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Transfer of Property Act
specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as ‘Receipt’. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff’s case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff’s case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.
‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1648 OF 2006 DASHRATH KACHRU KAKDE … APPELLANT Versus VIKRAM S/O. DHONDU AWHALE …RESPONDENT (DECEASED) THROUGH LRs. O R D E R (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal, by special leave, is filed by the original defendant. The challenge is … Continue reading
Gift Tax Act, 1958: Sections 2(xii), 4(1) (c) and (d)-Gift of immovable property by unregistered document-Held, for a valid gift under Section 2 (xii) and (4) compliance with the provisions of Transfer of property Act and Registration Act necessarv- transfer of Properly Act, 1882-Sections 122 and 123-Registration Act, 1908- Sections 17. Words & Phrases . “Gift”-Meaning of in the context of Section 2(xii) of Gift Tax Act, 1958 and Section 122 of the Transfer of Property Act, 1882. Respondent, by an unregistered declaration sought to make a gift of certain immovable property to his wife. The Gift Tax Officer held that no valid gift had been made by respondent since the provisions of Section 123 of the Transfer of Property Act, 1882 had not been complied with. The said Findings were affirmed by the Assistant Commissioner and the Tribunal. However, on reference, the High Court observed that the definition of the word ‘gift’ under the Gift Tux Act, 1958 was wider than the definition of ‘gift’ in the Transfer of Property Act, and held that registration of document was not necessary for a valid gilt under Section 4 of the Act. Hence the present appeal by Revenue. -Allowing the appeal, the Court HELD : 1.1. High court erred in coming to the conclusion that the case fell within the provisions of Section 4 of the Gift Tax Act, 1958 and, therefore, as it was a deemed gift it was not necessary that the document had to be registered. [619-H; 620-A] 1.2. There can be no doubt that certain transactions may not be regarded as a gift for the purposes of the Transfer of Property Act but would fall within the ambit of the expression ‘gift’ by virtue of Section 4 of the Gift Tax Act, but in each one of the cases which in certain circumstances is to be regarded as a gift under Section 4 there has to be a transfer of immovable property and a transfer by reason of Section 17 of the Registration Act can only be by way of a registered document. Surrender or forfeiture of an interest in immovable property as contemplated by Section 4(1) (c) or vesting of any property in another person as contemplated by Section 4(1) (d) in the case of an immovable property would also attract the provisions of Section 17 of the Registration Act. [618-G-H; 619-A, B, C] 1.3. In order that there could be a transfer of property by way of gift as contemplated by the Transfer of Property Act, there has to be a registered document if the property sought to be transferred is immovable. The general law did not stand abrogated and the requirement of complying with the provisions of the Transfer of Property Act and the Registration Act had to be fulfilled. [617-F, 619-G-H] Commissioner of Gift Tax, Kerala v. R. Valsala Amma, 82 ITR 828 (SC), relied on. Smt. Padma Lalchand Mirchandani v. Commissioner of Income Tax, New Delhi, 128 ITR 174 (Delhi); Commissioner of Gift-tax, Bombay III v. Matilda Ferreira, 112 ITR 934 (Bombay); K. Madhavakrishnan v. Commissioner of Gift- tax, Tamil Nadu, 124 ITR 233 (Madras) and Darbar Shivrajkumar v. Commissioner of Gift-tax, Gujarat-IV, 131 ITR 647 (Gujarat), approved. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6725 of 1994. From the Judgment and Order dated 12.2.1985 of the Rajasthan High Court in Income Tax Ref. No. 27/75. B.B. Ahuja, K.C, Kaushik, Rajiv Tyagi, R.R. Dwivedi and B.V. Balram Das for Ms. Sushma Suri for the Appellant. N.M. Ranka, Sushil Kumar Jain and Raj Kumar Yadav for the Respondent.
CASE NO.: Appeal (civil) 6725 of 1994 PETITIONER: COMMISSIONS OF INCOME TAX, JAIPUR RESPONDENT: SIKBHMAL NAWALAKHA DATE OF JUDGMENT: 16/08/2001 BENCH: B.N. KIRPAL & SHIVRAJ V. PATIL JUDGMENT: JUDGMENT 2001 Supp(1) SCR 615 The Judgment of the Court was delivered by KIRPAL, J. The respondent was the owner of immovable property and by declaration dated … Continue reading
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