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High Court of New Zealand

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Transfer of Property Act, 1882: s.52 – Transfer of property by a defendant pending a partition suit – Partition suit found to be not collusive – Decree in partition suit – In terms of decree, the pendente lite transferor found to have only half share in the property and she was allotted only one fourth of the property purchased by the transferee – Suit by transferee for declaration of title and permanent injunction in regard to transferred property – Courts below dismissed the suit – Held: Suit ought not to have been dismissed in entirety even if the sale was hit by the Doctrine of lis pendens – Transferee’s title will be saved in respect of that part of the transferred property allotted to the transferor in the partition suit – Transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. Transfer of Property: Suggestion to Law makers – Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and leads to unnecessary litigation – All these inconveniences, risks and misery could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property – Law Commission and the Parliament much consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures – Also, registration of agreements of sale should be made compulsory to reduce property litigation – Registration Act, 1908 – Legislation. Appeal: Appeal before Supreme Court – Concurrent findings of facts by the three courts below that the partition suit was not collusive – Interference with – Held: Not called for – Constitution of India, 1950 – Article 136. The appellant filed a suit for declaration of his right and title and permanent injunction in regard to the suit property. The case of the appellant was that he purchased the suit property from the second respondent under sale deed dated 11.4.1990 and he was a bona fide purchaser and was unaware of the partition suit between the second respondent and the first respondent who was the step daughter of the second respondent. On 17.3.1994, the said suit for partition was decreed by preliminary decree whereby the two respondents were held entitled to half share each in the properties including the suit property. In the final decree proceedings, the Commissioner divided the suit property in such a manner that nearly three-fourth portion of the suit property was allotted to the share of the first respondent and only about a one-fourth portion was allotted to the share of the second respondent. The first respondent resisted the suit contending that the appellant had purchased the suit property during the pendency of her suit for partition; and that being a purchaser pendente lite, the sale in his favour was hit by the doctrine of lis pendens and, therefore, he could not claim any right in the suit property; and she denied that there was any collusion between her and the second respondent. The second respondent did not contest the suit. The trial court dismissed the suit on the ground that the sale in favour of the appellant was hit by the doctrine of lis pendens. The appeal filed by the appellant was dismissed by the first appellate court. The High Court dismissed the second appeal. Aggrieved, the appellant filed the instant appeal. =Partly allowing the appeal, the Court HELD: 1. The trial court, the first appellate court and the High Court on appreciating the evidence have held that the partition suit was not collusive and that there was a valid reason for a larger portion of the suit property being allotted to the first respondent, plaintiff in the partition suit as the portion allotted to the second respondent had a house therein and to equalize the value, a larger portion (vacant plot) was allotted to the first respondent. There is no reason to interfere on that score. [Para 8] [570-C-D] Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569; Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 – relied on. 2.1. The principle underlying Section 52 of the Transfer of Property Act, 1882 is clear. During the pendency in a court of competent jurisdiction of any suit which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee’s right and title are saved fully or partially. [Para 10] [571-C-H; 572-A] 2.2. In the instant case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by the second respondent in favour of the appellant though not void, did not bind the first respondent. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would, therefore, be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant would be effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction. The suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore, the courts below ought to have decreed the appellant’s suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit. Therefore, the declaration of title with consequential permanent injunction as prayed is granted in regard to that portion of the suit property that was allotted to the second respondent in the partition suit. [Paras 11, 12, 16] [572-B-H; 573-A-B; 576-B] A related suggestion to the Law makers 3.1. Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and unnecessary litigation. At present, a prospective purchaser can find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way to ascertain whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. The inconveniences, risks, hardships and misery as a result of such transfers could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property. A solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. The Law Commission and the Parliament must consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties. [Paras 13, 14] [573-C-H; 574-A-C; 575-C] 3.2. At present in most of the States, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Registration of agreements of sale will reduce property litigation. It will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country. [Para 15] [575-D-G] Case Law Reference: AIR 1973 SC 569 relied on Para 9 (2007) 2 SCC 404 relied on Para 9 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10325 of 2010. From the Judgment & Order dated 01.09.2009 of the High Court of Judicature at Madras in S.A. No. 1141 of 2008. R. Balasubramaniam, B. Karunakaran, V. Balachandran for the Appellant. N. Shobha, Sriram J. Thalapathy, Adhi Venkataraman, S.P. Parthasarthy for the Respondents.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10325 OF 2010 [Arising out of SLP [C] No. 163 of 2010] T.G. Ashok Kumar … Appellant Vs. Govindammal & Anr. … Respondents JUDGMENT R.V.RAVEENDRAN, J. Notice to respondents was issued limited to the question whether the High Court ought to have decreed … Continue reading

