In Union of India & Ors. Vs. E.G. Nambudiri, as reported in (1991) 3 SCC 38, the Apex Court held that the competent authority has no licence to act arbitrarily. It must act in a fair and just manner. It is required to consider the questions raised and examine the same. The administrative authority does not have liberty to pass orders without there being any reasons for the same. Right to reasons is an indispensable part of a sound system of judicial review. Since under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is desirable that reasons should be stated.
In the case between Union of India Vs. Mohan Lal Capoor & Ors., as reported in (1973) 2 SCC 836, it was held that 'reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.'
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NO LICENCE TO ACT ARBITRARILY BY AUTHORITIES
PUBLIC PURPOSE IN ACQUISITION PROCEEDINGS
In State of Bihar v. Kameshwar Singh reported in AIR 1952 SC 252 at page 259, a Constitution Bench of Supreme Court considered the expression 'public purpose'. Mahajan, J. explained the expression 'public purpose' in the following manner: "The expression "public purpose" is not capable of a precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual."
In The State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie, the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose. In the said case, the Court observed that the phrase 'public purpose' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned. It is impossible to define precisely the expression 'public purpose'.
In Somawanti v. State of Punjab (1963) 2 SCR 774, the Court observed that public purpose must include an object in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to change with the times and the prevailing conditions in a given area and, therefore, it would not be a practical proposition even to attempt an extensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose. The Constitution Bench of Supreme Court in Somawanti case observed that whether in a particular case the purpose for which land was needed was a public purpose or not was for the Government to be satisfied about and the declaration of the Government would be final subject to one exception, namely that where there was a colourable exercise of the power the declarations would be open to challenge at the instance of the aggrieved party.
In Babu Barkya Thakur v. The State of Bombay & Others (1961) 1 SCR 128, the Court observed as under: "It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."
The Constitution Bench in Satya Narain Singh v. District Engineer, P.W.D., Ballia and Anr. reported in AIR 1962 SC 1161 while describing public service observed :- "It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public".
In Arnold Rodricks v. State of Maharashtra, reported in (1966) 3 SCR 885, while Justice Wanchoo and Justice Shah dissenting from judgment observed that there can be no doubt that the phrase 'public purpose' has not a static connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what public purpose is, particularly as the concept of public purpose may change from time to time. There is no doubt however that public purpose involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose.
In Bhim Singhji v. Union of India (1981) 1 SCC 166, as per Sen, J., the concept of public purpose necessarily implies that it should be a law for the acquisition or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserve public interest. Broadly speaking the expression 'public purpose' would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned.
In Laxman Rao Bapurao Jadhav v. State of Maharashtra reported in (1997) 3 SCC 493, this Court observed that "it is for the State Government to decide whether the land is needed or is likely to be needed for a public purpose and whether it is suitable or adaptable for the purpose for which the acquisition was sought to be made. The mere fact that the authorized officer was empowered to inspect and find out whether the land would be adaptable for the public purpose, it is needed or is likely to be needed, does not take away the power of the Government to take a decision ultimately".
In Scindia Employees' Union v. State of Maharashtra & Others reported in (1996) 10 SCC 150, this Court observed as under: "The very object of compulsory acquisition is in exercise of the power of eminent domain by the State against the wishes or willingness of the owner or person interested in the land. Therefore, so long as the public purpose subsists the exercise of the power of eminent domain cannot be questioned. Publication of declaration under Section 6 is conclusive evidence of public purpose. In view of the finding that it is a question of expansion of dockyard for defence purpose, it is a public purpose."
The right of eminent domain is the right of the State to reassert either temporarily or permanently its dominion over any piece of land on account of public exigency and for public good. In the case of Coffee Board v. Commissioner of Commercial Taxes reported in (1988) 3 SCC 263, the Court observed that the eminent domain is an essential attribute of sovereignty of every State and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner's consent upon making just compensation.
A seven-Judge Bench of this Court in The State of Karnataka & Another v. Shri Ranganatha Reddy & Another reported in (1977) 4 SCC 471, explained the expression 'public purpose' in the following words: "It is indisputable and beyond the pale of any controversy now as held by this Court in several decisions including the decision in the case of His Holiness Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1 S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justifiable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition. ……………..The concept of public purpose should include the matters, such as, safety, security, health, welfare and prosperity of the community or public at large. The concept of 'eminent domain' is an essential attribute of every State. This concept is based on the fundamental principle that the interest and claim of the whole community is always superior to the interest of an individual.
INJUNCTION ORDERS BY COURT PRINCIPLES
AIR 2006 SC 3275, M. Gurudas & Ors. VS Rasaranjan & Ors.
While considering an application for injunction, the courts would pass an order thereupon having regard to: (i) prima facie (ii) balance of convenience (iii) irreparable injury. A finding on `prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.
An appellate court would not ordinarily interfere with but then there are certain exceptions thereto. The courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the appellants.
The properties may be valuable but would it be proper to issue an order of injunction restraining the appellants from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties being remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law.
The conduct of the defendants was indisputably relevant. But, then conduct of the plaintiffs would also be relevant. Therefore, the court while granting an order of injunction, would take into consideration as to whether the plaintiffs have pre-varicated their stand from stage to stage. Even this question had not been adverted to by the courts below. Further, while doing so, the courts would look into the documents produced before the trial court as also the appellate court in terms of Order 41, Rule 27 CPC but the same would not mean that this Court must confine itself only to the questions which were raised before the courts below and preclude itself from considering other relevant questions although explicit on the face of the records. Questions of law in a given case may be considered by this Court although raised for the first time. The question as to whether this Court would permit the parties to raise fresh contentions, however, must be based on the materials placed on records.
While making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs' share in the property, if any.
Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73]." While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.
FEMALE CHILD CANNOT BE TAKEN ON ADOPTION
ADOPTION VALIDITY
AIR 2006 SC 3275, M. Gurudas & Ors. VS Rasaranjan & Ors.
To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of `datta homam' was imperative, subject to just exceptions.
Regarding the question whether adoption of a daughter was permissible in law, it appears that trial Judge missed the last sentence of the passage of Mayne's Treatise on Hindu Law and Usage "it is now settled that the adoption of a daughter is invalid under the Hindu law." In section 480 of the treatise, it is stated that the person to be adopted must be a male.
Mayne's Treatise on Hindu Law and Usage, 13th edition, pages 429-430: "Adoption of daughters Nandapandita in his Dattaka Mimamsa would construe 'putra' (or son) as including a daughter and he draws the inference that on failure of a daughter, a daughter of another could be adopted. He supports his conclusion by referring to ancient precedents, such as the adoption of Shanta, the daughter of King Dasaratha by King Lomapada and the adoption of Pritha or Kunti, the daughter of Sura by Kunti Bhoja. This view is sharply criticized by Nilakantha in the Vyavahara Mayukha. It is now settled that the adoption of a daughter is invalid under the Hindu law."
In Mulla's Principles of Hindu Law, 17th edition, page 710, it is stated: "488. Ceremonies relating to adoption (1) The ceremonies relating to an adoption are (a) the physical act of giving and receiving, with intent to transfer the boy from one family into another; (b) the datta homam, that is, oblations of clarified butter to fire; and (c) other minor ceremonies, such as putresti jag (sacrifice for male issue). (2) They physical act of giving and receiving is essential to the validity of an adoption; As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case. As to the other ceremonies, their performance is not necessary to the validity of an adoption. (3) No religious ceremonies, not even datta homam, are necessary in the case of Shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab."
COMPROMISE WHEN IT IS BAD IN LAW
ARJAN SINGH VS PUNIT AHLUWALIA & ORS. MAY 14, 2008
Partly allowing the appeal, the Supreme Court HELD :
1. A compromise which does not satisfy the requirements of law would be unlawful and, therefore, decree in terms thereof cannot be passed. When a compromise is entered into, the Court has a duty to see as to whether the same meets the requirements of law. It may be true that parties to the suit signed the compromise petition. But, in the instant case, indisputably, the appellant has a rival claim. The suit filed by him, vis-a-vis, the one filed by `S' was required to be considered together. The court could exercise its discretionary jurisdiction in one of the suits or the other, having regard to Section 20 of the Specific Relief Act, 1963. By reason of a compromise or otherwise, the claim of the appellant could not have been defeated.
2. It is only pursuant to or in furtherance of the said purported terms of settlement, the deed of sale was executed on 25.3.2003. The settlement entered into by and between the parties proceeded on the assumption that no decree for specific performance would be passed in the case of the appellant. It wrongly recorded that the appellant is only a proforma defendant in the suit. The said compromise, was unlawful.
3. The trial court has rightly held that it was a case where the first part of Order 23 Rule 3 of the Code of Civil Procedure, 1908 would apply. As the appellant was not a party to the settlement, the same was not binding on him.
4. The Trial Court, however, was right in holding that the purported compromise was bad in law. It was unlawful being without any written consent of all the parties. Indisputably, not only the same was not binding on the parties, the court in a case of this nature while considering the appellant's case shall not take note of the fact that any deed of sale has been executed pursuant thereto. Respondent No.3, as a logical corollary of these findings, would not be entitled to set up the plea of being bona fide purchaser for value without notice. The court may also pass such other order or orders, as it may deem fit and proper keeping in view its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963. To that extent the judgment of the trial court is upheld and that of the High Court set aside.
RIGHTS OF PURCHASER OF PROPERTY PENDING LITIGATION
LIS PENDENCY
AIR 2008 SC 2560, GURUSWAMY NADAR VS P. LAKSHMI AMMAL(D) THROUGH LRS. & ORS
Transfer of Property Act, 1882 - s. 52 - Principle of lis pendens - Applicability of - Pendency of suit for specific performance - Subsequent sale of the same property by owner to second purchaser - Held: As suit was filed before second sale of the property, principle of lis pendens would be attracted even though the subsequent purchaser purchased the same in good faith and his rights were protected u/s. 19(b)
Dismissing the appeal, the Supreme court HELD:
1. Section 19 of the Specific Relief Act, 1963 clearly states that subsequent sale can be enforced for good and sufficient reason but in the instant case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Had that not been the position then the effect of section 19 read with section 52 of the Transfer of Property Act would have been evaluated. But in the instant case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens would govern the instant case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.
2. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.
3. In the instant case, it is apparent that the appellant, who is a subsequent purchaser of the same property, purchased the property in good faith but the principle of lis pendens will certainly be applicable to the instant case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected. Under section 19(b) of Specific relief act all subsequent purchasers for value who has paid money in good faith and without notice of the original contract, cannot be brought in, to enforce specific performance of original contract.
The Full Bench of Allahabad High Court in Smt. Ram Peary case referred to the work of Story on Equity which expounded the doctrine of lis pendens in the terms as follows: " Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendent elite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."
The Full Bench of the Allahabad High Court in Smt. Ram Peary case has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a English decision in Bellamy v. Sabine wherein it was observed as under: " It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."
