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This suit is also for partition and separate possession of the suit property. But for the Will and the gift deed the legal heirs of Moosa Rowther namely the plaintiffs 1 to 5, defendants 1 to 5 were all on record. The contention was that the legatee of item 1 of the suit property and the settlee of the item 2 of the suit properties were not made as parties. As far as the suit is concerned the non-joinder of a co-sharer or co-owners are found to be fatal, the lower court had come to a conclusion and gave a finding to the effect that the non-joinder of the first son of 4th defendant and the sons of 4th defendant as legatee and donees Ex.B.1 and B.2 were not necessary parties to the suit and the suit is not bad for non-joinder of necessary parties. Against the said finding the respondents 4 and 5 did not prefer any cross objection. Therefore, the said principle laid down by this court in the aforesaid judgments are applicable to the facts of this case. It is also not germane for this court to find that the suit is bad for non-joinder of parties. The said parties necessary to the suit were not legal heirs of the said P.K.Moosa Rowther, but for the Will Ex.B.1 and the ‘Hiba gift’ deed Ex.B.2. Therefore, this court is of the view that the ‘Hiba gift’ deed executed by Moosa Rowther in respect of item 2 of the suit property is not valid and the will dated 12.02.1980 in Ex.B1 was valid to an extent of 1/3rd, partition of item 1 of the suit property and that too in favour of the non-heir namely the son of 4th defendant and it is not valid for defendants 3 and 5. Accordingly the remaining 2/3rd share of 1st item of the suit property and the entire 2nd item of the suit property are liable for partition and separate possession as sought for by the plaintiffs. The plaintiffs are entitled to 7/96 share each out of 2/3rd share of item 1 suit property and in the entire 2nd item of the suit properties. Accordingly all the three points are decided against the respondents 4 and 5. Point 4: In view of the findings reached in the previous points that the plaintiffs 1 to 5 are entitled to 7/96 share in the 2/3rd of item 1 and entire item 2 of the suit properties the judgment and decree of the lower court dismissing the claim of the plaintiffs are liable to be set aside and the suit filed by the plaintiffs before the lower court for partition and separate possession of the suit properties is preliminarily decreed to that extent. This point is answered accordingly. Point 5: As per discussion held above, the judgment and decree of the lower court are set aside and the appeal is allowed and the suit filed by the plaintiffs before the lower court is preliminarily decreed to an extent of 2/3rd share of the item 1 and the entire item 2 of the suit properties. Since the parties to the suit and appeal are closely related to each other they are directed to bear their respective costs.
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :07.06.2010 C O R A M : THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.139 of 1996 1. Zubaida 2. Rabia 3. Rukkiah 4. Noorjahan 5. Musthiri .. Appellants -vs- 1. Mahaboob Bivi 2. Jamila Bivi 3. Janasha 4. Sait Bowa 5. Sahul Hameed 6. Rajasekaran 7. J.Sahul … Continue reading
the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’) =In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. =(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2012 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1317 of 1995 1.M.S.Hohammed Jahabar Kadiri (Deceased) 2.Ummal Bajira 3.M.J.K.Haja Shaik Alloudeen 4.Mumtaz Begam … Petitioners P2 to P4 as legal heirs of the deceased 1st petitioner vide order of this Court, dated 24.12.2003 made in CMP.14127/2003 … Continue reading
when the parties are capable to handle their compensation amount and when they are in dire need of the compensation amount, entire amount should be released with out insisting for fixed deposites==It was pointed out that if the money was locked up in a nationalised bank, only the bank would be benefited by the deposit as they give a paltry interest which could not be equated to the costs of materials which were ever increasing. It was further stated that the delay in payment of compensation amount exposed the appellants to serious prejudice and economic ruin.=The prayer in the application of the appellants for release of the 8 amount invested in long term deposits stands allowed. The entire amount of compensation shall be withdrawn and paid to the appellants without any further delay.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1095 OF 2012 [arising out of SLP (C) No. 22521 of 2008] A.V. Padma & Ors. … Appellants Versus R. Venugopal & Ors. … Respondents J U D G M E N T CYRIAC JOSEPH, J. … Continue reading