Motor Vehicles Act, 1988 – ss. 163A, 166, 168 and 169 – Motor accident – Claim for compensation u/s. 163-A – For the death of owner of the vehicle – Maintainability of the petition questioned – Tribunal holding that petition was maintainable – High Court holding the same as not maintainable – On appeal, held: The claims tribunal in a claim petition, is required to decide all the issues in one go and not in piecemeal – The question of maintainability is connected with the liability of the Insurance Company – Therefore, the matter is sent back to claims tribunal to decide all the issues together. Owner of the insured vehicle died in a road accident while he was driving the vehicle. His dependants filed petition u/s. 163-A of Motor Vehicles Act, 1988 claiming compensation. The Insurance Company questioned the maintainability of the petition stating that it was liable to compensation only for third party and not to the owner. The tribunal held that the petition was maintainable. High Court, in revision, held that it was not maintainable. In the instant appeal, appellants contended that additional premium was paid to cover the risk of the driver of the vehicle and in the policy, persons or classes of persons entitled to drive included the insured and thus the insurance company was liable. =Partly allowing the appeal, the Court HELD: 1.1 The whole object of summary procedure required to be followed by the Claims Tribunal, is to ensure that claim application is heard and decided by the Claims Tribunal expeditiously. The inquiry u/s. 168 and the summary procedure do not contemplate the controversy arising out of claim application being decided in piecemeal. The Claims Tribunal is required to dispose of all issues one way or the other in one go while deciding the claim application. [Para 5] 1.2 The objection raised by the Insurance Company about maintainability of claim petition is intricately connected with its liability which in the facts and circumstances of the case, is dependent on determination of the effect of the additional premium paid by the insured to cover the risk of the driver and other terms of the policy including terms of the policy. Since all issues (points for determination) are required to be considered by the Claims Tribunal together in the light of the evidence that may be led in by the parties and not in piecemeal, it is not proper to consider the rival contentions on merits at this stage. The matter is sent back to the Claims Tribunal. [Para 5] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2164 of 2004. From the Judgment & Order dated 01.10.2002 of the High Court of Punjab & Haryana at Chandigarh in Civil Revision No. 5952 of 2001. B.K. Satija for the Appellants. Manish Singhvi, P.V. Yogeswaran, Jaswant Perraya for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2164 OF 2004 Bimlesh and Ors. …Appellants Versus New India Assurance Co. Ltd. …Respondent JUDGMENT R.M. Lodha, J. The claimants are in appeal by special leave aggrieved by the judgment and order dated October 1, 2002 of the High Court for the … Continue reading

Motor Vehicles Act, 1988 – Motor accident – Death of 36 year old man – Claim for compensation by his six dependants – Awarded by Tribunal – Enhanced by High Court – On appeal, held: Compensation further enhanced recalculating the same by increasing salary by 50% towards future prospects; deducting 30% towards taxes and 25% towards personal expenses and by applying multiplier of 15. Compensation – For motor accident – Deduction of 30% from the income of the deceased towards taxes – Propriety of – Held: If annual income is in taxable range, appropriate deduction towards taxes is proper. After death of a Sub-Inspector of Police aged 36 years, in a motor accident, six of his dependants made a claim for compensation. The Tribunal awarded compensation of Rs. 14,44,600/- with 9% interest p.a. after deducting one third from his gross monthly salary towards personal and living expenses, and by applying multiplier of 13. High Court on appeal enhanced the compensation to Rs. 14,65,776/-. It reached the amount by making addition to income towards future prospects, deducting therefrom 30% towards deduction from salary; by deducting one fourth of income towards personal expenses, and by applying multiplier of 13. The instant appeal was filed for enhancement of compensation contending that deduction of 30% towards taxes was not warranted and that the court should have applied multiplier of 16. =Allowing the appeal, the Court HELD: 1. Wherever the deceased is below 40 years of age and had a permanent job, the actual salary (less tax) should be increased by 50% towards future prospects, to arrive at the monthly income. Where the number of dependants of a deceased are in the range of 4 to 6, the deduction towards personal and living expenses of the deceased should be 25%. In regard to persons aged 36 to 40 years, the appropriate multiplier should be 15. Applying the said principles, compensation in the instant case is recalculated. The compensation is increased from Rs.14,66,600/- to Rs.19,70,250/-. The increased amount shall carry interest at the rate of 6% per annum from the date of claim petition to the date of payment. [Paras 6 and 9] [421-B-C; 422-E] Sarla Verma vs. Delhi Transport Corporation 2009 (6) SCC 121, relied on. 2. The deduction of 30% from the salary is correct. Where the annual income is in the taxable range, appropriate deduction should be made towards tax. In the instant case as the annual income has been worked out as Rs.2,48,292/-, appropriate deduction has to be made towards income-tax. The rate of income tax is a varying figure, with reference to taxable income after permissible deductions and the year of assessment. The High Court has rightly assessed the deduction as 30%. However, it is clarified that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased. [Para 8] [421-H; 422-A-D] Sarla Verma vs. Delhi Transport Corporation 2009 (6) SCC 121, distinguished. Case Law Reference: 2009 (6) SCC 121 Relied on. Para 6 Distinguished. Para 8 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5316 of 2010. From the Judgment & Order daed 20.4.2007 of the HIgh Court of Delhi at New Delhi in F.A.O. No. 250 of 2003. R.K. Khanna for the Appellant. A.K. Raina, Dr. Kailash Chand for the Respondent.