R.K.Mohammed Ubaidullah & Ors. v. Hajee C.Abdul Wahab (D) by L.Rs. & Ors. [AIR 2000 SC 1658]. In this case it was observed that a person who purchased the property should made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In that context their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected.
MITAKSHARA CO-PARCENARY AND JOINT FAMILY
2008 (7) SCC 46, HARDEO RAI VS SAKUNTALA DEVI AND OTHERS BENCH: S.B. SINHA & V.S. SIRPURKAR
Hindu law - Mitakashra Coparcenary property and Joint Family property - Distinction between. - Held: Mitakashra Coparcenary is a body of individuals created by law whereas joint family is constituted by agreement of the parties. The appellant and the respondent's father entered into an agreement to sell a property. In the agreement, the appellant made a representation that the joint family property was partitioned and the co-sharers were in possession of the separate properties. Respondent's father paid certain sum out of the total amount and was put in the possession of the property. However, the appellant did not execute the sale deed. Respondent filed suit for specific performance. Appellant contended that he was forced to sign a blank stamped paper on which agreement of sale was scribed later; and that the property was a joint family property. Respondent's father was examined. The scribe of the agreement as also witnesses were examined. Trial court decreed the suit. The appeal by the appellant was allowed on the ground that the property was a joint family property. Aggrieved, respondent filed appeal and the Division Bench of High Court allowed the same. Hence, the present appeal.
Dismissing the appeal, the Supreme Court HELD:
1. There exists a distinction between a Mitakashra Coparcenary property and Joint Family property. A Mitakashra Coparcenary carries a definite concept. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties. A Mitakashra Coparcenary is a creature of law. Thus, it is necessary to determine the status of the appellant and his brothers.
2. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a co-parcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants in common".
3. Even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.
4. The first appellate court did not arrive at a conclusion that the appellant was a member of a Mitakashra co-parcenary. The source of the property was not disclosed. The manner in which the properties were being possessed by the appellant vis-a-vis, the other co-owners had not been taken into consideration. It was not held that the parties were joint in kitchen or mess. No other documentary or oral evidence was brought on record to show that the parties were in joint possession of the properties. One of the witnesses examined on behalf of the appellant admitted that the appellant had been in separate possession of the suit property. Appellant also in his deposition accepted that he and his other co-sharers were in separate possession of the property.
5. The representation made by the appellant is noticed. If the representation to the respondents' father was incorrect, the appellant should have examined his brothers. He should have shown that such a representation was made under a mistaken belief. He did nothing of that sort.
6. In view of the admission made by the appellant himself that the parties had been in separate possession, for the purpose of grant of a decree of specific performance of an agreement, a presumption of partition can be drawn. The Single Judge of the High Court committed a serious error in so far as it failed to take into consideration the essential ingredients of a Mitakshra Coparcernary.
HOW TO ASCERTAIN A TRUST WHETHER IT IS PUBLIC OR PRIVATE IN CASE OF TEMPLES
In State of W.B. v. Sri Sri Lakshmi Janardan Thakur [(2006) 7 SCC 490], this Court opined: "In order to ascertain whether a trust is private, the following factors are relevant:
(1) If the beneficiaries are ascertained individuals.
(2) If the grant has been made in favour of an individual and not in favour of a deity.
(3) The temple is situated within the campus of the residence of the donor.
(4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity.
On the other hand an inference can be drawn that the temple along with the properties attached to it is a public trust:
(1) If the public visit the temple as of right.
(2) If the endowment is in the name of the deity.
(3) The beneficiaries are the public.
(4) If the management is made through the agency of the public or the accounts of the temple are being scrutinised by the public."
GRANTED LANDS ENURES TO THE BENEFIT OF FAMILY
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5646 OF 2008 (Arising out of SLP (C) No. 21197 of 2006) K.V. Sudharshan VS A. Ramakrishnappa & Ors. JUDGMENT TARUN CHATTERJEE, J.
Mysore (Religious and Charitable Inams) Abolition Act, 1955: Inam lands - Granted to eldest son with the consent of brother and other family members - Partition - Father of respondent Nos. 1 & 2 was serving as an Archak in a temple and had been cultivating the inam lands attached to the temple. After his death, the lands were granted by the authority to respondent No.1, the eldest son, with the consent of other members of the family. Respondent No.1 was also acting as the Manager of the ancestral and self-acquired property of his father. Appellant, son of respondent No.2, issued a legal notice to respondent No.1 demanding partition of the joint family properties including inam lands. Respondent No.1 refused to partition the immovable properties. The appellant filed a suit for partition claiming his share in the properties along with mesne profits. The Trial Court dismissed the suit holding that prior partition was established in view of the admission by respondent No.2 and as such the appellant could not demand partition. Aggrieved, the appellant filed an appeal, which was dismissed by the High Court. Review petition was also dismissed by the High Court. Hence the present appeal. Appellant contended that in respect of inam lands granted to respondent No. 1, the High Court had committed an error by holding that since the appellant and the respondent No.2 had not performed the duties as archak of the Inamdar Temple and they had not personally cultivated the lands, they were not entitled to grant of the inam lands. Counsel for respondent Nos. 1 and 3 submitted that respondent no.1 had got the properties, imam land in question, vacated from the tenants who had been cultivating it and thereafter he was personally cultivating the same and after coming into force of the Mysore (Religious and Charitable Inams) Abolition Act, an application for grant of occupancy rights was moved on his behalf and the right was conferred on him by the competent authority after proper inquiry and therefore, the appellant could not claim partition of the same; that respondent no.1 was admittedly the archak of the temple and he was also cultivating the properties personally for a continuous period of 3 years prior to the date of its vesting with him and therefore, he was entitled to apply for registration of his right in terms of provisions of the Act; and that the grant of such right is a personal right which cannot be characterized as an ancestral right because in this case, even if his father was alive, he could not have become entitled to grant of occupancy rights because he was not cultivating the lands.
Allowing the appeal, the Court HELD:
Under the scheme of the Mysore (Religious and Charitable Inams Abolition) Act, inam lands are liable to be granted to the tiller of such lands, be, as it may, as tenants, archaks or office bearers of the inamdar temple. Accordingly, this Court is of the view that such grants are meant for the benefit of the family of the tiller and not for him individually and for this reason, there can be no justification to disregard the rights of the junior members of the family if their eldest member was performing the duties of archak with the consent of others. For this reason and in view of the decision of this court in the case of Nagesh Bishto, this Court is of the view that grant of land to archak cannot disentitle the other members of the family of the right to the land and such granted land, therefore, is also available for partition.
Furthermore, it also emerges from the judgment of the Trial Court that the tenants cultivating the land had stated that respondent no.2 had requested his father to allow him to cultivate the lands who accordingly gave his consent before the land tribunal also. Such being the position, if other members of the family had not objected to his becoming the archak of the temple because he was the eldest and also allowed him to cultivate the lands then, if subsequently he was, by virtue of the fact that he was the archak and also personally cultivating the lands, granted the lands, he cannot take away the rights of such other members of the family in the granted lands.
However, this Court is not inclined to look at Section 6A in isolation. If seen in totality, it is discernible that the father of respondent No.1 gave his consent and allowed respondent no.1 to cultivate the land after taking the same from the tenants. Even the land tribunal, while passing the order granting occupancy rights, had not confined itself to the fact that the conditions in Section 6A were fulfilled. Rather, the land tribunal had observed that the father of respondent No. 1 was the archak and anubhavdar of the temple and this was a prime consideration in granting occupancy rights to the respondent No.1. Therefore, it would be wrong to hold that simply because the conditions in Section 6A were fulfilled, the respondent no. 1 was granted occupancy rights and it was his individual rights. The truth is that the respondent No.1 became the Archak after the death of his father because he was the eldest in the family and only then came the question of satisfying the conditions of Section 6A of the Act.
It is wrong on the part of respondent No.1 to say that his father, even if he had been alive, would not have been granted occupancy rights because the lands at that time were cultivated by the tenants. For grant of occupancy rights, personal cultivation is just one condition. The other conditions include that if a person is managing the properties, which his father was doing, would also be entitled to the grant of occupancy rights.
Respondent No. 1 was made archak after the death of his father because he was the eldest member of the family. Being the archak, he cultivated the lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their share in the properties by relying only on Section 6A of the Act. Therefore, this Court is also of the opinion that the granted lands are also available for partition and grant of occupancy to one member will not disentitle the other members.
ADVERSE POSSESSION AS EXPLAINED BY SUPREME COURT OF INDIA
ADVERSE POSSESSION
In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of us was a member, this Court held : In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse.
Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.”
Yet recently, in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59], this Court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine : “Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.”
We may also notice that this Court in M. Durai v. Muthu & Ors. [(2007) 3 SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act, holding : “The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”
AIR 2008 SC 346 Annakili vs A. Vedanayagam & Ors
Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title.
AIR 2007 SC 1753 P.T. Munichikkanna Reddy & Ors VS Revamma and Ors
CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor or on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.
Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property.
Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title.
In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] this Supreme court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse."
A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by Supreme Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and
(e) his possession was open and undisturbed.
A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"
In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], Supreme Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter."
In Karnataka Wakf Board, the law was stated, thus: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined : "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable"
CONDONATION OF DELAY - SUFFICIENT CAUSE TO SHOW
STATE (NCT OF DELHI) VS AHMED JAAN. AUGUST 12, 2008
Limitation Act, 1963: s. 5 - Condonation of delay - "sufficient cause" –
HELD: It is sufficiency of the cause which counts, and not length of delay - Expression "sufficient cause" should receive a liberal construction - As regards delay on the part of State, certain amount of latitude is not impermissible - Expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay - Matter remitted to High Court to decide the criminal revision on merits - Suggestions made to prevent delay in State litigation - Administration of justice –
Allowing the appeal, the Supreme Court HELD:
The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause; and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard and fast rules. The expression "sufficient cause" should receive a liberal construction.
No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace encumbered with procedural red-tape in decision making process. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit.
The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment; and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer concerned and he should be made personally responsible for lapses, if any.
In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by Supreme Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC 840) Supreme Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979 (4) SCC 365) which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan (1969 (2) SCC 770), Supreme Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive. In State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath (1982 (3) SCC 366), it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation.
In O. P. Kathpalia v. Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji (1987 (2) SCC 107), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution 9 of courts. It is common knowledge that Supreme Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned.
In G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.
The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal.
CO-OWNERS RIGHTS
JAI SINGH AND ORS. VS GURMEJ SINGH 2009 (1) SCALE 679
Sale - Joint property - Inter-se rights and liabilities of co-sharers - Governing principles - Explained. Dismissing the appeal, the Supreme Court HELD:
The principles relating to the inter-se rights and liabilities of co-sharers are as follows:
(l) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co- owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.
When a co-sharer is in exclusive possession of some portion of the joint holding he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all co-sharers.