Partnership Act, 1932: s. 29(2) – Right of transferee under heirs of partner of dissolved partnership – partnership of two brothers being co-owners of property dissolved due to death of one of them – Heirs of deceased partner transferring suit property – Right of transferee in possession to obstruct delivery of possession to auction purchaser in execution of decree in a suit for recovery of dues against erstwhile partnership – Held, partnership having stood dissolved after death of one partner, his heirs could transfer the property, and transferee having been put in possession had right to obstruct delivery of possession to auction purchaser – Code of Civil Procedure, 1908 – Order 21, r.97. Two brothers being co-owners of certain property formed a partnership. One of them died later and with that the partnership firm stood dissolved. Legal heirs of the deceased partner transferred the suit property through a sale deed to the predecessor-in-interest of the respondents. Thereafter a third party filed a suit for recovery of certain amount against the said partnership firm. The vendee was not a party to the said suit. The suit was decreed and the suit property was auctioned in execution of the decree to the appellant, who claimed delivery of possession. The vendee under the sale deed obstructed thereto and the appellant-auction purchaser filed an application for removal of obstruction. The executing court dismissed the application holding that legal heirs of deceased partner could sell the property and the respondents were lawful owner thereof. The appeal of the auction purchaser was dismissed so also was his second appeal. In the instant appeal filed by the auction purchaser it was contended on his behalf that respondents not being the legal heirs of the dissolved firm they did not derive any share and as such they had no right to offer resistance. =2007 AIR 1501, 2006(10 )Suppl.SCR1234, , 2006(14 )SCALE75 , =Dismissing the appeal, the Court HELD:1.1. A distinction exists between the right of a partner to sell a property during subsistence of the partnership and the right of an erstwhile partner to sell the property of the firm after it stood dissolved. In the instant case, the partnership stood dissolved on the death of one partner, whose heirs and legal representatives, therefore, could transfer the property at least to the extent of their own share. [1236-G-H] Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (dead) and thereafter his heirs and Ors., AIR (1966) SC 1300, referred to. 1.2. It has been found as of fact by all the three courts below that after purchasing the property from the heirs and legal representatives of the deceased partner, the respondents had been put in possession and they had been residing therein when the auction sale was effected. They had caused some improvements and a new building had also been constructed by them. As the suit was filed after the deed of sale was executed and registered, the respondents predecessor, in interest was a necessary party. He was not arrayed as a party in the suit. He having been found to be in possession of the property as on the date when the delivery of possession of the property was sought to be effected, a `fortiori’ he had a right to obstruct thereto. B.V. Deepak (NP) for the Appellant. C.S. Rajan, Fazlin Anam and E.M.S. Anam for the Respondent.
CASE NO.: Appeal (civil) 10588 of 1995 PETITIONER: M.V. Karunakaran Appellant RESPONDENT: Krishan Respondent DATE OF JUDGMENT: 15/12/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : Auction purchaser is the appellant before us being aggrieved by and dissatisfied with a judgment and order dated … Continue reading
MOTOR VEHICLES ACT, 1988: Fatal motor accident – Claim petition – Compensation – Computation of income of deceased – Deductions – Multiplier – Compensation towards revision in pay, loss of love and affection and consortium – Held : Deduction from the income of deceased towards HRA, CCA, EPF, GIS, medical allowance should not have been made by Tribunal – As deceased was married, 1/3rd should be deducted from her income towards personal expenses – Annual income of deceased, thus, calculated to Rs. 1,89,640/- – Addition of 30% by way of future prospects allowed – Deceased being 41 years of age, multiplier 14 to be applied – Accordingly compensation calculated to Rs. 22,34,960/- – Further, a sum of Rs. 25,000/- awarded towards loss of love and affection and consortium – Thus, total compensation payable to claimants rounded off to Rs. 22,60,000/- with 6% interest from date of filing of claim petition – Respondents jointly and severally liable to make the payment. The legal heirs and dependants of a victim of fatal motor accident filed a claim petition before the Motor Accident Claims Tribunal, claiming Rs.40,00,000/- as compensation. The deceased was 41 years of age at the time of the accident and was employed. The Tribunal deducted House Rent Allowance, City Compensatory Allowance and Medical allowance etc and calculated her total carry home salary to be Rs.10,000/- (annual equivalent being Rs.1,20,000/-. It made further deduction of 40% towards personal expenses and, applying the multiplier 11, awarded Rs.7,92,000/- as compensation along with 6% interest. The