IN THE SUPREME COURT OF INDIA Reportable CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5316 OF 2010 (Arising out of SLP (C) No.668/2008) Shyamwati Sharma & Ors. … Appellants Vs. Karam Singh & Ors. … Respondents JUDGMENT R. V. RAVEENDRAN J., Leave granted. 2. This is an appeal for enhancement of compensation, by the mother, widow, … Continue reading

Motor Vehicles Act, 1988 – s. 166 – Fatal accident of a 22 year old student having brilliant career – Claim for compensation by his parents – Tribunal awarding compensation estimating his monthly income at Rs. 18,000/ Dependency of parents calculated at 1/3 of his income – Cross appeals – High court maintaining estimated income, while holding the dependency as 2/3 of the income – On appeal, held: Income of the deceased should have been estimated at Rs. 25,000/- pm – Deduction of 1/3 of the income justified. Respondents-claimants filed a petition u/s. 166 of Motor Vehicles act, 1988 for the death of their 22 year old son in a motor accident. They made a claim of Rs. 75 lakhs compensation on the premise that while he was doing his studies in U.K., he was earning Rs. 80,000/- per month in a part time job. After competition of his studies, he got an offer in a U.S. Based company at an annual salary of Rs. 18 lakhs. Tribunal passed the award considering his earning capability as Rs. 18,000/- per month and deducting 2/3 thereof as his personal expenses. In view of age of the claimants multiplier of 13 applied. Claimants filed an appeal seeking enhancement in the amount of compensation. Their plea was that dependency of the parents should have been considered at 2/3rd of the income and that expenses incurred during treatment should have been awarded. Cross-objection was filed by the Insurance Company. High court maintained the estimated income of the deceased, but opined that dependency of the claimants should have been at 2/3rd of the income. A sum of Rs. 1,25,000/- was also awarded towards medical expenses. Hence, the present cross-appeals. =Allowing the appeal filed by the claimants and dismissing that filed by the Insurance Company, the Court HELD: 1.1. The fact that the deceased was a brilliant student is not in dispute. He had graduated in Business Administration in U.K. Even as a student, in a job on a part-time basis he was being paid a salary of Rs.80,000/- per month ((UK

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. __3482______OF 2009 [Arising out of Special Leave Petition (Civil) No. 2997 of 2007] ORIENTAL INSURANCE CO. LTD. …APPELLANT VERSUS DEO PATODI & ORS. … RESPONDENTS WITH CIVIL APPEAL NO. _3492_______OF 2009 [Arising out of Special Leave Petition (Civil) No. 3807 of 2007] … Continue reading