Pendency of suit for specific performance
AIR 2008 SC 2560, GURUSWAMY NADAR VS P. LAKSHMI AMMAL(D) THROUGH LRS. & ORS
Transfer of Property Act, 1882 - s. 52 - Principle of lis pendens - Applicability of - Pendency of suit for specific performance - Subsequent sale of the same property by owner to second purchaser - Held: As suit was filed before second sale of the property, principle of lis pendens would be attracted even though the subsequent purchaser purchased the same in good faith and his rights were protected u/s. 19(b)
Dismissing the appeal, the Supreme court HELD:
1. Section 19 of the Specific Relief Act, 1963 clearly states that subsequent sale can be enforced for good and sufficient reason but in the instant case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Had that not been the position then the effect of section 19 read with section 52 of the Transfer of Property Act would have been evaluated. But in the instant case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens would govern the instant case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.
2. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.
3. In the instant case, it is apparent that the appellant, who is a subsequent purchaser of the same property, purchased the property in good faith but the principle of lis pendens will certainly be applicable to the instant case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected. Under section 19(b) of Specific relief act all subsequent purchasers for value who has paid money in good faith and without notice of the original contract, cannot be brought in, to enforce specific performance of original contract.
The Full Bench of Allahabad High Court in Smt. Ram Peary case referred to the work of Story on Equity which expounded the doctrine of lis pendens in the terms as follows: " Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendent elite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."
The Full Bench of the Allahabad High Court in Smt. Ram Peary case has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a English decision in Bellamy v. Sabine wherein it was observed as under: " It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."
R.K.Mohammed Ubaidullah & Ors. v. Hajee C.Abdul Wahab (D) by L.Rs. & Ors. [AIR 2000 SC 1658]. In this case it was observed that a person who purchased the property should made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In that context their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected.
Amendment of plaint and written statement - Observations of supreme Court in Various cases
1. The Hon’ble Supreme court of India in Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] has held that “It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.
2. The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. Decided on 14/5/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp “ It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”
3. The Hon’ble Supreme court of India in Chander Kanta Bansal vs Rajinder Singh Anand Decided on: 11/03/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp It is observed by court as follows “ It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial.”
4. The Hon’ble Supreme court of India in N.Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp In paragraph 57 of the decision, it was observed as follows :”It is submitted that the date of settlement of issues is the date of commencement of trial.”
5. The Hon’ble Supreme court of India in Baldev Singh & Ors. Vs. Manohar Singh & Anr. [2006 (6) SCC 498]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp In paragraph 17 of the decision, it was held and observed as follows : “Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced.
6. The Hon’ble Supreme court of India in South Konkan Distilleries & Anr. Vs Prabhakar Gajanan Naik & Ors.[Decided on 09-09-2008]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp it was held and observed as follows : “we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and the counter claim, in the facts and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.”
CASE LAW ON EVIDENCE
FOR A QUESTION WHEN TO TREAT WITNESS AS HOSTILE A DETAILED DISCUSSION OF CASE LAW AND ACTS APPLICABLE ON THE SUBJECT BY Karnataka High Court in a case of P. Ramlingam vs Y.B. Sannaiah decided on 5/1/2000
Section 5 of the Evidence Act speaks about evidence to be given on facts in issue and relevant facts. It reads as follows:"Evidence may be given of facts in issue and relevant facts.--Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation.--This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure".
While discussing various types of witnesses, the nature of hostile witness is considered under the above Section 5. Under Section 154 of the Evidence Act, the question of permitting the party to be questioned to his own witness is provided for. Section 154 reads as follows: "Question by party to his own witness.--The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party".
The above rule prohibiting and asking of leading questions to a party of his own witness on the assumption that the witness is always biased in favour of the party calling him. Section 142 of the Evidence Act makes it clear that leading questions must not be asked, except with the permission of the Court. Section 142 reads as follows: "When they must not be asked.--Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved".
This rule must of necessity to be relaxed when the witness exhibits an opposite feeling, namely, when he by his conduct, attitude, demeanour or unwillingness to give answers or to disclose the truth shows that he is hostile or friendly to the party calling him. The Court in such a case may in its discretion, permit a party to put any question to his own witness which might be put in cross-examination by his opponent, that is, may permit him to lead. This in effect means that the Court may in a fit case permit a party to cross-examine his own witness as provided for under Section 137 of the Evidence Act, which is extracted below:
"Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.--The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.--The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination".
It is to be noted that this discretion of the Court to permit the putting of leading questions, or in other words permit to cross- examination, is absolute and is independent of any question of hostility or adverseness. Cuming, J., in Bikram v R, has considered that Section 150 read with Section 143 provided that the Court may allow the party to put leading questions to his own witness. But that I do not think necessarily mean that he must declare the witness hostile and cross-examine him. It is only when he declares the witness hostile and cross-examine him that he cannot rely on his evidence. Putting leading questions to one's own witness or rather cross-examining him is different from discrepancy or contradicting witness.
In Sat Paul v Delhi Administration , the Supreme Court laid down that the discretion is unqualified and untrammelled and is quite apart from any question of the hostility or otherwise of the witness. However, it is liberally exercised. The discretion must be judiciously and properly exercised in the interest of justice. The inference that the witness has turned hostile is to be inferred from the answers given by the witness.
A distinction must be drawn between a true witness and a hostile witness. If exhibition of hostile animus were the sole test of declaring a witness adverse, the object would be frustrated in many instances. A shrewd and composed witness might, by concealing his real sentiments or hostile attitude, give unfavourable evidence and make statements contrary to the facts, known to him. Merely giving unfavourable testimony cannot also be enough to declare a witness adverse, for he might be telling the troth which goes against the party calling him. He is hostile if he tries to injure the party's case by prevaricating or suppressing the truth. The Court has by this section been given a very wide discretion and is at liberty to allow a party to cross-examine his witness. When his temper, attitude and demeanour in the witness-box show a distinctly antagonistic feeling or a mind hostile to the party calling him.
In the case of Baikuntha Nath Chattoraj v Prasannamoyi Debya, it has been held as follows: "Where the purpose of the production of the document at the time of cross-examination of a witness seemed to have been well understood by him and from the record of his deposition it was manifest that after being shown the document, he was directly asked whether it was not a fact that he was not at a particular place on the alleged date as was clear from the document and where on re-examination no attempt was made to elicit any explanation. Held, the witness was properly contradicted".
The dictum in State of Mysore v Raju Shetty, is to the following effect: "Ordinarily when a party puts a witness in the box, he can be taken to represent to the Court that the said witness is expected to state the truth. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the Court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to cross-examine him. Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, is not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the Court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not change if the evidence given by such a witness is adverse to the case of the party calling him. Even in such a case, the Court has power and duty of deciding whether or not to believe him. It is, therefore, not light to proceed on the basis that whatever is stated by a witness which is not in favour of the case of the party calling him should necessarily be believed as if it were an admission made and binding upon the party calling him".
In Saraswathamma v Bhadramma , the following proposition is relied upon: "A witness cannot be treated as hostile merely because his evidence is favourable to the other side, and the fact that the witness has become hostile has to be established by eliciting information such as could give an indication of hostility.
It is not possible for Court to say without giving reason that he will not believe a witness after permission for treating the witness as hostile has been refused by the Court unless the Civil Judge himself comes to the conclusion that he has turned hostile".
The dictum in Sat Paul's case, supra, is to the following effect: "The discretion conferred by Section 154 on the Court is unqualified and untrammelled and is apart from any question of hostility. It is to be liberally exercised whenever the Court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as "declared
hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto".
In Syad Akbar v State of Karnataka, the Supreme Court has held as follows: "As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care and (b) it has to be further satisiied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant".
THE CONCEPT OF PROPERTY
Property designates those things commonly recognized as the entities in respect of which a person or group has exclusive rights. Important types of property include real property (land), personal property (other physical possessions), and intellectual property (rights over artistic creations, inventions, etc.). A right of ownership is associated with property that establishes the good as being "one's own thing" in relation to other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she sees fit, whether to use or not use, exclude others from using, or to transfer ownership. Some philosophers assert that property rights arise from social convention. Others find origins for them in morality or natural law.
Various scholarly communities (e.g., law, economics, anthropology, sociology) may treat the concept more systematically, but definitions vary within and between fields. Scholars in the social sciences frequently conceive of property as a bundle of rights. They stress that property is not a relationship between people and things, but a relationship between people with regard to things.
In Roman law, property was defined as follows: ius utendi et abutendi re sua, quatenus iuris ratio patitur, 'the right to use and abuse a thing, within the limits of the law' (Justinian, Code 4, 35, 21; see also, commentary by P.J. Proudhon in ch. 2 of What is Property?.
One modern textbook on property law states:
When a layman is asked to define "property," he is likely to say that "property" is something tangible "owned" by a natural person (or persons), a corporation, or a unit of government. But such a response is inaccurate from a lawyer's viewpoint for at least two reasons: (1) it confuses "property" with the various subjects of "property," and (2) it fails to recognize that even the subjects of property may be intangible.
For a lawyer, "property" is not a "thing" at all, although "things" are the subject of property. Rather, as Jeremy Bentham asserted, property is a legally protected "expectation of being able to draw such or such an advantage from the thing" in question
Black's Law Dictionary (5th ed. 1979) states that "In the strict legal sense, [property is] an aggregate of rights which are guaranteed and protected by the government" and that the term property "includes not only ownership and possession but also the right of use and enjoyment for lawful purposes."
By contrast, Barron's Law Dictionary (2d ed. 1984) defines property as "one's exclusive right to possess, use, and dispose of a thing as well as the object, benefit, or prerogative which constitutes the subject matter of that right."
Property is usually thought of in terms of a bundle of rights as defined and protected by the local sovereignty. Ownership, however, does not necessarily equate with sovereignty. If ownership gave supreme authority it would be sovereignty, not ownership. These are two different concepts.
Traditional principles of property rights includes:
1. control of the use of the property
2. the right to any benefit from the property (examples: mining rights and rent)
3. a right to transfer or sell the property
4. a right to exclude others from the property.
Traditional property rights do not include:
1. Uses that unreasonably interfere with the property rights of another private party (the right of quiet enjoyment). [See Nuisance]
2. Uses that unreasonably interfere with public property rights, including uses that interfere with public health, safety, peace or convenience. [See Public Nuisance, Police Power]
In his classic text, "The Common Law", Oliver Wendell Holmes describes property as having two fundamental aspects. The first is possession, which can be defined as control over a resource based on the practical inability of another to contradict the ends of the possessor. The second is title, which is the expectation that others will recognize rights to control resource, even when it is not in possession. He elaborates the differences between these two concepts, and proposes a history of how they came to be attached to individuals, as opposed to families or entities such as the church.
There exist many theories. Perhaps one of the most popular was the natural rights definition of property rights was advanced by John Locke. Locke advanced the theory that when one mixes one’s labor with nature, one gains ownership of that part of nature with which the labor is mixed, subject to the limitation that there should be "enough, and as good, left in common for others"
Most legal systems distinguish different types (immovable property, estate in land, real estate, real property) of property, especially between land and all other forms of property - goods and chattels, movable property or personal property. They often distinguish tangible and intangible property
One categorization scheme specifies three species of property: land, improvements (immovable man made things) and personal property (movable man made things)
Real property rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leases, licenses and easements.