High Court applied the multiplier of 14 and accordingly enhanced the compensation by a further sum of Rs.2,16,000/- In the instant appeal filed by the claimants, it was contended for the appellants that the Tribunal should not have deducted HRA, CCA, EPF, contribution towards Group Insurance Scheme, and repayment of computer advance from the income of the deceased; that the deduction of 40% towards personal expenses was not correct; that the revision of pay scale which had come into force before the death of the victim should have been taken into consideration; and that compensation towards loss of love and affection, consortium and funeral rites should also have been allowed. =Partly allowing the appeal, the Court HELD: (a) Computation of Income : 1.1 The deductions made by the Tribunal on account of HRA, CCA and medical allowance are done on an incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deduction towards EPF and GIS should also not have been made in calculating the income of the deceased. However, the computer advance should not form a part of the monthly income. The monthly income of the deceased thus amounts to Rs.15,351/-. Accordingly, the annual income of the deceased would amount to Rs. 1,84,212/-. [para 11-12] [583-B-C] Raghuvir Singh Matolya & Ors. v. Hari Singh Malviya & Ors., 2009 (5) SCR 379=(2009) 15 SCC 363 and Sarla Verma (Smt.) and others v. Delhi Transport Corporation & Anr., 2009 (5) SCR1098=(2009) 6 SCC 121 – relied on. (b) Deduction for Personal Expenses : 1.2 As the deceased was married, a deduction of 1/3rd should be made to her income by way of personal expenses. After such deduction, the income of the deceased would thus amount to Rs.1,22,808/-, which is rounded off to Rs.1,22,800/-. [para 14] [583-G-H] (c) Revision in Pay Scale : 1.3 In Sarla Verma this Court laid down a `rule of thumb’ with respect to addition in income due to future prospects and observed that the addition should be only 30% if the age of the deceased was 40 to 50 years. In the instant case, the deceased was aged 41 years. Thus, an addition of 30% by way of future prospects is allowed. The annual income of the deceased would thus be Rs.1,59,640/-. Considering the age of the deceased, a multiplier of 14 is to be applied. Accordingly, annual dependency comes to Rs.22,34,960/-. [para 15-16] [584-A-C] Compensation for Loss of Love and Affection and Consortium: 1.4 In cases of fatal motor accidents, some amount must always be awarded by way of compensation for loss of love and affection and consortium. It is of course impossible to compensate for the loss of a life, in the instant case, that of a wife and mother, in terms of money. However, a sum of Rs.25,000/- is awarded for loss of love and affection and consortium. [para 17] [534-D-E] 1.5 Thus, total compensation payable to the claimants-appellants would be Rs.22,59,960/- which is rounded off to Rs.22,60,000/- with interest at the rate of 6% from the date of filing the claim petition. The respondents are jointly and severally liable to make the payment. [para 18 and 20] [534-F- G] Case Law Reference: 2009 (5) SCR379 relied on para 9 2009 (5) SCR1098 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1440 of 2011. From the Judgment & Order dated 07.08.2009 of the High Court of Punjab & Haryana at Chandigarh in First Appeal No. 2662 of 2008. Ashwani Kumar, Kalyan V. for the Appellants. Manjeet Chawla for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1440 OF 2011 (Arising out of Special Leave Petition(C) No.36770/2009) Sunil Sharma & Ors. …Appellant(s) VERSUS Bachitar Singh & Ors. …Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. On 2.08.2006, around 4.40 PM, one Mrs. Sunita … Continue reading
MOTOR VEHICLES ACT, 1988: Fatal motor accident – Claim petition – Compensation – Computation of income of deceased – Deductions – Multiplier – Compensation towards revision in pay, loss of love and affection and consortium – Held : Deduction from the income of deceased towards HRA, CCA, EPF, GIS, medical allowance should not have been made by Tribunal – As deceased was married, 1/3rd should be deducted from her income towards personal expenses – Annual income of deceased, thus, calculated to Rs. 1,89,640/- – Addition of 30% by way of future prospects allowed – Deceased being 41 years of age, multiplier 14 to be applied – Accordingly compensation calculated to Rs. 22,34,960/- – Further, a sum of Rs. 25,000/- awarded towards loss of love and affection and consortium – Thus, total compensation payable to claimants rounded off to Rs. 22,60,000/- with 6% interest from date of filing of claim petition – Respondents jointly and severally liable to make the payment. The legal heirs and dependants of a victim of fatal motor accident filed a claim petition before the Motor Accident Claims Tribunal, claiming Rs.40,00,000/- as compensation. The deceased was 41 years of age at the time of the accident and was employed. The Tribunal deducted House Rent Allowance, City Compensatory Allowance and Medical