advocatemmmohan
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Leasehold estate
The Lease Agreement is not registered – there is clear understanding about rate of rent and terms and conditions of lease between the parties evidencing correspondences – suit for recover of rent is maintainable – pending case, Bank vacated some portion of building – Bank directed to hand over the possession with out any suit for recovery = GULAB CHAND BHORA & ORS. … APPELLANT (S) VERSUS PUNJAB NATIONAL BANK & ANR. … RESPONDENT (S) = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40957
The Lease Agreement is not registered – there is clear understanding about rate of rent and terms and conditions of lease between the parties evidencing correspondences – suit for recover of rent is maintainable – pending case, Bank vacated some portion of building – Bank directed to hand over the possession with out any suit for recovery … Continue reading
Sec. 45 Karnataka Land Reforms Act – cultivate tenant = HARSHA V. RAI Vs. STATE OF KARNATAKA & ANR THROUGH LRS published in judis.nic.in/supremecourt/filename=40860
Sec. 45 Karnataka Land Reforms Act – Cultivate tenant – by1st of March, 1974 one must be a cultivating tenant – with out framing proper question , no case is to be determined – Hence the Apex court remanded the case on two counts 1.whether the property said to have been given on lease to … Continue reading
Section 4 of the Act reads as under: “4. Fixation of Fair Rent. – (1) The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections: (2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building. 3) The fair rent for any non-residential building shall be twelve per cent gross return per annum on the total cost of such building. 4) The total cost referred to in sub-section (2) and sub- Section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in schedule 1 as on the date of application for fixation of fair rent. Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that portion of the site on which the building is constructed and of a portion upto fifty per cent, thereof of the vacant land, if any, appurtenant to such building the excess portion of the vacant land, being treated as amenity; Provided further that the cost of provision of amenities specified in Schedule 1 shall not exceed- i) in the case of any residential building, fifteen per cent; and ii) in the case of any non-residential building, twenty- five per cent, of the cost of site in which the building is constructed and the cost of construction of the building as determined under this section.” From the principles set out in sub-Sections (2) to (4) of Section 4 it is apparent that market value of the site on which the building is constructed is an important factor to be taken into consideration for fixing the fair rent of the building. 15. Reverting to the facts of this case, we find that the appellants are tenant of three premises of which the respondents are the landlords. Out of the three premises, the first premises is a non-residential building constructed on land bearing D.No.23, T.T.K. Road, Chennai relating to which fair rent has already been determined by the Rent Controller in RCOP NO. 1046 of 1994. In the said case, the Rent Controller (Small Causes Court), Chennai by judgment dated 28.6.1996 determined the market fair rent on accepting the market value of the land at Rs.25 lakhs per ground. Against the said judgment, appeals have been preferred by both the appellant-tenants and the respondent-landlords but no order of stay has been passed by the appellate authority; matter is still pending. With regard to rest two rented premises, the building are situated on the adjacent land bearing D.No. 22, TTK Road, Chennai which are the subject matter of dispute. The mere fact that the appeal filed by appellants and respondents remain pending for disposal for more than 8 years and during the pendency the respondent-landlord filed two petitions under Section 4 of the Act before the Rent Controller, cannot be made a ground to deprive the appellants-tenants of their legitimate right to rely on a market value of adjacent land (D.No. 23, TTK Road, Chennai) already determined by the Rent Controller. Even if the appeals are dismissed by the appellate authority, the market value of the adjacent land as determined will remain Rs. 25 lakhs per ground. In the cases in hand, it was not open to the appellate authority to ignore the market value of the adjacent land already determined on the ground of pendency of an appeal. The High Court failed to appreciate the aforesaid fact though it was a fit case for the High Court to interfere under Article 227 of the Constitution of India. 16. In the result, the appeals are allowed in part; the impugned judgments of the Appellate Authority dated 14.10.2006 as affirmed by the High Court, so far as it relates to “market value of the land” is concerned, are set aside; Appeals, RCOP No. 1393, 1394, 1404 and 1405 of 2004 are remitted to the appellate authority (learned VIIIth Judge, Court of ‘Small Causes Court’, Chennai) for determination of limited issue relating to the market value of the land on which the building premises is situated (D.No. 22, TTK Road, Chennai-18) taking into consideration the evidence on record including Exh.A-4, Exh.A-9 and the market value of the adjacent land as was determined by the Rent Controller in RCOP No. 1046 of 1994, etc., preferably within six months. 