The two major justifications given for original property, or homesteading, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property. For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the exclusivity property - that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property.
Ownership of land can be held separately from the ownership of rights over that land, including sporting rights, mineral rights, development rights, air rights, and such other rights as may be worth segregating from simple land ownership.
In common law, real property was property that could be protected by one of the real actions, as opposed to personal property, where a plaintiff would have to use another form of action.
PROPERTY CONCEPT IN INDIA
In India the concept of Property was based on the function and responsibility of other members of the family concerned. The right to property is not absolute right in such context.
EARTH AND LAND
The name Earth originates from the 8th century Anglo-Saxon word erda, which means ground or soil.
Land is nothing but earth in simple words, but lets know some general things about earth. About 70.8% of the surface of earth is covered by water. About 97.5% of the water is saline, while the remaining 2.5% is fresh water. The majority of the fresh water, about 68.7%, is currently in the form of ice. About 3.5% of the total mass of the oceans consists of salt. Most of this salt was released from volcanic activity or extracted from cool, igneous rocks. Sea water has an important influence on the world's climate, with the oceans acting as a large heat reservoir.
It is estimated that only one eighth of the surface of the Earth is suitable for humans to live on—three-quarters is covered by oceans, and half of the land area is either desert (14%), high mountains (27%),or other less suitable terrain.
HISTORY OF LAND AND ITS LEGAL AFFAIRS
In pre-modern India, civil administration mainly revolved round the management of revenue affairs. Hence the assignment of land carried with it a host of administrative responsibilities. Zamindars were required to prepare details of revenue assessment, collect rent from the peasants and remit it to the state authorities and were also obliged to assist the imperial officers in the peace-keeping of the locality and to supply troops whenever needed. The superior landed interests who derived their strength and authority partly from the share of the produce and partly from their traditional superior position in the locality were well-suited to perform the state functions reposed in them by the imperial sanads.
Under Pitt's India Act of 1784 the Calcutta government enacted many rules and regulations with the object of reorganising the colonial state on a permanent basis. Attempts were made to make settlement of land with zamindars and frame durable rules and regulations to govern the state efficiently and to the benefit of both the rulers and of the ruled. lord cornwallis was sent as governor general with the positive instructions to make the new kingdom strong and stable economically and politically. Under the Act and under the instructions of the court of directors, Cornwallis was obliged to abandon the path of ruinous experiments and make permanent settlement with zamindars, talukdars and other landholders of the country.
Cornwallis concluded the permanent settlement with zamindars in March 1793. The status of zamindars and their roles came to be very different under the Permanent Settlement. The landholders of all categories were declared proprietors of land. As proprietors, zamindars were to pay government revenue without any alteration for all time to come. The zamindari property, like any other property, could be freely transferred or mortgaged without the necessity of taking any sanction from the authorities. The zamindari right was also inheritable among the successors of zamindars according to Hindu and Muslim laws of succession. Zamindars got these proprietary rights entirely gratis. In return for these rights and privileges, zamindars were required to pay revenue to government absolutely punctually according to the contract, otherwise, their lands were made liable to be sold in public auction. Zamindars were formally stripped of all state powers and privileges they had been enjoying traditionally as local potentates
The relation between zamindars and raiyats deteriorated progressively in the early part of the 19th century. The conflict between the two classes mainly originated from zamindari attempts of enhancing the established rent rate. The pressure of the permanent settlement, decline in zamindari income through rise in prices and many other factors including litigation, family feuds and fragmentation of the parent estates among successors, persuaded zamindars to enhance rent of raiyats. But raiyats were steadfastly resisting such attempts on the ground that zamindars had no right to change the pargana nirikh or established rate of rent.
A Rent Commission was established in 1880 to study the agrarian situation and report to the government suggesting remedies. Based on its report (1883) the Bengal Legislative Council enacted the bengal tenancy act 1885. The Act tried to define the rights and liabilities of all interests in land including various categories of raiyats, madhyasvatvas and landholders. Under this Act the powers of the superior landed interests to make arbitrary enhancement of rent were severely curtailed.
LAND IN THE NAME OF KARNATAKA
Though several etymologies have been suggested for the name Karnataka, the generally accepted one is that Karnataka is derived from the Kannada words karu and nādu, meaning elevated land. Karu nadu may also be read as Karu (black) and nadu (region), as a reference to the black cotton soil found in the Bayaluseeme region of Karnataka.
CASE LAW ON KARNATAKA LAND REFORMS ACT AND TRANSFERS
Under Section 61 of Karnataka Land Reforms act 1961. Occupancy granted to the tenant by the final order of the tribunal cannot be transferred by the occupant for 15 years from the date of final order. The land can be partitioned among the family, can be bequeathed by will, but it cannot be Sold, Gifted, Exchanged, Mortgaged, Leased or assigned.
A CASE BEFORE FULL BENCH OF HIGH COURT OF KARNATAKA WAS DECIDED BY HON’BLE JUSTICES N.K. JAIN, H. RANGAVITTALACHAR AND V.G, SABHAHIT, HAS PASSED A LAND MARK JUDGEMENT RELATED TO TENANTED LANDS AND PTCL ACT. In Mohammed Jaffar and Another V State of Karnataka and Others, Reported in 2003(1) Kar. L.J. 337 (FB).
1. Tenanted land that stood vested in State Government as on 1-3-1974 under Land Reforms Act, does not become "granted land" when occupancy in respect of such land is conferred on tenant, merely because tenant happens to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted land in State Government is not absolute but is subject to vested right of tenant to get occupancy conferred on him — Conferment of occupancy right on tenant by Land Tribunal does not amount to making grant of land — Alienation of land in respect of which occupancy was conferred on erstwhile tenant, held, is not hit by prohibitions contained in Act of 1978.
2. A bare reading of Section 3(l)(b) of the PTCL Act makes it clear that the land should be granted by the Government and such land is to be granted to a person belonging to Scheduled Castes or the Scheduled Tribes under the relevant law including agrarian reforms. Once the land is held to be a granted land, the restriction contained in Section 4 regarding the apprehension of transfer of land would apply. . . . Section 44 of the KLR Act deals with vesting of the land in the Government. Therefore, the land which is not granted by the State Government cannot prima facie be hit by the provisions of the PTCL Act.
3. All the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the KLR Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration or pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right- Section 45 of the KLR Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Sections 48 and 48-A deals with the constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48-A of the KLR Act on a tenant who was cultivating the land personally on 1-3-1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1-3-1974 is the declaration of his occupancy right of land on 1-3-1974, by the Tribunal. The preamble to the KLR Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1-3-1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form 10.
4. Conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1-3-1974 and the land which has vested with the Government, the tenant js declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1-3-1974 he cannot be denied conferment of occupancy right. .... Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. The vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy by Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974.
5. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The land in respect of which the occupancy right has conferred under Section 48-A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1 }(b) of the PTCL Act.
AGRICULTURAL LAND
It includes garden land and land capable of being used for agricultural purposes or purposes subservient thereto — Whether land in question is agricultural land or not is question of fact, and where that question has been decided by Tribunal on basis of evidence on record and spot inspection, its decision cannot be interfered with in writ petition. Section 2-A(18) of the Karnataka Land Reforms Act defines "land" to mean the land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes garden land. The Tribunal is a fact finding authority. Since it has recorded the findings on appreciation of the evidence available on record, this Court in exercise of the power under accuseds 226 and 227 of the Constitution cannot re-appreciate the evidence and arrive at different findings. — Alban D'Souza v The Land Tribunal, Udupi and Others, ILR 1999 Kar. 243.
AGRICULTURAL LABOURER WITH OTHER AVOCATION TO AUGMENT HIS INCOME
Merely because an agricultural labourer, to augment his income for the maintenance of himself and his family, for some time runs a tea shop in a portion of the dwelling-house, cannot be a ground to deprive him of the right given to an agricultural labourer to register him as an owner of a dwelling-house located in a village, as provided under Section 38 of the Act. — Dhananjaya Viswesvaraya Hegde v fatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. L.J. 233A.
PUNJA LANDS
Punja lands in Dakshina Kannada District are not agricultural lands as only thatched grass are grown in those lands naturally and such lands are not brought under cultivation. . . . Where punja land is brought under cultivation, it is not a bar on the parties to adduce evidence that such land is brought under cultivation for agricultural purpose. No such evidence is there in this case. — Subhakar and Others v The Land Tribunal, Karkala Taluk, Karkala and Others, 1999(4) Kar. LJ. 524 (DB).
Tenancy for non-agricultural purpose — Claim to occupancy — Where lease is for non-agricultural purpose, merely because portion of land leased is used by tenant for running poultry farm and for horticulture, such land cannot be held to be agricultural land — Claim for occupancy, held, is not sustainable. In the instant case, the land in dispute is described as "punja land" in the earliest lease deed of 1935. Now the said land is situated within the City Corporation limits of Mangalore Town. The dominant purpose for which the land was leased is clearly indicated in the said lease deed that it was for the purpose of construction of a house and for possession and enjoyment of the same. Even the subsequent rental agreement dated 28-12-1945 taken by the petitioner as a mortgagee of the mulageni rights from the mulagenidars also indicates that the purpose of the said lease is for residential use of the house constructed thereon on a monthly rent fixed for a period of 11 months. The petitioner described himself as a 'Salesman' in Form No. VII filed by him and even in the evidence given by him before the Land Tribunal, he has given the same occupation of him. The land in dispute is described as hillock area in the Commissioner's report. Mere existence of trees in the compound of house constructed on punja land does not convert the land into an agricultural land when the dominant purpose of the lease is found to be for non- agricultural use and when the petitioner was not found to be an agriculturist by the notified date. The subsequent use of some portion of the land as a poultry farm, for growing vegetables and for raising some fruit bearing trees after the notified date cannot be taken into consideration for the purpose of ascertaining whether the lease of the said land was for agricultural purposes by the notified date. Since it is found that the dominant purpose of the lease was only for non-agricultural purposes, the Appellate Authority was justified in holding that the land in dispute was not an agricultural land by the notified date and that the petitioner was not the tenant of the land in dispute for agricultural use of land by the notified date. — Narayana Devadiga (Deceased) by L.Rs. v Smt. Sharada and Others, 2002(1) Kar. L.J. 581A.
