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Sec.59,100 of T.P. Act Charge – Deposit of Title Deeds – Mortgage – mere undertaking not to sale the property till the discharge of loan with out registration does not create any charge over the properties of JDr against the loan – the decree is only simple money decree – Suit for cancellation of decree obtained by wife against Jdr – is liable to be dismissed even though the decree is collusive one as the Finance Corporation does not hold Registered Charge over the properties = =Haryana Financial Corporation …. Appellant Verses Gurcharan Singh & Anr. …. Respondents = Published in judis.nic.in/supremecourt/filename=41086

Sec.59,100 of T.P. Act Charge – Deposit of Title Deeds – Mortgage – mere undertaking not to sale the property till the discharge of loan with out registration does not create any charge over the properties of JDr against the loan – the decree is only simple money decree – Suit for cancellation of decree … Continue reading

Deposit of Title Deeds – Registration when requires ? – Mutation of entry in Revenue records about mortgage when arises = STATE OF HARYANA & ORS. Vs. NAVIR SINGH & ANR published in judis.nic.in/supremecourt/filename=40878

Mutation of entry of deposit of title deeds in revenue records when not covered by State Govt.     Notification , can not be changed;   As per sec.59 of T.P.Act Deposit of title deeds evidenced with separate memorandum requires no Registration  =       Deposit of title deeds when required to be registered … 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

Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,

PETITIONER: SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. Vs. RESPONDENT: SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. AN DATE OF JUDGMENT17/02/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. MITTER, G.K. CITATION: 1971 AIR 2184 1971 SCR (3) 734 ACT: Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was … Continue reading

The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof: (a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future. Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required. (b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor. Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property. (c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected). =It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship. = We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers’ or `sales’ and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions’ may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to = We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/WILL transactions’ are not intended to apply to such bonafide/genuine transactions.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) NO.13917 OF 2009 Suraj Lamp & Industries Pvt. Ltd. …..Petitioner Vs. State of Haryana & Anr. ….Respondents J U D G M E N T R. V. Raveendran J. By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries … Continue reading

As second respondent had looked after their mother and their property, the appellants agreed for her continuing as licencee for some time. She did not however vacate=Normally this Court will not, in exercise of jurisdiction under Article 136 of the Constitution of India, interfere with finding of facts recorded by the first appellate court, which were not disturbed by the High Court in second appeal. But what should happen if the first appellate court reverses the findings of fact recorded by the trial court by placing the burden of proof wrongly on the plaintiffs and then holding that the plaintiffs did not discharge such burden; or if its decision is based on evidence which is irrelevant or inadmissible; or if its decision discards material and relevant evidence, or is based on surmises and conjectures; or if it bases its decision on wrong inferences drawn about the legal effect of the documents exhibited; and if grave injustice occurs in such a case on account of High Court missing the real substantial question of law arising in the appeal and erroneously proceeds on the basis that the matter does not involve any question of law and summarily dismisses the second appeal filed by the= The fact that was proved was possession of suit portions which was not in dispute, but not tenancy in regard to the suit portions, which was in dispute. In the absence of any documentary evidence showing the tenancy or payment of rent, the evidence of PWs.1 and 2 is more trustworthy and probable than the uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3 does not have any bearing on the issue of tenancy claimed by respondents). We therefore find that the judgments of the first appellate court and the High Court are unsustainable and the finding of the trial court that respondents are gratuitous licencees was correct and justified.

1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 8400-8401 OF 2011 [Arising out of SLP (C) Nos. 6095-6096/2009] Dnyaneshwar Ranganath Bhandare & Anr. … Appellants Vs. Sadhu Dadu Shettigar (Shetty) & Anr. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. Parties will be … Continue reading

n the maxim nemo dat quid non habet (no one gives what he has not got) and the maxim nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right and better title than he has himself) are based on the doctrine of a non habente potestatem (from one not having power) and from the philosophy of a non domino (from one who is not the proprietor). It is settled law that a title can be transferred by one who has authority to do so.

THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.477 of 1996 01-07-2011 Kothalanka Durga Vara Prasada Rao Datla chanraiah and others Counsel for the appellants :T.S. Anand Counsel for the Respondents: T. Venkata Ramana Rao & others :JUDGMENT: The plaintiff in O.S.No.552 of 1982 on the file of the Sub-Judge, Bhimavaram laid this appeal seeking for the … Continue reading

REVIEW PETITION-Scope of Error Apparent-Civil Procedure Code-Section 114, Order XLVII Rule 1 and Order II Rule 2-Review of the decision rendered by High Court in Second Appeal-Parameters required for review-Owner of suit property orally agreeing to sell suit property to appellant-Possession of property delivered to appellant on his making part payment-Appellant filing Suit No. 201/85 for protection of his possession of suit property-Appellant filing another Suit No. 1 of 1986 for specific performance of agreement for sale-During pendency of this suit, Owner executing a sale deed in favour of respondent-Appellant filing Title Suit No. 2 of 1987 for cancellation of said sale deed-Trial Court decreeing this suit and High Court upholding the decree-Subsequently, High Court entertaining and allowing a review application-Held, High Court erred in accepting the prayer for review as the question whether 1985 suit was hit by O II R 2 is not relevant to the 1987 suit-High Court has erroneously held about infraction of O II R 2-No mistake or error apparent on record found to justify entertaining review petition. The owner of the suit property entered into an oral agreement in 1982 with appellant for sale of suit property. Appellant paid part of the sale consideration. Possession of the suit property was handed over to the appellant with a promise that a sale deed would be executed in his favour within three years. Appellant paid the balance consideration and asked the owner to execute the registered sale deed in his favour. In view of threatened dispossession, the appellant with a view to protect his possession, filed Title Suit No. 201/1985. In this plaint, he exclusively reserved his right to file another suit for specific performance of sale agreement. He filed another suit No. 1 of 1986 praying for execution of sale deed in his favour. During pendency of this suit, the owner executed a sale deed in favour of respondent. Appellant filed Title Suit No. 2 of 1987 for cancellation of said sale deed. The said suit was decreed. Appeal filed against the said decree was allowed. The High Court allowed the second appeal restoring decree of lower Court. Respondent filed a review petition which was allowed. Appellant came in appeal to this Court. =Allowing the appeal, the Court HELD : 1. A perusal of Order XLVII, Rule 1 shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. [94-b-c; 92-f-g, h] M/s Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, AIR (1964) SC 1372; Meera Bhanja v. Smt. Nirmala Kumari Choudhary, AIR (1995) SC 455; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR (1979) SC 1047; Shivdeo Singh v. State of Punjab, AIR (1963) SC 1908; Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Triuymale, AIR (1960) SC 137 and Parsion Devi v. Sumiri Devi, [1997] 8 SCC 715, relied upon. Panduranga Dhondi Chougule v. Maruti Hari Jadhav, AIR (1966) SC 153, referred to. 2. The High Court had clearly fallen in error in accepting the prayer for review. First, the crucial question which according to the High Court was necessary to be adjudicated was question whether the Title Suit No. 201 of 1985 was barred by the provisions of Order II Rule 2 CPC. This question arose in Title Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave under Order II Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985. The claim of oral agreement dated 19.08.1982 is mentioned in para 7 of the plaint, and at the end of the plaint it has been noted that right to institute suit for specific performance was reserved. That being so the High Court has erroneously held about infraction of order II Rule 2 CPC. This was not a case where Order II of Rule 2 CPC has any application. [96-b-d] A.K. Ganguli, Ms. B. Basak and Chanchal Kumar Ganguli for the Appellant. Shib Shankar Sirkar, P.K. Chakravarty and Apu Banik In-Person (on behalf of Mrs. Usha Rani Banik) for the Respondents.

CASE NO.: Appeal (civil) 7948 of 2004 PETITIONER: Haridas Das RESPONDENT: Smt. Usha Rani Banik & Ors. DATE OF JUDGMENT: 21/03/2006 BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE JUDGMENT: J U D G M E N T ARIJIT PASAYAT, J. Challenge in this appeal is to the order passed by a learned Single Judge of the … Continue reading

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