Rs. 57,000 approximately.

Changa Agaskar was the original tenant of the said land and after his death, his two sons, Vithu and Gajanan, used to cultivate the land together as a joint family property.

Vithu claimed that he had purchased the said land in the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural land Act. He further claimed that upon paying the purchase price, the certificate of purchase under Section 32 M of the Act was issued in his favour on July 20, 1966. The original claimant, therefore, claimed that being the exclusive owner, he was entitled to receive the entire compensation amount.

However, descendants of Gajanan claimed that the land was never partitioned and that even after the death of Changa and Gajanan, they continued to cultivate the land as a joint family property. The respondents denied that Vithu was the sole tenant/purchaser of the property. They have stated that Vithu had paid the purchase price of the acquired land out of the sale proceeds of the joint family land. The respondents, therefore, claimed that being the co-tenants of the property, they were entitled to 50 percent of the compensation.

Judgment

After examining the Bombay Tenancy and Agricultural Land Act, the court noted that it is clear that an undivided Hindu family can be a tenant within the meaning of Section 2(18) of the Act. Thereafter, the court looked at the land survey records, mutation entries and said:

“It is thus clear that the original claimant Vithu was not a tenant of the said land in his personal or individual capacity but had only inherited the tenancy rights upon the death of Changa. The original claimant Vithu had therefore failed to prove that he was the sole tenant of the said property. The claimant had also not adduced evidence to prove that the subject property was partitioned during the lifetime of Vithu and Gajanan or that they were cultivating the property or their respective shares separately. The reference court was therefore perfectly justified in holding that the acquired land was a joint family property.”

The land records revealed that the original claimant Vithu had subsequently got his name entered in the survey records, by bracketing the name of Gajanan. He had also purchased the property under Section 32G and a certificate of purchase was issued in his name. It is to be noted that no notice was given to the respondents before deleting/bracketing the name of Gajanan from the survey records, the court said.

Thus, the court rejected the appeal against judgment of the District Judge in Thane and said:

“Under such circumstances, the certificate of purchase issued in the name of Vithu, would be for and on behalf of the joint family. The said certificate would at the most be conclusive proof of purchase against the owner of the land. The tenancy rights of the joint tenants cannot be negated solely on the ground that the certificate of purchase was issued in favour of Karta of a joint family or any elderly person of a joint family. Hence, the certificate of purchase cannot be the conclusive proof of title, vis-a-vis the joint tenants.”

Read the Judgment Here

Can’t Acquire Adverse Possession By Simply Remaining In Permissive Possession For Howsoever Long It May Be: SC

Can’t Acquire Adverse Possession By Simply Remaining In Permissive Possession For Howsoever Long It May Be: SC Exposits Law On Adverse Possession [Read Order] Sep 1st 2018, 07:25, by Sukriti Ashok Kini ‘One who holds possession on behalf of another, does not by mere denial of the other’s title, make his possession adverse so as to give himself the benefit of the statute of limitation.’ Some judgments of the Supreme Court, though does not state anything new, are to be read in an academic point of view. It helps newbie lawyers and law students to know law as it is. The judgment expositing the law on adverse possession by the bench comprising Justice NV Ramana and Justice Mohan M Shantanagoudar, in Ram Nagina Rai vs. Deo Kumar Rai, is one such. Plaintiffs in a title suit claimed to be owners of a property, which was being occupied by the defendants, as permitted by their ancestors. Their case was that defendants got khatian changed without notice to them, showing the defendants to be in possession of the disputed house. The defendants’ case was that they are the owners in possession of the suit house even prior to 1953. RS Khatian, which records they are in possession, was finally published in the year 1970, but the plaintiff filed the title suit only 19 years after its final publication and hence, the suit is barred by limitation. The main contention was that they had perfected the title by adverse possession and, therefore, the plaintiffs are not entitled to recover the possession of the suit house from the defendants. Though the munsiff’s court rejected the plea of adverse possession, the appellate courts found favour with it and dismissed the suit filed by the plaintiffs. The case reached the apex court. Reading of this judgment will give us a clear picture on the law of adverse possession. The bench reiterated the position of law as follows: The burden is on the defendants to prove affirmatively that the bar of limitation prescribed under Article 65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. Thus, it is incumbent on the plaintiffs to file a suit for possession within 12 years from when the possession of the defendants becomes adverse to the plaintiffs. Article 65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. Where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person, whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another’s title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other’s title, make his possession adverse so as to give himself the benefit of the statute of limitation. The acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. There is a lot of difference between simple possession and adverse possession. Every possession is not adverse possession. The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be. Until the defendants’ possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants’ possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property. The defendants are not only required to prove that they have been in possession of the suit property continuously and uninterruptedly, but also need to prove, by cogent and convincing evidence, that there is hostile animus and possession adverse to the knowledge of the real owner. It is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of the adverse user must be communicated at least impliedly to the actual owner of the property. His hostile attitude should be open to the knowledge of the real owner. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner. ‘Animus possidendi’ is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, the defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. A person pleading adverse possession has no equities in his favour. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. Taking note of the evidence on record, the bench observed that except for the change of khatian sometime in the year 1970 by the defendants and the payment of taxes for being in possession of property, no material is produced by the defendants to show whether the possession was really hostile to the actual owner. “There is absolutely nothing on record to show that there was a hostile assertion by the defendants. We do not find that the defendants had hostile animus at any point of time, from the facts and circumstances of this case. The defendants denied the title of the plaintiffs over the suit property only when the suit came to be filed, inasmuch as the defendants have taken such a contention for the first time in their written statements,”, the bench observed. The bench held that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property as it would be in clear violation of the basic rights of the actual owner of the property. On tax receipts and land records, the bench said even assuming that those documents relate to the suit house, they, at the most, depict the possession of the defendants and not their adverse possession. Restoring the Munsiff’s Court Decree, the bench set aside the judgments of appellate courts. Read the Order Here