REMAND TO TRIBUNAL FOR FRESH DECISION ON LAPSES
The Judge in a writ petition quashing the order must remit the case to the Tribunal for a fresh disposal after affording opportunity to the petitioner. The case should not be decided by the Judge on re-appreciation of the evidence. The definition of agricultural land includes land which is capable of being used for agricultural purposes and also a forest land. Hence land on which casurina is raised is capable of being used for agricultural purposes and even as forest land it is agricultural land within the definition, Raising of casurina trees which are not of spontaneous growth is cultivation within Section 2(10) of the Act. Byalappa v State of Karnataka and Others, AIR 1982 Kant. 79
ACTS SUB-SERVIENT TO CULTIVATION OF LAND
Petitioner made an application for grant of occupancy in land measuring 8 guntas in a Survey No. Chilly plants were raised in two guntas and the remaining extent of land was used as thrashing floor and for stacking hay. Land as defined in Section 2(18) means not only land which is used for raising crops, but also land which is used for purposes sub-servient to raising crops. Thrashing of crops can reasonably be regarded as being sub-servient to growing of crops. Likewise, stocking fodder for feeding bullocks maintained by an agriculturist for ploughing the land can also be regarded as sub-servient to cultivation of land. Thrashing of crops can also reasonably be regarded as improving agricultural produce. Hence, the land can be regarded as land cultivated for the purpose of Section 45. It is only if the applicant was cultivating the land as tenant, he would be entitled to be registered as occupant; if he was cultivating the land as mortgagee in possession, he would not be entitled to be registered. Gurubasappa v Land Tribunal, Hirekerur, 1980(1) Kar. LJ. Sh. N. 132.
TENANCY FOR NONAGRICULTURAL PURPOSE — CLAIM TO OCCUPANCY.
The Act does not apply to all kinds of lands- in the State and to all categories of tenants. If the relationship of landlord and tenant does not rest on agrarian relations, the tenant who is in possession of the land, even if the land is an agricultural land not avail himself of any benefit under the Act. The governing factor to bring the case within the fold of the Act will be the relationship of landlord and tenant based on agrarian relations. The tenancy must relate to agriculture in order to bring the relationship of landlord and tenant within the ambit of agrarian relations. In the district of Dakshina Kannada there was no classification of lands as agricultural and non-agricultural. When a lease is evidenced by a written document in which the object or purpose of the lease is stated, then the purpose of the lease as stated in the lease deed concludes the question whether the land demised is agricultural land and the lessee a tenant within the meaning of the Act, notwithstanding the fact the land demised is a nanja or bagayat land. Tenancies and leases of land to which the Land Reforms Act applies are also subject to the prohibitions and limitations prescribed under Section 108(O) of the T.P. Act. Hence, a lessee cannot take advantage of a wrong committed by him by using the land leased for a different purpose than for which it was leased out to claim the benefit under the Act. The lands were demised for specific non-agricultural purposes, the purposes being industries, business, trade, manufacturing, residential, cinema theatres and any other purposes. The, tenancy was by the English calender month, rent being payable on the 5th of the succeeding month. In case of default interest was payable on the arrears. The lessee was directed to pay all taxes relating to the lands and to deduct the same from the rent. The lessee could erect such machinery, effect improvements, Repairs and do new construction or re-construction of buildings etc. The lands were situated within the Mangalore Municipal Limits. The properties demised were four items of land measuring 3 acres 69 cents classified as bagayat consisting of one tiled old main house, one small tiled old out house, thatched cow shed and bath shed, two wells, 40 mango trees, 6 jack trees, 75 coconut trees and 50 cashew trees. The lessee ran a cashew factory therein. The holding was not an agricultural holding and the lessee was not entitled to conferment of occupancy rights under the Act. The lessee could not also be held to be a deemed tenant within Section 4 of the Act. The emphasis in Section 4 is on 'lawful cultivation' and not 'lawful possession'. If a person taking agricultural lands for purpose of industries, commerce etc., uses it for agricultural purposes, his possession of the land will be lawful, but cultivation would not be lawful, as it would offend Section 108(O) of T.P.Act. — Bhamy Panduranga Shenoy v B.H. Ravindra and Others, AIR 1980 NOC 115.
ENTRIES IN RTC AND AVERMENTS IN SALE DEED
Entries in record of rights raise presumption that what is stated therein is correct, but averments in sale deed have no such presumptive value and facts stated therein have to be proved to be believed — Court cannot disbelieve entries in record of rights in absence of evidence to rebut presumption arising there from and merely on basis of unproved averment in sale deed. Muniyappa v G. Hanumanihappa (Deceased) By L.R. and Others, 2003(2) Kar. LJ. 294.
PERSONAL CULTIVATION OF LAND OF WIFE BY HUSBAND
A husband cultivating personally land belonging to his wife would be an agriculturist within Section 2-A(3) of the Act. Such cultivation would amount to cultivation on his own account within Section 2-A(11). Where one member of the family gets cultivated land of the owner member of the family through hired labour under his own supervision, the said cultivation by such supervising member would fall within the definition of personal cultivation in Section 2-A(11). Such construction of Clause (11) of Section 2-A does not militate against the explanations to the clause. The three explanations had been added to mitigate hardship which would have otherwise resulted to certain persons if the explanations had not been added. In all the three cases, i.e.. cultivation of the land held by persons covered by Explanation I or by a joint family covered by Explanation II or by a company or association etc., covered by Explanation III, through hired labour under the supervision of an employee, would be considered on account of such persons, although if these explanations had not been added, such would not be the case. This however would not prove the converse, that is, if a member of the family as defined by clause (12) gets cultivated land belonging to his family member through hired labour under his supervision, such cultivation of the land would not be treated as cultivation by such supervising member on his own account. The above construction of clause (11) would not defeat the objects of Section 80. — State of Karnataka and Another v Vasudem R.P., 1976(2) Kar. L.J. 382.
CULTIVATE PERSONALLY
Petitioner was member of a joint family consisting of himself and four brothers and the pahani extracts showed that petitioner was cultivating the land as a tenant from 1964 upto date. Petitioner's application for grant of occupancy was rejected solely on the ground that he was employed as Secretary in a land mortgage Bank. Held: It was the duty of the Tribunal to examine whether petitioner answered the definition of 'agriculturist' who cultivated lands personally. Under Section 2(11) to 'cultivate personally' includes cultivation of the land by the labour of any member of one's family or even hired labour. Further the pahani entries are presumed to be true until they are replaced by some other entries. The order of rejection cannot hence be sustained. — Raniasingh H.R. v Nagesh Rao D, ILR 1977 Kar. 1350
WIFE CANNOT CLAIM TENANCY UNDER HUSBAND
A member of the family as defined in the Act cannot claim tenancy under another member of the same family and seek registration of occupancy. Thus, a husband or the wife, as the case may be, cannot claim tenancy right as against the other in respect of his or her land. — A. Jalajakshi D. Aiwa v Meenaxi Naik and Another, 1980(2) Kar. LJ. 60.
"HADI" LAND
Land used for collecting leaves from shrubs and plants grown thereon for manuring adjacent land used for agricultural purpose — Such land, in District of Dakshina Kannada, comes within definition of "land", as such land cannot be considered as land used for non-agricultural purposes — Grant of occupancy in respect of such "hadi" land along with occupancy in respect of adjacent agricultural land is to be held in order. Ramachandra Devastanam, Sawada v Subbanna Shetty and Others, ILR 1998 Kar. 1588.
LAND WITH BUILDING — IF AGRICULTURAL LAND.
While determining whether the premises should be regarded as agricultural or non-agricultural, one must look to the dominant characteristics of such premises. The mere fact that there are some plants and trees in the compound of a house will not render the premises an agricultural one. Like-wise the mere fact that in an agricultural land there is a house used as a farm house will not render such premises non-agricultural. Not one factor is decisive and the cumulative effect of all factors should be considered. Where the premises were situated within municipal limits, were assessed to municipal tax, the tenancy was monthly and not annual, that the rent was monthly and not annual and the tenant was not an agriculturist by profession, held, the conclusion that premises are non-agricultural cannot be said to be erroneous. — Vanajakshi v land Tribunal, Udupi and Another, 1979(1) Kar. LJ. 412 (DB).
HOUSE WITH LAND FARM HOUSE
Defendant took the house and land appurtenant on lease for 11 months for a consolidated rent. After the expiry of the lease, the plaintiff sued for eviction. The land measured more than four acres and there were some coconut plants on the land. The lessee was a student and not a farmer. There was nothing to show that the lessee was cultivating in the land appurtenant. On a reading of the lease deed, it was manifest that what was let out was the house along with the land appurtenant and it was a lease of a dwelling house. A farm house is a house constructed in the farm which is cultivated by the farmer to facilitate him in the better cultivation of the farm. Even if a few coconut trees or other trees are found around the house, that would not convert the residential house into a farm house nor the tenant into an agriculturist. Lakshmana Gowda v Dorris, J. Coates, 1983(1) Kar. LJ. Sh. N. 85.
DWELLING HOUSE OF AGRICULTUAL LABOURERS
Even if the land was converted for non-agricultural purposes, an agricultural labourer, who is residing in a dwelling-house located in a village, will not lose his right to be registered as an owner in respect of the said land. Section 38 of the Act confers power on the Tribunal to register an agricultural labourer, who ordinarily resides in a dwelling-house on a land not belonging to him situated in any village. The word 'land' referred to in Section 38 of the Act in the context and in the background of the purpose of Section 38 of the Act, should not be given a restricted meaning as an agricultural land as defined under Section 2(18) of the Act. Section 2(18) of the Act must be understood for the purpose of conferment of occupancy right. The object of Section 38 of the Act is to register an agricultural labourer as an owner thereof in respect of the house and the land appurtenant thereto. While the object of conferment of occupancy right on an agricultural tenant is to give occupancy right to a tiller of the land, the object of Section 38 of the Act is to register an agricultural labourer who is residing in a dwelling-house not belonging to him located in a village, as owner thereof. In that background, if Section 38 of the Act is understood the nature of the land as to whether it is an agricultural land or a non-agricultural land, will not make any difference. The only requirement to register a person as an owner of a dwelling-house located in a village, is that he should be an agricultural labourer. Dhananjaya Visweswara Hegde v Jatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. LJ. 233.
CONVERTED LAND
Agricultural land — Converted to non-agricultural use — Lease of building constructed on such land — Whether agricultural lease or building lease — Claim for occupancy — Where land was converted as non-agricultural land prior to 1-3-1974, and building constructed thereon was leased on monthly rental basis, such land cannot be considered as agricultural land and Tribunal has no jurisdiction to grant occupancy right to tenant claiming same. In this case, the HRC Court has come to the conclusion that the dominant purpose of taking the property on lease was for residential purpose and not for agricultural purpose. The property also was converted to non-agricultural purpose. The rent also was fixed on monthly basis and it was taken only for two months. The crop grown in the remaining area is only a few fruit bearing trees in the compound. For the foregoing reasons, the argument that still it is an agricultural land and not a non-agricultural land, is liable to be rejected. K. Jathappa Rai v State of Karnataka and Others, 2000(4) Kar. LJ. 503.