allowance etc and calculated her total carry home salary to be Rs.10,000/- (annual equivalent being Rs.1,20,000/-. It made further deduction of 40% towards personal expenses and, applying the multiplier 11, awarded Rs.7,92,000/- as compensation along with 6% interest. The High Court applied the multiplier of 14 and accordingly enhanced the compensation by a further sum of Rs.2,16,000/- In the instant appeal filed by the claimants, it was contended for the appellants that the Tribunal should not have deducted HRA, CCA, EPF, contribution towards Group Insurance Scheme, and repayment of computer advance from the income of the deceased; that the deduction of 40% towards personal expenses was not correct; that the revision of pay scale which had come into force before the death of the victim should have been taken into consideration; and that compensation towards loss of love and affection, consortium and funeral rites should also have been allowed. =Partly allowing the appeal, the Court HELD: (a) Computation of Income : 1.1 The deductions made by the Tribunal on account of HRA, CCA and medical allowance are done on an incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deduction towards EPF and GIS should also not have been made in calculating the income of the deceased. However, the computer advance should not form a part of the monthly income. The monthly income of the deceased thus amounts to Rs.15,351/-. Accordingly, the annual income of the deceased would amount to Rs. 1,84,212/-. [para 11-12] [583-B-C] Raghuvir Singh Matolya & Ors. v. Hari Singh Malviya & Ors., 2009 (5) SCR 379=(2009) 15 SCC 363 and Sarla Verma (Smt.) and others v. Delhi Transport Corporation & Anr., 2009 (5) SCR1098=(2009) 6 SCC 121 – relied on. (b) Deduction for Personal Expenses : 1.2 As the deceased was married, a deduction of 1/3rd should be made to her income by way of personal expenses. After such deduction, the income of the deceased would thus amount to Rs.1,22,808/-, which is rounded off to Rs.1,22,800/-. [para 14] [583-G-H] (c) Revision in Pay Scale : 1.3 In Sarla Verma this Court laid down a `rule of thumb’ with respect to addition in income due to future prospects and observed that the addition should be only 30% if the age of the deceased was 40 to 50 years. In the instant case, the deceased was aged 41 years. Thus, an addition of 30% by way of future prospects is allowed. The annual income of the deceased would thus be Rs.1,59,640/-. Considering the age of the deceased, a multiplier of 14 is to be applied. Accordingly, annual dependency comes to Rs.22,34,960/-. [para 15-16] [584-A-C] Compensation for Loss of Love and Affection and Consortium: 1.4 In cases of fatal motor accidents, some amount must always be awarded by way of compensation for loss of love and affection and consortium. It is of course impossible to compensate for the loss of a life, in the instant case, that of a wife and mother, in terms of money. However, a sum of Rs.25,000/- is awarded for loss of love and affection and consortium. [para 17] [534-D-E] 1.5 Thus, total compensation payable to the claimants-appellants would be Rs.22,59,960/- which is rounded off to Rs.22,60,000/- with interest at the rate of 6% from the date of filing the claim petition. The respondents are jointly and severally liable to make the payment. [para 18 and 20] [534-F- G] Case Law Reference: 2009 (5) SCR379 relied on para 9 2009 (5) SCR1098 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1440 of 2011. From the Judgment & Order dated 07.08.2009 of the High Court of Punjab & Haryana at Chandigarh in First Appeal No. 2662 of 2008. Ashwani Kumar, Kalyan V. for the Appellants. Manjeet Chawla for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1440 OF 2011 (Arising out of Special Leave Petition(C) No.36770/2009) Sunil Sharma & Ors. …Appellant(s) VERSUS Bachitar Singh & Ors. …Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. On 2.08.2006, around 4.40 PM, one Mrs. Sunita … Continue reading
Trust and Charities: Bombay Public Trusts Act, 1950 – ss. 50, 51, 19, 20, 79 and 80 – Disputes relating to property of trusts – Permission of Charity Commissioner to institute the suit – Original owner dedicating plot in favour of idol by virtue of gift deed – Trustee of temple taking possession of the property – After eight years, original owner executing sale deed for consideration of Rs. 17,500/- in respect of the same property, in favour of purchaser – Suit for possession of property and claim of Rs. 17,500/- as damages by purchaser – Suit for possession dismissed, however, decreed to the extent of damages to be paid by original owner to purchaser, with future interest – Order passed by trial court set aside by first appellate court as also High Court – On appeal, held: Purchaser of the property was not in possession of the property – They published notice inviting objections before purchasing property – Possession of the property was delivered to the trust, thus, it is obligatory for the purchaser to seek permission from the