Motor Vehicles Act, 1988 – Motor accident – Death of 36 year old man – Claim for compensation by his six dependants – Awarded by Tribunal – Enhanced by High Court – On appeal, held: Compensation further enhanced recalculating the same by increasing salary by 50% towards future prospects; deducting 30% towards taxes and 25% towards personal expenses and by applying multiplier of 15. Compensation – For motor accident – Deduction of 30% from the income of the deceased towards taxes – Propriety of – Held: If annual income is in taxable range, appropriate deduction towards taxes is proper. After death of a Sub-Inspector of Police aged 36 years, in a motor accident, six of his dependants made a claim for compensation. The Tribunal awarded compensation of Rs. 14,44,600/- with 9% interest p.a. after deducting one third from his gross monthly salary towards personal and living expenses, and by applying multiplier of 13. High Court on appeal enhanced the compensation to Rs. 14,65,776/-. It reached the amount by making addition to income towards future prospects, deducting therefrom 30% towards deduction from salary; by deducting one fourth of income towards personal expenses, and by applying multiplier of 13. The instant appeal was filed for enhancement of compensation contending that deduction of 30% towards taxes was not warranted and that the court should have applied multiplier of 16. =Allowing the appeal, the Court HELD: 1. Wherever the deceased is below 40 years of age and had a permanent job, the actual salary (less tax) should be increased by 50% towards future prospects, to arrive at the monthly income. Where the number of dependants of a deceased are in the range of 4 to 6, the deduction towards personal and living expenses of the deceased should be 25%. In regard to persons aged 36 to 40 years, the appropriate multiplier should be 15. Applying the said principles, compensation in the instant case is recalculated. The compensation is increased from Rs.14,66,600/- to Rs.19,70,250/-. The increased amount shall carry interest at the rate of 6% per annum from the date of claim petition to the date of payment. [Paras 6 and 9] [421-B-C; 422-E] Sarla Verma vs. Delhi Transport Corporation 2009 (6) SCC 121, relied on. 2. The deduction of 30% from the salary is correct. Where the annual income is in the taxable range, appropriate deduction should be made towards tax. In the instant case as the annual income has been worked out as Rs.2,48,292/-, appropriate deduction has to be made towards income-tax. The rate of income tax is a varying figure, with reference to taxable income after permissible deductions and the year of assessment. The High Court has rightly assessed the deduction as 30%. However, it is clarified that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased. [Para 8] [421-H; 422-A-D] Sarla Verma vs. Delhi Transport Corporation 2009 (6) SCC 121, distinguished. Case Law Reference: 2009 (6) SCC 121 Relied on. Para 6 Distinguished. Para 8 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5316 of 2010. From the Judgment & Order daed 20.4.2007 of the HIgh Court of Delhi at New Delhi in F.A.O. No. 250 of 2003. R.K. Khanna for the Appellant. A.K. Raina, Dr. Kailash Chand for the Respondent.

IN THE SUPREME COURT OF INDIA Reportable CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5316 OF 2010 (Arising out of SLP (C) No.668/2008) Shyamwati Sharma & Ors. … Appellants Vs. Karam Singh & Ors. … Respondents JUDGMENT R. V. RAVEENDRAN J., Leave granted. 2. This is an appeal for enhancement of compensation, by the mother, widow, … Continue reading

Motor Vehicles Act, 1988 – ss. 163A and 166 – Proceedings both u/ss. 163A and 166 – Permissibility of – Motor accident resulting in death of a person – Application u/s.166 by legal heirs of the deceased – Subsequent application u/s. 163A claiming no-fault compensation – Application u/s. 163A partly allowed by the Tribunal – Thereafter, Tribunal permitting the claimants to proceed with the application filed u/s. 166 – Order of the Tribunal upheld by High Court – =On appeal, held: Claimant must opt/elect to go either for a proceeding u/s. 163A or u/s. 166 but not under both – Claimants having obtained compensation, finally determined u/s. 163A were precluded from proceeding further with the petition filed u/s. 166 – Thus, order of the Tribunal permitting the claimants to proceed further with the petition filed u/s. 166 as upheld by the High Court, not sustainable and is set aside. Deepali Girishbhai Soni and Ors. vs. United India Insurance Co. Ltd. Board (2004) 5 SCC 385 – relied on. Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and Ors. (2001) 5 SCC 175 – referred to. Case Law Reference: 1993 (3) SCC 634 Referred to. Para 5 (2004) 5 SCC 385 Relied on. Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 682 of 2011. From the Judgment & Order dated 15.01.2010 of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 9400 of 2006. M.K. Dua for the Appellant. Brajesh Kumar for the Respondents.

REPORTABLE IN THE SURPEME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 682 OF 2011 (@ SLP (C) No.12743/2010) ORIENTAL INSURANCE CO.LTD. Appellant(s) VERSUS DHANBAI KANJI GADHVI & ORS. Respondent(s) O R D E R Leave granted. This appeal is directed against the judgment dated 15.1.2010 rendered by the learned Single Judge of the … Continue reading

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