Non-agricultural land does not come within purview of Act — Such land does not vest with State Government under Section 44 of Act — Land Tribunal has no jurisdiction to enquiry into claims for occupancy in respect of such land. If the land is not a land which is used or capable of being used for agricultural purpose or purposes subservient thereto, having been alienated for non-agricultural purpose, in accordance with the provisions of the relevant Land Revenue Act, it cannot be a subject-matter of enquiry before the Land Tribunal as the Land Tribunal gets no jurisdiction to enquire into the claim for occupancy in respect of such lands. The land in question being a non-agricultural land as on 1-3-1974, is not a "land" as defined by Section 2-A(18) of the Act and therefore, it did not fall within the purview of the Act. It also did not vest in the State Government under Section 44 of the Act. Therefore the Land Tribunal did not get jurisdiction to enquire into the claim for occupancy. — Mallikarjun Co-operative Housing Society Limited, Hubli v State of Kamataka and Others, 1995(6) Kar. L.J. 46A.
LAND DOES NOT INCLUDE HOUSE-SITE
Land does not include house-site or land used exclusively for non-agricultural purposes and no occupancy right in respect of such land can be conferred on occupant thereof. Tenant has put forth his claim to tenancy with respect to the particular area of 24 cents as an independent land under his cultivation. But on his own showing this plot of 24 cents was not at all a cultivable land in that it was his dwelling premises exclusively in his possession and enjoyment as on the material date 1-3-1974. It is not his further case that this 24 cents of land was part and parcel of a single land under his cultivation as a tenant so as to characterize his said house as a farm house. The land in respect of which the person in occupation thereof is entitled to claim tenancy under the Act must be the "Land" within the meaning of the definition contained in sub-section (18) of Section 2-A of the Act A plain reading of the definition of the land contained in Section 2(18) of the Act makes it clear that "the land used exclusively for non-agricultural purpose" does not fall within the purview of the Act and therefore the respondents' claim of tenancy with respect to the said 24 cents of the land is legally untenable. Both the authorities below have erred in law'in considering his claim of tenancy with respect to the said 24 cents of the land whole of which is used by him as a dwelling house. — Kittanna Rai (deceased) by L.Rs v Sheena Poojary and Others, 2000(1) Kar. L.J. 341.
CONSTITUTIONAL VALIDITY
Section 44(2) of the Amendment Act which gives retrospective effect to the decision of Section 14 and also nullifies judgments, decrees or orders, by removing the basis on which such judgments, decrees or orders was founded, is not unconstitutional. The Amended Act in so far as it provides for vesting in the State of tenanted lands and surplus lands in excess of the ceiling limit owned by religious institutions is not violative of Article 26 of the Constitution. Article 26 does not affect the power of the State to acquire any property belonging to a religious denomination. The Amendment of Section 63 further reducing the ceiling limit cannot be said to be unreasonable. The reduction in the ceiling limit resulting in acquisition of some lands under personal cultivation does not offend the second proviso to Article 31-A. The Amendment of the definition of 'family' in Section 2(12) by including unmarried daughters is not liable to attack as violative of Article 14 of the Constitution. Amendment of Section 15 by which right to resume by widows, unmarried daughters, minors and physically handicapped has been taken away is protected by Article 31-A of the Constitution. The protective cloak of Article 31-A of the Constitution is available to the machinery provisions of the law relating to agrarian reforms. Thus the protection is available to the provisions which relate to Constitution of Special Tribunals and conferring upon them adjudicatory jurisdiction. In spite of the infirmity in not providing for security of tenure of the Tribunal, and the absence of a provision for appeal, revision or reference from orders of Tribunals and for transfer of cases from one Tribunal to another, the constitutionality of Section 48 is not open to challenge, as it enjoys the protection under Article 31-A. Having excluded the jurisdiction of Civil and Criminal Courts under Sections 132 and 133, it was competent to the legislature to take away such jurisdiction retrospectively also and to render ineffective orders already made by such Courts. Hence Section 133(l)(iii) providing that all interim orders by Courts shall stand dissolved or vacated, is valid. — Sri Jagadguru Durundundeswara Sidha Sansthan Math at Nidasosi, Belgaum District v State of Karnataka and Another, 1983(1) Kar. L.J. 489.
What the 2nd proviso to Article 31-A(1), Constitution states is that whenever any land under personal cultivation which is within the ceiling limit applicable to a person as in force on the date of such acquisition is acquired by the State Government, compensation will have to be paid at a rate not less than the market value thereof. The said proviso does not impose any fetter on the legislature to reduce the ceiling limit from time to time if it wishes to do so. Bhaskar v State of Karnataka, AIR 1975 Kar. 55
ASSIGNEE FROM PERMANENT TENANT AFTER 1-3-1974 — RIGHTS
Where a mulgeni (permanent) tenant was in possession and personally cultivated the lands, on 1-3-1974 transferred his mulgeni right by registered gift deed on 15-4-1974. Under Section 44(1) of the Act, the lands held by the permanent tenant stood transferred and vested in the State Government and under Section 45(1) the only right, given to the tenant was to be registered as an occupant; and the right possessed by the tenant after the date of vesting (after 1-3-1974) was not transferable and as such the donee did not acquire the right to get himself registered as an occupant. Even assuming that the gift was a valid transfer, he could not be registered as an occupant as he was not a tenant of the land or personally cultivating the same on the date of vesting. Shambhu Eshwar Hegde v Land Tribunal, Kumta and Another, 1979(2) Kar. L.J. 194.
APPLICABILITY OF THE DEFINITION OF 'PERSON' IN THE GENERAL CLAUSES ACT.
The word 'person' is not denned in the Karnataka Land Reforms Act. Therefore, the definition given in the General Clauses Act will apply. The word 'person' includes a 'joint family' and in view of Explanation II to Section 2, it is clear that the Tribunal has the power to decide whether a joint family is or is not a tenant under Section 112(b) of the Act. Explanation II to Section 2 provides that in the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. Hence, the claim of the appellants that they have been personally cultivating the lands, assuming to be correct, Explanation II to Section 2 would be attracted. — Guruvappa, K. and Another v Smt. Manjappa Hengsu and Others, ILR 1985 Kar. 386 (DB). Parwetewwa v State of Karnataka, ILR 1985 Kar. 1257.
PERSON CLAIMING TITLE — LAWFULLY CULTIVATE THE LAND.
To be a deemed tenant, one must lawfully cultivate the land belonging to another person. The word 'lawful' requires that the possession must be capable of being defended successfully, if action is taken. A deemed tenant also should pay rent. A person lawfully cultivating the land of another must necessarily pay rent for use and occupation. A person cultivating land claiming it as his own is not lawfully cultivating the land belonging to another. It is a case of dispute relating to title. A person claiming to remain in possession as owner cannot be deemed tenant. — Chokkannagari Namyanappa v Land Tribunal, Qiintamani and Another, 1982(2) Kar. L.J. 21.
Tenant' definition does not include persons who were tenants sometimes before 1-3-1974 or sometime before coming into operation of Land Reforms Act — Person claiming to be a tenant must show that he has been and he is in cultivation of land even on 1-3-1974. — Vilas Alias Gundu Ananthacharya v State of Karnataka, ILR 1987 Kar. 1428.
If a person in possession of land under such an agreement continues in possession of the property after the expiry of the period of the agreement his possession will not be that of a tenant in the absence of proof that an agreement of tenancy was entered into after the expiry of the period. Hence the question of applying the provisions of the Karnataka Land Reforms Act and declaring him as a tenant would not arise. — Veerappa Rudrappa v Land Tribunal ILR1976 Kar. 116.
BEQUEATHING TENANT'S INTEREST BY WILL
Statute has premptorily provided succession which cannot be defeated by tenant by bequeathing his interest — No person can be called a tenant unless he cultivates land lawfully — When a tenant cannot bequeath right of tenancy, person claiming benefit under such a Will cannot be termed as a tenant — Such person not entitled to grant of occupancy right. — Thimmakka Kom Venkanna Naik v Land Tribunal and Others, ILR 1987 Kar. 3336 (DB).
TRUST PROPERTY AND TENANT
Agriculturist who cultivates personally land he holds on lease from landlord — Person coming within definition of tenant as on 1-3-1974 is entitled to grant of occupancy right in respect of land held by him on lease. The petitioner's father was inducted as a lawful tenant with effect from 19-6-1951 and the said lease was also approved earlier by the District Judge on 27-5-1951 as provided for in the scheme of the Management of the Trust, for the said scheme provided therein that all the leases of the agricultural land for more than three years of the respondent 1-Trust could be made only with the previous sanction of the District Judge. Therefore, the petitioner was lawful tenant as on 1-3-1974 within the meaning of Section 2(34) of the Karnataka Land Reforms Act. . . . The petitioner is entitled to for grant of occupancy right by the Land Tribunal and therefore the rejection of the claim by the Land Tribunal is not justified. — Satyamurthy v Siddaroodmath Punch Committee, Hubli and Others, 1997(2) Kar. L.J. 631.
TENANT IN POSSESSION AFTER DETERMINATION OF TENANCY — RIGHT TO OCCUPANCY.
Respondent 2 had cultivated the lands as tenant even prior to 1956. Petitioner — Landlord sent a registered notice under Section 31(i)(a) BTAL Act terminating respondent 2's tenancy on 28-3-1955 and on the expiry of the period of one year, filed an application for possession. The matter went up to the High Court which upheld the claim of the landlord and granted 3 months time to respondent 2 to harvest the standing crop, which time expired on 8-12-1961. respondent 2 filed application claiming occupancy rights and the same was granted by the Land Tribunal. On the writ by landlord. After the tenancy of respondent 2 came to be validly determined by the notice issued by the petitioner, he (R-2) continued to be in possession not as a tenant but as a tresspasser. Respondent-2 was not a tenant within and protected by Section 2(e) Tenants Temporary Protection from Eviction Act, 1961. Respondent 2 was not a tenant on the lands in question as on 1-3-1974 though he was cultivating these lands. When that is so, the lands could not, in law, vest in the Government. Hence, no question of conferring occupancy right on respondent 2 arises. Basayya v Land Tribunal, Hungund and Another, 1978(2) Kar. L.J. 131.
DISPUTES CONNECTED WITH AGRARIAN RELATIONS
Section 4 of Act 31 of 1974, is applicable to cases where relief of injunction is claimed in disputes connected with agrarian relations; and has no application to suits for enforcement of easementary right or rights of that nature. Where the plaintiff claimed that by virtue of an agreement entered into between the parties, plaintiff had acquired the right to convey water for irrigating his land through the lands of the defendants, a suit to prevent infringement of a right of this nature is not one to which Act 31 of 1974 has any application. The power of granting interim injunction ex parte has to be exercised with great caution by Civil Courts. The Trial Court was justified in making the order of temporary injunction ex parte. — Gurupadayya Nagayya v Mahadu Arjun, AIR 1976 Kant. 66 : ILR 1976 Kar. 151.