Charity Commissioner u/ss. 50 and 51 before instituting a civil suit – Also it was incumbent upon the original owner to seek permission from Charity Commissioner before executing a sale deed – Gift being a dedication of idol, transfer in favour of trust was valid transfer and did not require registration – Thus, suit for possession barred in terms of ss. 19, 20, 79 and 80 – Order of High Court is set aside and that of trial court is restored with modification to the extent that trust would pay the purchaser Rs. 17,500/- without interest – Transfer of Property Act, 1882 – s. 123 – Registration – Deeds and documents. In the year 1974, respondent No. 8 dedicated certain property to the idol of Saibaba by way of a gift deed. The possession was handed over to the appellant-temple trust, registered under the Bombay Public Trusts Act 1950, for building a residential accommodation for devotees of the temple run by the appellant-temple trust. In the year 1982, the predecessor of respondent Nos. 1 to 7 intended to purchase the said property and published notice in the newspaper, inviting objections before the purchase of the property. Thereafter, they purchased the property from respondent No. 8 by a registered sale deed for a consideration of Rs. 17,000/- and took possession of the property; and subsequently sent a notice to the appellant-trust to vacate the property but the appellant-trust refused to vacate stating that they were the owners of the property. The predecessor of respondent Nos. 1 to 7 then filed a suit for possession and claimed Rs. 17,500/- as damages against the appellant-temple trust. The trial court dismissed the suit as regards the recovery of the possession of the property. However, the suit was decreed to the extent of damages of Rs. 17,500/- to be paid to the respondent Nos. 1 to 7 by respondent No. 8 with future interest. The first appellate court set aside the order passed by the trial court. The High Court upheld the order passed by the first appellate court. Therefore, the appellant-temple trust filed the instant appeal. =Allowing the appeal, the Court HELD: 1.1. It is evident from the record that it was the case of the plaintiff/respondent that they were not in possession of the plot in question. The finding recorded by the trial court which was not interfered either by the first appellate court or the High Court was that the plaintiff/respondent was not in possession of the suit property in spite of the sale deed dated 14.10.1982 and the possession of the suit property was never delivered to the plaintiff or their legal heirs, respondent Nos. 1 to 7. It can logically be inferred that for this very reason the plaintiff/respondent published a notice in a daily newspaper inviting objections before purchasing the property as in the normal circumstance, if a sale deed is executed by a private party holding title to the suit property in favour of another private party, the question of publishing a notice in the newspaper does not arise since the transaction of sale between two private parties do not normally require issuance of a notice in the newspaper inviting objections. [Para 12] [289-C-G] 1.2. When the disputed plot had already been dedicated in favour of the idol by virtue of a deed of gift, of which the appellant is a trustee, and the same was acted upon, as possession also was delivered to the appellant trust, it was surely necessary for respondent Nos. 1 to 7-purchaser of the suit land and also incumbent upon respondent No. 8-vendor of the sale deed to seek permission from the Charity Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act, 1950 before a sale deed could be executed in regard to the disputed plot and more so before a civil suit could be instituted. Therefore, the dedication of the plot for charitable purpose in the nature of gift having been acted upon as a result of which the possession was also delivered to the appellant-trust, the civil suit filed by the predecessor of contesting respondent Nos. 1-7 for possession was expressly barred in terms of Sections 19, 20, 79 and 80 of the Act. [Para 13] [290-A-D] 1.3. The gift deed was an unregistered instrument and no title could pass on the basis of the same under Section 123 of the Transfer of Property Act, 1882. However, when the document is in the nature of a dedication of immovable property to God, the same does not require registration as it constitutes a religious trust and is exempted from registration. [Para 14] [290-E-F] Narasimhaswami vs. Venkatalingam and Ors. AIR 1927 Mad. 636; Bhupati Nath vs. Basantakumari AIR 1936 Cal. 556; Chief Controlling Revenue Authority vs. Sarjubai AIR 1944 Nag. 33; Pallayya vs. Ramavadhanulu 13 M.L.J. 364 – referred to. 1.4. Even if no final opinion is expressed that the deed of gift executed in favour of the appellant-trust having not been registered, did not confer any title on the appellant-trust, it is not possible to brush aside the contention that the respondent Nos.1 to 7-purchaser of the plot were legally bound by Section 