17. So far as the findings of the appellate authority with respect to ‘classification of building’, ‘depreciation’, ‘plinth area’, ‘construction charges’ and of basic amenities of the petition building as affirmed by the High Court are not interfered with by this Court and they are upheld. There shall be no order as to costs.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5218-22 OF 2012 (ARISING OUT OF SLP(C) NO.20550-20554 OF 2008) V.S. KANODIA ETC. ETC. … APPELLANTS VERSUS A.L.MUTHU (D) THR. LRS. & ANR. … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA,J. 1. Leave granted. These appeals have … Continue reading
The supreme court of U.K. =Mexfield Housing Co-Operative Ltd (“Mexfield”) is a fully mutual housing co-operative association, which was founded by a bank as part of a mortgage rescue scheme, ie with a view to buying mortgaged properties from individual borrowers who are in difficulty, and then letting the properties back to them. In that capacity, it acquired a number of residential properties, which it then let out to the former owner-mortgagors, who, in the normal way for tenants of a fully mutual housing co-operative, were required by its rules to be members of Mexfield.
Michaelmas Term [2011] UKSC 52 On appeal from: [2010] EWCA Civ 811 JUDGMENT Berrisford (FC) (Appellant) v Mexfield Housing Cooperative Limited (Respondent) before Lord Hope, Deputy President Lord Walker Lady Hale Lord Mance Lord Neuberger Lord Clarke Lord Dyson JUDGMENT GIVEN ON 9 November 2011 Heard on 5 and 6 October 2011Appellant Respondent Mark Wonnacott … Continue reading
land acquisition act = private land with tenancy encumbrances when acquired comparable sale can be adopted and land is worth for open market value as it is private land and not saddled with conditional purchase. Let us assume the value of a property which is not subject to any lease is Rs.Ten lakhs. If that property was subject to a lease and if the possession was with the lessee, a purchaser will offer only Rs.Five lakhs as he will be purchasing a property with an encumbrance and will not be getting physical possession. But when the property subject to a lease is acquired, under the Land Acquisition Act, 1894, what is acquired is not only the landlord’s right, title and interest, but also the lessee’s right and interest. In other words the property with all rights, free from
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8539 OF 2011 (Arising out of SLP (C) No. 982/2009) Rajendra Vassudev Deshprabhu (dead) Through Lrs. & Ors. … Appellants Vs. Deputy Collector (Retd.) & Land Acquisition Officer, Panaji … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave … Continue reading
West Bengal Premises Tenancy Act – s.13(6) – Notice for termination of tenancy – Validity of – Eviction suit – Decreed by trial court – First appellate court, however, set aside the decree holding that the notice of termination of tenancy was not valid as it did not end with the month of tenancy – High Court affirmed the decree of trial court – Respondent-tenant filed SLP – Matter remitted back to High Court to consider the validity of the notice of termination of tenancy having regard to the fact that the rent note / agreement of tenancy was unregistered – High Court affirmed the order of first appellate court holding that the notice of termination of tenancy fell short of the requirement stipulated by s.13(6) of the Tenancy Act – On appeal, held: Non-registration of the rent note /agreement of tenancy was rendered insignificant in view of the pleadings of the parties on the question of month of tenancy – The defendant did not question the facts material to the creation of the tenancy – Specific averment in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was overlooked by the first appellate court – The ejectment notice having been served on 15th January, 2000, the defendant-tenant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff – The first appellate court wrongfully held that since the tenancy in the instant case had started on the 11th day of the English Calendar month, in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the end of February, 2000 – Even if the unregistered rent note / agreement of tenancy was executed on a date other than the first of English or any other calendar month, the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month – Decree passed by trial court restored – Transfer of Property Act, 1882 – s.106. The plaintiff-appellant filed a suit for eviction and recovery of possession and mesne profits against the respondent. The plaintiff claimed that the suit property was let out to the respondent on month to month basis. The tenancy was, according to