DEEMED TENANCY — CLAIM BY PERSON CULTIVATING LAND
Claim is sustainable only if possession and cultivation is lawful — Where cultivation of land by person is without authority of real owner of land, claim for deemed tenancy on basis of such cultivation being carried on is not sustainable. Deemed tenancy is available only in the case of tenant who is lawfully cultivating the lands. Admittedly in the case on hand the real owner, the Mutt has not permitted or granted the respondent to cultivate the land belonging to Mutt. Therefore Section 4 is not available to the petitioner. — Kanthu v The Land Tribunal, Siddapur, Uttara Kannada District and Others, 2001(2) Kar. LJ. 477B.
CASE LAW ON RIGHT TO PROPERTY
Right to property under Art 300A of constitution of India: No person can be deprived of his property save by authority of law. This implies further without paying just compensation for it. Maneka Gandhi case: AIR 1978 SC 597.
Law which authorizes compulsory acquisition should be a law of the legislature or a rule having the force of law. B.D.Chandra Mohan case: AIR 1982 SC 33.
Art 31(1) & (2) OF THE CONSTITUTION OF INDIA imposes limitations on the power of the state and declares the corresponding guarantee of the individual to his right to property. Swami Motor Transport co.(p)ltd case: AIR 1963 SC 864.
Purchasers of lands proposed for acquisition subsequent to the publication of preliminary notification do not get any right to challenge the acquisition proceedings. ILR 1998 Kar 1441, ILR 1998 (4) Kar 4172.
CASE LAW ON RULE OF ESTOPPEL
If a man either by words or by conduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. FOR FULL CASE CLICK HERE
CASE LAW ON INAM LANDS
INAM LANDS CASE BEFORE SC
1979 amending act takes away jurisdiction of DC to confer occupancy rights over inam lands and gives to Land Tribunal. In case of Shri Kudli Sringeri Mahasamsthanam Kudli case Reported in ILR 1992 Kar 1827 Division Bench of KHC while dealing with issue of religious and charitable imams struck down the amending act. The issue was settled by Supreme Court by partially overruling the order stating that the personal and misceleneous imams are not affected by such order.FOR FULL CASE CLICK HERE
UNDER MYSORE (PERSONAL AND MISCELLANEOUS) INAMS ABOLITION ACT, 1954, SECTION 5 — PERMANENT TENANTS ARE REGISTERED AS OCCUPANTS ON CERTAIN CONDITIONS. THE CONDITION DOES NOT INCLUDE ANY RESTRICTION ON ALIENATION.
1. Granted land — Definition of — Only Government land granted to person belonging to any Scheduled Caste or Scheduled Tribe, under provisions of any enactment, is to be considered as "granted land"
2. Tenanted inam land that stood vested in State Government consequent upon abolition of inams, does not become "granted land" when occupancy right in respect of land is conferred on tenant thereof, merely because tenant happened to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted inam land in State Government is not absolute but is subject to vested right of tenant to got occupancy conferred on him and conferment of occupancy right on tenant by Special Deputy Commissioner does not amount to making grant of land — Alienation of inam land by tenant after fitting occupancy right conferred on him is not hit by prohibition contained in Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.
3. Hon,ble Justice D.V. Shylendra Kumar, Held in a case of M. Munikenchappa v The Special Deputy Commissioner, Bangalore District, Bangalore and Others, Reported in 2004(3) Kar. L.J. 579.: The land in question was the subject-matter of the- order of the Special Deputy Commissioner exercising his jurisdiction under Section 5 of the Act. An order of this nature is one passed for recognizing a pre-existing right of a person who is already in possession. The Special Deputy Commissioner virtually functions as a Tribunal for such purposes, In respect of lands for which occupancy rights are conferred such a land cannot be construed as a 'granted land' under the provisions of Section 3(l)(b) of the Act. The subject land which was also the subject-matter of the order dated 3-2-1962 passed by the Special Deputy Commissioner and in exercise of his powers under Section 5 of the Inams Abolition Act, cannot be construed as a 'granted land' within the meaning of this phrase occurring in Section 3(l)(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.
THE MYSORE (PERSONAL AND MISCELLANEOUS) INAMS ABOLITION ACT, 1954 [MYSORE ACT No, 1 OF 1955]
THIS ACT’S VALIDITY IS DISCUSSED IN A.R. VENKATACHALA IYENGAR V STATE OF MYSORE REPORTED IN 1964 Mys. LJ. Supp. 171.
It is not correct to state that an inam grant represents only the alienation by the State either partially or wholly of its rights to levy assessment and as it does not involve the grant of land or any other right in the land all that could vest in the State by the notification under Section 1(4) was the right to the land revenue and that no right to land itself or any other right relating to the land could vest in the State. Differences between the position of the erstwhile inamdars of inam villages and owners of large holdings in ryotwari villages are inevitable when a programme of land legislation is undertaken by the Legislature in stages as it necessarily must do. There is nothing in the Act which exempts unsurveyed villages from the operation of the Act. The creation of a category of tenants called quasi-permanent tenants with certain rights is within competence of the legislature, and further inamdars who have lost all their rights in the inams have no locus standi to question the manner in which rights in inam lands are disposed of. It being entirely within the power of the legislature to fix the quantum of compensation without reference to the actual value of the items acquired, it follows that the different bases adopted for different items cannot be questioned. The provision in Section 6(1)(2) enabling quasi-permanent tenants to be registered as occupants if they had been unlawfully dispossessed by the inamdar during the period indicated is not vague. Placing the burden of proof in regard to quasi-permanent tenants on the inamdar is within legislative competence. Grants and rights safeguarded by earlier statutes could be altered by the competent legislature and it cannot be challenged. Apart from the express inclusion of the term 'inam' in Article 31-A (2) (d) of the Constitution, the definition of estate in Mysore Land Revenue Code includes the interest of an inamdar in his holding. Under Section 11 of the Act land revenue is payable only with effect on and from the date of vesting and is not retrospective in its operation. The same considerations apply to crops on the land raised before the vesting and the rents or other amounts, due from tenants in respect of any period prior to the vesting. While any clear provision for retroactivity has no doubt to be given full effect, there is no warrant for depriving the inamdars of pre-existing rights in the absence of a specific provision depriving them of such rights. There is no reason for denying inamdars copies of circular issued by Government calling upon tenants to deposit rent, since it affected rights of inamdars. The instructions making tentative arrangement for payment of rents are not irregular or improper. Section 9-A making tenancies heritable relates to land tenure and is valid. It is not all enfranchised inams in respect of which full land revenue assessment is payable that are excluded under the Act. If the amount payable by the holder of an enfranchised inam falls short of the full assessment reckoned on the basis of a survey of the village, such inam will not come under the exemption. The definition of estates in Mysore Land Revenue Code includes every variety of interest in land including a ryotwari tenure. Enfranchisement does not deprive the holding of the character of an inam altogether in the case of inams which do not pay to Government the whole of the assessable land revenue, since the difference necessarily represents the alienated or transferred portion of such revenue.
Where after the vesting in Government of the inam village plaintiff sued for a declaration that he was a permanent tenant of certain lands in the village immediately before the vesting of the inam village and for possession: Held, the Civil Court could grant neither the relief for declaration nor the one for possession. The effect of Inams Abolition Act was that the relationship of landlord and tenant as between the Inamdar and the permanent tenant whoever he was, became extinguished when the inam village vested in the Government, and the only right or privilege to which the permanent tenant, in the inam village became entitled- on the extinguishment of the permanent tenancy was to get registered as occupant in -respect of the lands of which he was a permanent tenant before the date of vesting. Plaintiff's remedy was by way of an application for registration under Section 5 read with Rules. — Kempamma v S. Kempanna 1964(2) Mys. L.J. 444.
In 1958 plaintiff brought the suit for a declaration that he was the absolute owner of certain lands and a house and for possession thereof, on the allegation that on October 1, 1951 there was unlawful dispossession by defendants. The plaintiff in addition sought a decree for past mesne profits and desired an enquiry into future mesne profits. The plaintiff also asked for possession of some movable properties or in the alternative for damages. The lands involved in the suit were situate in an inam village and that village vested in the Government during the pendency of the suit on February 1, 1959 under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954. Held, the jurisdiction of the Civil Court to try the suit was not divested by reason of the vesting of the inam in the Government under the Inams Abolition Act. The jurisdiction to try the suit in respect of the house and movables stood in no manner affected by the vesting under the Inams Abolition Act. The question as to who was the owner of the suit land either as inamdar or in the exercise of any other right during the period between the date of the institution of the suit or at any other anterior point of time to the point of time relevant for purposes of Sections 4 to 9 of the Act, which is the point of time immediately before the date of vesting, and whether plaintiff was entitled to mesne profits were not questions which could be adjudicated upon by the Deputy Commissioner but only by the Civil Court and the subsequent vesting of the inam village in the Government conferring cetain powers on the Deputy Commissioners to decide claims for registration cannot divest the jurisdiction which resided in the Civil Court in that matter. — Rangappa v Chinnappaiah, 1965(1) Mys. LJ. 145.
The Act relates to agrarian reform and is protected by Article 31-A of the Constitution and cannot be challenged on the ground that the Act does not provide for adequate compensation. Since Article 31 provides for express limitations on the power to acquire property there is no room for implying any limitation in Entry 36 of List II. — B. Shankar Rao v State of Mysore, AIR 1969 SC 453.
Miscellaneous Inams does not include Talari service inams — Hence order granting of such land under the Act void — Sale of such land by grantee confers no right. In clause (d) of sub- section (3) of Section 1 of the Act, it is abundantly made clear that service inams held by Talaris are excluded from the purview of the Act. Therefore, the granting authority viz., the Deputy Commissioner cannot have power to grant such a land. Grant cannot be sustained as it is one without jurisdiction and it does not confer any right, title or interest on the grantee. The vendee gets no title over the property as his vendor himself has no title to be conveyed. — Muniyappa v State and Others, ILR 1991 Kar. 3504.
The inamdar executed a simple mortgage of the inam village in 1929 and in 1932 executed a lease in favour of defendant who was then a minor. The mortgagee sued on the mortgage and in execution purchased the village and obtained symbolic possession and then sold the village to plaintiff in 1941. In 1951 plaintiff sued for possession. In 1961 the suit was decreed in second appeal by the High Court. During the pendency of the appeal the Special Deputy Commissioner for inams passed orders registering the defendant as permanent tenant. Held, (i) by reason of Sections 3 and 4 of the Inams Abolition Act the plaintiff had no right to possession as all interest in the inam vested in the State. (ii) As the mortgagee was not entitled to possession under the mortgage, any alleged adverse possession by defendant against the mortgagor would not affect the mortgagee and it was only from the date that the mortgagee obtained symbolic possession that any adverse possession by the defendant could possibly arise and the suit within 12 years of that date was not barred under Article 144, Limitation Act. (iii) But plaintiff was entitled to mesne profits from the date of suit till the estate vested in the State (2-10-1959). The Act does not affect the right of an erstwhile inamdar to obtain arrears of rent or mesne profits upto the date of vesting. The order of the Special Deputy Commissioner registering defendant as tenant did not bar the Court from determining the title of the plaintiff in respect of the land upto the date of its vesting in the State. The lease in favour of the minor was void and defendant had no tenancy rights and therefore plaintiff was entitled to recover mesne profits. — Lalithamma v Subbanna, 1969(2) SCWR 414.