51 of the Act to obtain consent of Charity Commissioner before institution of the suit against the appellant which was admittedly in possession of the property after the gift deed was executed in its favour by the respondent No.8. Section 51 further envisages the right of appeal by the affected party if the Charity Commissioner refuses his consent to the institution of the suit. Prior to this, Section 50 (ii) already envisages that where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust, a suit by or against or relating to public trust or trustees or other although may be filed, consent under Section 51 of the Charity Commissioner is clearly required under Section 51 of the Act. [Paras 15 and 16] [292-E-F; 293-B-D] 1.5. The respondent-purchaser of plot went to the extent of publishing a notice in a local daily inviting objections indicating that he intended to purchase a suit land, but he conveniently ignored the provisions of Section 51 of the Act and refused to apply to the Charity Commissioner before instituting a suit against the appellant-trust even though the possession of the plot was delivered to the appellant-trust way back in the year 1974 and after more than eight years, the respondent No.8-vendor executed a sale deed in favour of the predecessor of respondent Nos.1 to 7. Although the relevance of Section 51 of the Act is clearly apparent and the appellant also raised it before the High Court, the Single Judge of the High Court did not even address the important issue having a legal bearing on the right of the appellant to retain the plot, which, although in the form of a deed of gift, was practically in the nature of dedication to the appellant- trust for the charitable purpose of constructing a `Bhakt Niwas’ for the devotees of Saibaba. In view of the possession of the property by the appellant-trust, it was obligatory on the part of the purchasers of the plot to seek permission from the Charity Commissioner under Section 51 of the Act, to recover the property by filing a suit or initiating a proceeding. [Paras 17 and 18] [293-D-H; 294-A-E] K. Shamrao and Ors. vs. Assistant Charity Commissioner (2003) 3 SCC 563 – referred to. 1.6 Section 79 (1) of the Act lays down that any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, is required to be decided under its statutory force by the Deputy or Assistant Charity Commissioner as provided under the Act and Section 80 bars jurisdiction of the civil court to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act. Thus, when the appellant-trust was in occupation and possession of the property, then the respondent-plaintiff clearly could not have approached the civil court ignoring the specific provision under the Bombay Public Trusts Act, 1950 which laid down the provisions to deal with disputes relating to the property of the trusts. It was the statutory requirement of the Act to approach the Charity Commissioner before a suit could be instituted. [Paras 18 and 19] [294-F-H; 295-A-C] 1.7 The judgment and order of the High Court as also the first appellate court is set aside and the judgment and order of the trial court dismissing the suit filed by the plaintiff-respondents No.1 to 7 is restored. The trial court, however, had decreed the suit for return of the money of Rs.17,500/- to the predecessor of respondents No.1 to 7 and had also directed the respondent No.8 to pay interest on the said amount. The respondent No.8 had already been divested of his title to execute a sale deed in favour of respondent Nos.1 to 7 as he had already executed a deed of gift in favour of the appellant-trust for charitable purpose. In the interest of equity, respondent No.8 should not be saddled with the financial liability to return the amount of Rs.17,500/- with interest to the respondent Nos.1-7. The amount, in the interest of equity and fair play, should be paid by the appellant-trust to the respondent Nos.1-7 on behalf of respondent No.8, since the said part of the decree which was passed by the trial court in favour of respondent Nos. 1-7 was not challenged by way of an appeal by respondent No.8. But since the appellant- trust is the rightful owner of the disputed plot and the respondent No.8 as a consequence was divested of the property, the amount paid by the predecessor of respondent Nos.1-7, should be refunded to respondent Nos.1-7 without interest and, thus, the decree of the trial court is modified to the said extent. [Para 20] [295-D-H; 296-A-B] Case Law Reference: AIR 1927 Mad. 636 Referred to. Para 14 AIR 1936 Cal. 556 Referred to. Para 14 AIR 1944 Nag. 33 Referred to. Para 14 13 M.L.J. 364 Referred to. Para 14 (2003) 3 SCC 563 Referred to. Para 18 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3030 of 2004. From the Judgment & Order dated 27.3.2003 of the High Court of Judicature at Bombay, bench at Nagpur in Second Appeal No. 246 of 1990. U.U. Lalit, Anil Kadu, Satyajit A. Desai, Anangha S. Desai, Venkateswara Rao Anumolu for =the Appellant. Shivaji M. Jadhav for the Respondent.