the plaintiff, for a period of five years only and was determined in terms of a notice issued under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. The trial court decreed the suit. Aggrieved, the tenant appealed to the first appellate court, which set aside decree passed by the trial court. On second appeal, the High Court set aside the order passed by the first appellate court and affirmed the judgment and decree passed by the trial court. The respondent-tenant preferred civil appeal by way of special leave petition which was allowed by this Court and the matter remitted back to the High Court to consider the validity of the notice of termination having regard to the fact that the agreement of tenancy executed between the parties was an unregistered document. The High Court, pursuant to the said order, examined the effect of the unregistered document and held that the same could be used in evidence for a collateral purpose and, when so used, the notice of termination of tenancy issued on behalf of the landlady fell short of the requirement stipulated by Section 13(6) of the West Bengal Premises Tenancy Act. The High Court accordingly dismissed the appeal and affirmed the dismissal of the suit by the First Appellate Court. The appellant filed the instant appeal assailing the correctness of the said judgment and order of the High Court. =Allowing the appeal, the Court HELD:1. The question regarding validity of the notice of termination can be examined by reference to the averments made in the pleadings of the parties. It is evident from a plain reading of the assertions in the plaint and the written statement that the defendant did not question the facts material to the creation of the tenancy nor was it disputed that the tenancy was a month to month tenancy on payment of a rent of Rs.500/- for every English Calendar month. It is true that the defendant-respondent had disputed the service of the notice terminating the tenancy of the defendant as also its validity and sufficiency but it is equally true that the legality of the notice was not assailed on the ground that the notice did not conform to the month of tenancy. As a matter of fact the assertion made by the appellant that the monthly rental of Rs.500/- was payable according to the “English Calendar Month” was not denied by the defendant in the written statement nor was any suggestion to the contrary made as was sought to be done at a later stage of the litigation between the parties. Such being the position, it was for all intents and purposes agreed and accepted between the parties that the rent settled for the demised premises was payable according to the English Calendar month. The issue related to the validity of the notice of termination, which had to be answered on the admitted premise that the tenancy was on a month to month basis and the rent of Rs.500/- p.m. was payable according to the English Calendar month. [Paras 7, 10] [939-D; 942-A-D; 941-G-H] 2. The trial court rightly examined the question of legality of the service of the notice on the basis of the available material and the pleadings on the subject and came to the conclusion that the notice in question received by the wife of defendant-tenant was duly served upon the defendant on the 15th January, 2000. The trial court further held that the ejectment notice having been served on 15th January, 2000, the defendant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff. The issue was accordingly answered in favour of the plaintiff and against the defendant-respondent. The first appellate court, however, took a contrary view. It held that the notice of termination of tenancy was not valid as it did not end with the month of tenancy of the defendant. Relying upon the stipulation contained in the tenancy agreement, the first appellate court held that the tenancy in the instant case had started on the 11th day of the English Calendar month and that in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the 29th February, 2000. The notice was accordingly held to be invalid and the suit filed by the appellant liable to be dismissed. In taking that view, the appellate court failed to appreciate that even when the unregistered agreement of tenancy had been executed on 11th of September, 1993, the same did not mean that the month of tenancy would commence from the 11th of every succeeding month, over the period for which the same was created. The first appellate court also failed to appreciate that even when the rent note/agreement of tenancy was executed on a date other than the first of English or any other calendar month the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month. That there was a specific averment made in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was also overlooked by the First Appellate Court. That the said averment had not been disputed by the tenant was also not noticed by the first appellate court and even by the High Court. These facts were important and held the key to the determination of the question whether the notice had validly terminated the tenancy. The High Court had in the first order passed by it correctly held the notice of termination of tenancy to be legally valid. After the matter was remanded back to it to consider the effect of non-registration of the rent note/agreement of tenancy it has taken a view that is not appealing. It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof. [Para 11] [942-E-H; 943-A-G] 1.3. The impugned order passed by the High Court and that passed by the first appellate court are hereby set aside. Consequently, the judgment and decree passed by the trial court shall stand restored. [Paras 12] [943-H; 944-A] CIVIL APPLLATE JURISDICTION : Civil Appeal No. 10053 of 2010. From the Judgment & Order dated 16.09.2009 of the High Court at Calcutta in Second Appeal No. 29 of 2006. S.B. Upadhyay, Dharmendra Kumar Sinha, Santosh Mishra for the Appellant. Pijush K. Roy, Mithilesh Kumar Singh for the Respondent
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 10053 OF 2010 (Arising out of SLP (C) No.34267 of 2009) Shibani Basu …Appellant Versus Sandip Ray …Respondent JUDGMENT T.S. THAKUR, J. 1. Leave granted. 2. This appeal by special leave is directed against a judgment and order dated 16th September, 2009 … Continue reading
T.P.Act – S.111 – Demised property belongs to Wakf – father (original tenant) died – suit filed against and suit notice issued to only one of the sons leaving other legal heirs – Maintainability of the suit on the face of non-joinder of all the legal heirs. Implied surrender of possession raised – Mere abandonment of possession does not satisfy doctrine of surrender. Whether there is need to issue quit notices separately to each of the legal heirs – On the death of original tenant, tenancy rights devolve on his heirs and all of them will be joint tenants under a single tenancy – Quit notice issued to one of them as also suit against him is good. >HELD: A tenancy can be determined in accordance with Section 111 of the Transfer of Property Act. According to clauses (f) & (g) of Sectgion 111 of T.P.Act, a lease of immovable property can be determined by express surrender or by implied surrender. Whether there has been implied surrender on the part of the other legal heirs of the deceased tenant or not is the moot question.
THE HON’BLE SRI JUSTICE T.CH.SURYA RAO SECOND APPEAL NO.490 OF 1999 10/03/2000 S.A.Wali Quadri petitioner Sadar Anjuman-e-Islamia, Rep. By its Secretary respondent <T.P.Act – S.111 – Demised property belongs to Wakf – father (original tenant) died – suit filed against and suit notice issued to only one of the sons leaving other legal heirs – … Continue reading
Stamp Act, 1899-ss. 2(14), 33, 35, 37 and 48B-Impounding of document-In a suit photocopy of a document accepted in secondary evidence-On the ground that original was lost-Original document bearing the stamp of sufficient amount, but of improper description-Order of admission of the document in secondary evidence set aside-Order for impounding the document-Correctness of-Held : Impounding of a document can be done only when the document is an instrument within meaning of s. 2(14) i.e. original document-Photocopy of a document cannot be impounded-It also cannot be accepted as secondary evidence-Madhya Pradesh Stamp Rules, 1942-r. 19-Evidence Act, 1872-s. 63. Agreement was entered into by the parties herein. Such agreement was required to be affixed a stamp of Re. 1/- under Schedule I, Item 42 of Stamp Act, 1899. The document was affixed with a notorial stamp of Rs. 4/- instead under the statutory provision. In the suit between the parties, appellant filed an application for acceptance of the photocopy of the agreement as a secondary evidence, on the ground that original thereof was stolen. Trial Court admitted the same as secondary evidence. In a Writ Petition, against the order, High Court setting aside the order of trial court, remitted the matter to decide the question as to whether a photocopy of an improperly stamped original document could be received as secondary evidence. Trial Court ordered for impounding of the document, it being insufficiently stamped. Document was sent to the Collector of Stamps for affixing appropriate stamp duty. Challenge to this order was dismissed by trial court in Review Petition. In Writ Petition, thereagainst, High Court held that such document could not be admitted in evidence, neither could it be impounded nor accepted in secondary evidence. Hence the present appeal. The question for consideration was : Whether the Court could impound the photocopy of the instrument (document) of improper description exercising its power under the provisions of the Indian Stamp Act , 1899 ?
CASE NO.: Appeal (civil) 4696 of 2007 PETITIONER: Hariom Agrawal RESPONDENT: Prakash Chand Malviya DATE OF JUDGMENT: 08/10/2007 BENCH: B.N. AGRAWAL,P.P. NAOLEKAR & P. SATHASIVAM JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Civil)No.12573 of 2006) P.P. NAOLEKAR, J.: 1. Leave granted. 2. The facts necessary for deciding … Continue reading
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