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3030 OF 2004 SAINATH MANDIR TRUST …Appellant Versus VIJAYA & ORS. …Respondents JUDGMENT GYAN SUDHA MISRA, J. This appeal by special leave has been filed against the Judgment and Order dated 27.03.2003 passed by the High Court of Judicature at Bombay, Bench … Continue reading
KERALA LAND REFORMS ACT, 1963 : s.51, proviso – Surrender by tenant of his interests in the leasehold land to landlord – HELD: Being in contravention of s.51, was void. ss. 13-A and 125 – Restoration of possession of tenants dispossessed after 1.4.1964 – Jurisdiction of civil court – Held: Suit for recovery of possession by a tenant is neither barred expressly nor impliedly by s. 13-A – Further, s.125 makes it clear that in any suit regarding rights of a tenant the issues of rights of tenant and whether a person is tenant will have to be referred to the civil court. `MS’, the owner of the suit property (agricultural lands) leased out the same to `K’ in the year 1945-46. `MS’ died on 24.7.1968. His legal heirs, namely, his wife, son and daughter, executed sale deeds, Ext. A-1 and Ext. A-2 in respect of a part of the suit land. On 29.7.1968, `K’ executed a leasehold assignment deed, Ext. A-3, in favour of the son of `MS’. The purchasers of the suit property under Ext. A-1 and A-2 obtained loans from State Bank of Travancore and in turn mortgaged to the Bank the properties under Exts. A-1 and A-2. After the death of `K’, his legal heirs filed a civil suit in the year 1980 against the landlords, the purchasers and the Bank. The trial court decreed the suit declaring that the plaintiffs had leasehold rights over the suit property and were entitled to recover possession thereof. The appeals filed by the Bank and the purchasers were dismissed and so also their second appeals. In the instant petitions for special leave to appeal, the questions for consideration before the Court were: (1) whether the High Court was right in holding that Ext.A3, though styled as assignment of leasehold right, was in fact a surrender of the leasehold right by the lessee in favour of landlord and, therefore, hit by s. 51 of the Kerala Land Reforms Act, 1963 which prohibited surrender of interest of a tenant except in favour of the Government; and (2) whether the suit filed by the tenants for declaration of their tenancy rights in respect of the suit land and for recovery of possession thereof was expressly or impliedly barred by s.13A of the Act. =Dismissing the SLPs, the Court HELD: 1. In view of the proviso to s.51 of the Kerala Land Reforms Act, 1963, any surrender by the tenant of his interest to any person other than the Government is prohibited. Ext.A3, being a surrender by the tenant of his interest in favour of a person other than the Government, was in contravention of s.51 and was void. This Court is, therefore, not inclined to disturb the finding of the High Court that Ext.A3 though styled as a leasehold assignment deed was in fact a surrender of the interest of the tenant and was prohibited by s.51 of the Act. [para 6] [1091-G-H; 1092-A] 2.1 Section 9 of the Code of Civil Procedure, 1908 provides that civil courts have jurisdiction to try all suits of a civil nature excepting suits which are either expressly or impliedly barred. A plain reading of sub-s. (1) of s.13A of the Act would show that a person who has been dispossessed of his land in his occupation on or after 1st April, 1964 and such person would have been a tenant under the Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, would be entitled subject to the provisions of the Section to restoration of the possession of the land. None of the sub-sections of s.13A expressly state that a suit by a tenant for recovery of possession of the land which was under his occupation was barred. Therefore, a suit for recovery of possession by a tenant is not “expressly” barred. It cannot also be held that such a suit was “impliedly” barred by s.13A of the Act because of what is provided in s.125 of the Act. [para 7, 9 and 10] [1092-C; 1095-C-D; 1095-F] 2.2 The provisions of s.125 make it amply clear that in any suit regarding rights of a tenant, the rights of the tenant including a question whether a person is a tenant will have to be referred by the Civil Court to the Land Tribunal and after the Land Tribunal decides the question, the Civil Court will decide the suit in accordance with the decision of the Land Tribunal. Considering these clear provisions of s.125 of the Act, this Court is of the considered opinion that the suit of the plaintiffs-respondents for declaration that they were tenants in respect of the suit property and for recovery of possession of the suit property from the defendants and for mesne profit was not barred either expressly or impliedly by s.13A of the Act. [para 10] [1096-C-E] Koyappathodi Puthiyedath Ahammedkutty v. State of Kerala and Others 1987 (Supp) SCC 158 – held inapplicable. 3.1 It cannot be said that the Land Tribunal, to which the claim of tenancy of the plaintiffs-respondents was referred, has not considered the claim properly. A perusal of the order dated 13.11.1984 of the Land Tribunal shows that it has dealt with the oral evidence of several witnesses and a large number of documents filed on behalf of the parties and, in the light of the available evidence, has come to the conclusion that the father of the plaintiffs-respondents and after him the plaintiffs-respondents had leasehold rights. The trial court has accepted this finding of the Land Tribunal. The finding of the Land Tribunal and the trial court on this point is a finding of fact based on oral and documentary evidence and this Court is not inclined to disturb this finding in this Special Leave Petition. [para 11] [1096-G-H; 1097-A-B] 3.2 Further, the issue whether the purchasers under Exts. A-1 and A-2 were bona fide purchasers of the suit property, having not been raised before the trial court, it has not recorded a finding in this regard. Therefore, it is not necessary to decide, in the instant case, whether a tenant could or could not recover the land which was under his occupation from a bona fide purchaser by virtue of proviso (a) to sub-s. (1) of s.13A of the Act. [para 12] [1097-C-D] Case Law Reference: 1987 (Supp) SCC 158 held inapplicable para 3 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 15221 of 2007. From the Judgment & Order dated 28.03.2007 of the High Court of Kerala at Ernakulam in S.A. No. 517 of 1988. With SLP (Civil) No. 19320 of 2007. Parag P. Tripathi, ASG, C.S. Rajan, K.N. Madhusoodanan, T.G. Narayanan Nair, A.V. rangam, Shadan Farasat, Amey Nargolkar, Buddy A. Rangadhan for the Petitioner. C.S. Vaidyanathan, Haris Beeran, S. Sreekumar, Siraj Karoly, Radha Shyam Jena for the Respondents.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 15221 OF 2007 Amina Beevi …… Petitioner Versus Thachi & Ors. …… Respondents WITH SPECIAL LEAVE PETITION (CIVIL) NO. 19320 of 2007 The State Bank of Travancore, Alwaye Branch, Represented by its Branch Manager …… Petitioner Versus Tachil & Ors. …… … 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
Land Acquisition Act – (i) Whether in a reference made to the Reference Court under section 18 of the Act, the land owner is barred from amending the amount claimed in the reference application and seeking higher compensation; and even if he could seek amendment, whether such application should be made within the period of limitation mentioned in section 18 of the Act? (ii) Where the landowner has sought increase in compensation for only the land, in the application under section 18 of the Act, whether he can seek increase in compensation for the trees or structures also, before the Reference Court?
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO…7784…… OF 2011 [Arising out of SLP [C] No.20741 of 2009] Shri Ambya Kalya Mhatre (d) Through legal heirs & Ors. … Appellants Vs. The State of Maharashtra … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. … Continue reading
advocatemmmohan 