Personal Inams abolished — Jodi village came to be vested in State — Kadim tenants seeking occupancy rights — No evidence of Kadim tenancy — Plea of Kadim tenancy and pendency of proceedings before Land Tribunal after-thought and cannot be accepted. — Venugopala Singh v B.M. Chikkaputtappa and Others, ILR 1991 Kar. 2196.
On the abolition of inam tenure, the lands vested in the Government during 1959. Petitioner claiming to be permanent tenant applied for occupancy right and he was granted occupancy in December, 1954 and was required to pay the premium in ten instalments, the last of which was paid in March, 1974. Respondents who were cultivating the lands under petitioner applied for grant of occupancy rights under the Karnataka Land Reforms Act. Held, the vesting of the lands in Government both under Inams Abolition Act and the Land Reforms Act was only notional subject to the rights and interests of the actual cultivators of the lands. Persons entitled to claim occupancy rights under the Acts would be entitled to make their claims. The Authorities should take up investigation into the claims firstly under the Act brought into force earlier. After the rights are determined under the Act, investigation should made into the claims under the other enactment brought into force subsequently. The subsisting relationship between the permanent tenant or holder of the minor inam on the one hand and that of their tenants on the other was not affected by the Inams Abolition Act. This is classified by Section 34-A of the 1954 Act incorporated by Act 16 of 1960. Thus persons cultivating as sub-lessees and tenants under permanent tenants or holders of the inam acquired the status of tenants vis a vis their immediate superior holders and if that relationship continued as on 1-3-1974. Such lands rested in the State Government under Section 44, Land Reforms Act and the tenants could apply for occupancy rights under the Land Reforms Act. — P.R. Rangachar v Land Tribunal Hoskote and Another, 1979(1) Kar. LJ. 457.
One Muniraju claiming to be the son of late Muninagappa filed an application before the Tahsildar for changing the name in the katha and entering his name in the same. The Tahsildar has issued an endorsement to the effect that the said land is vested in the Government and therefore, the question of entering the name of the applicant in the revenue records does not arise. Feeling aggrieved by the same, Muniraju has filed an appeal before the Assistant Commissioner under Section 136(2) of the Act. There also it is not the case of Muniraju that his late father Muninagappa has filed any application for grant of occupancy rights under the Inams Abolition Act. It is significant to note that the Assistant Commissioner has given a specific finding in the order that the petitioners herein have admitted that they are not aware whether late Muninagappa had filed any application for grant of occupancy rights in respect of the land in question before Special Deputy Commissioner. This admission itself suffice for this Court to infer an adverse inference against these petitioners because these petitioners were not parties before the Assistant Commissioner in the appeal filed by Muniraju. Further, in the revision filed by these petitioners before the Special Deputy Commissioner, Muniraju was not a party. Only the petitioners are the parties before the Deputy Commissioner. The Deputy Commissioner has given a specific finding that the said late Muninagappa had no right or title over the land in question. Neither the Jodidar nor alienee in succession have got the occupancy right registered in their names and as such ultimately, the land vested with the Government as unclaimed. In such an event, possession of the land by any individual is unauthorised and it cannot be recognised. Further, it is also admitted by the petitioners that neither their husband nor they made any application for conferment of the occupancy right. Accordingly, their claim was rejected by the Deputy Commissioner. .... The petitioners have not made out a case for interfering with the impugned orders. At no point of time the petitioners nor their late husband, Muninagappa made any attempt or persuaded the respondents to consider their alleged application for grant of occupancy right. Only when the matter was pending consideration before the Revisional Authority, the petitioners have filed a copy of the application alleged to have filed for grant of occupancy rights. The said application is not duly signed. The said document relied on by the learned Counsel for the petitioners is not an authenticated application alleged to have been filed by the late husband of petitioners Sri Muninagappa. There is an inordinate delay of more than four decades. This Court cannot exercise its extraordinary jurisdiction under Article 226 of the Constitution at this belated stage. — Yemakka and Another v The Special Deputy Commissioner, Bangalore Urban District, Bangalore and Another, 2002(6) Kar. LJ. 506.
A purchaser of inam land from a tenant in possession after the land had vested in Government is entitled to make an application for registry as permanent tenant. The interest possessed by his vendor was an interest in respect of immoveable property which could be sold. If the vendor-tenant was competent to make an application under the Act, his right to occupancy stood transferred to the purchaser. — Sreenivasamurthy v State of Mysore, (1975)1 Kar. L.J. Jr. 60, Sh. N. 175.
Inam Land — Grant of — Joint grant in favour of two persons not being members of same family — Grantees take granted land equally between themselves — Such grant would not enure to benefit of brothers of one of grantees — Those brothers have no right or title in granted land and sale and mortgage deeds executed by them are null and void. 1 acre 16 guntas of land in Survey No. 40 has been granted by the Inams Abolition Deputy Commissioner on 4-1-1964 in favour of first defendant Channappa and second defendant Chikkanna 'jointly'. It is clearly stated that this 1 acre 16 guntas of land has been 'jointly' granted. It could be seen from the pedigree that Channappa and Chikkanna were not members of the same family. Second defendant Chikkanna is the son of Channarayappa and this Channarayappa is the brother of first defendant Channappa. If the grant of the suit Survey No. 40 measuring 1 acre 16 guntas were to go to the benefit of the joint family, it would have been granted in favour of first defendant Channappa and his brother deceased Channarayappa. But, to repeat, it has been granted in favour of first defendant Channappa and his brother's son second defendant Chikkanna. ... So the joint grant in favour of first defendant Channappa and second defendant Chikkanna as per Ex. D-l, does not enure to the benefit of second defendant Chikkanna's two brothers, Gangappa and third defendant Cheluvaiah. In view of the aforesaid discussion, deceased Gangappa had no right to mortgage the suit property in favour of first defendant Channappa. The Joint grant as per Ex. D-l was made in favour of first defendant Channappa and second defendant Chikkanna. They have not executed any sale deed in favour of the plaintiff. The sale deed dated 6-12-1968 for a consideration of Rs. 800/- was executed by deceased Gangappa and third defendant Cheluvaiah in favour of the plaintiff. Deceased Gangappa and third defendant Cheluvaiah had no right in the suit property and they were not competent to execute the sale deed in favour of the plaintiff conveying title to the plaintiff. The sale deed does not convey any title to the plaintiff. — Channappa and Another v Channarayappa (Deceased) by LRs. and Another, 1997(5) Kar. L.J. 122A.
.
Admittedly, when the vendor of the 3rd respondent was registered as an occupant in respect of the land in question under Section 9 of the Act, the alleged tank was not used for several years prior to that. No doubt, the vendor of the 3rd respondent had given an undertaking when he was registered as an occupant under Section 9 of the Act that he would hand over possession of the land, if the authorities take steps to restore the tank. The vendor of the land was entitled to be registered as an occupant under the provisions of the-Inams Abolition Act. Merely because he has given an undertaking that he would hand over possession of the land in question whenever the authorities desire to restore the tank in question, does not mean that the authorities can exercise that power at any length of time. The notice of eviction was admittedly issued on 17th July, 1983. The vendor of the 3rd respondent was registered as occupant on 25th July, 1961. It is well established that any power conferred on an authority must be exercised by that authority in a fair and reasonable manner and _for the purpose for which such powers are conferred and in that it is implicit that the power conferred also should be exercised within a reasonable time. This is the principle behind the law of limitation. Notwithstanding the undertaking given by the vendor of the land in question to the 3rd respondent, the authorities should have exercised their right to evict either the vendor or his successors-in-interest within the reasonable time from the date of the grant. ..... The finding recorded by the Tribunal shows that the 3rd respondent has developed the land by raising 200 Coconut plants, 50 Mango trees and 100 Eucalyptus trees on the said land. Therefore, it was not permissible for the Tahsildar to pass an order of eviction against the 3rd respondent after 23 years from the date of grant made in his favour. If it is permitted, it would result in serious injury to the 3rd respondent affecting his property right guaranteed to him under Article 300-A of the Constitution of India. — Buddappa and Others v Deputy Commissioner, Kolar District, Kolar and Others, 2000(1) Kar. L.J. Sh. N. 23A.
Tank bed or other communal land meant for the use of members of the public for cultivation of lands in the vicinity are exempted under the Inams Abolition Act and grant of such lands is illegal. The members of the village community have locus standi to challenge such grants. — Ninganna and Others v Narayana Gowdci and Others, AIR 1983 Kant. 116 (DB).
.
The Civil Court ceases to have jurisdiction to decide the question of title, when once the land vested in the Government under the Inams Abolition Act. All such questions have to be decided only by the special forum created under the Act. Houses are not exempt from vesting under the Inams Abolition Act. The Civil Court has no jurisdiction to decide the question of title even with regard to house property situate on inam land. — Manikyam, C. v R. Thimmiah, 1983(1) Kar. LJ. 328.
This means that the parties should be given the fullest opportunity to produce the oral and documentary evidence on which they rely as also to cross-examine witnesses giving evidence against them and that there should be opportunity for confrontation of contending parties. No decision should be taken on the basis of the report of the Tahsildar placed on record behind the back of the affected party. — Lingasetty v The Mysore Reveiiue Appellate Tribunal, 1963(2) Mys. L.J. 36.
Plaintifl sued for partition of an inam village but then the village had vested in the Government under the Inams Abolition Act. Held, the Court was entitled to issue a commission to the Deputy Commissioner to effect a partition of the lands which could be registered under Section 9 of the Act. Section 9 entitles an Inamdar to be registered as occupant of lands other than those referred to in that section and it is the duty of the Inams Deputy Commissioner to decide which are those which could be registered under Section 9. Where there are two persons who are entitled to registration under Section 9, it is the duty of The Deputy Commissioner to make the necessary partition. — A.E, Ammanna v K. Seetharama Bhatta, 1965(1) Mys. L.J. 622.
It is a well-settled law that if a party approaches the wrong legal forum and considerable time elapses and the party is thereafter required to approach the correct forum, that the intervening period cannot be treated as a bar as far as limitation is concerned because the law recognizes that the party who has been pursuing a legal remedy is entitled to claim exclusion of that period of time. . . If the type of proceeding instituted turns out to be erroneous that the Court has the power to direct corrective action because it comes within the doctrine of curability. A.C. Anantha Swamy and Another v State of Karnataka and Others, 1998(5) Kar. L.J. 480-A.
Once the land has been recognised as converted land by the Deputy Commissioner exercising power under the Inams Abolition Act, the Deputy Commissioner cannot insist on payment of conversion fine once again. — Krishnamurthy v Right-aids Orient Private Limited, 1973(2) Mys. L.J. Sh N. 263.
THE MYSORE (RELIGIOUS AND CHARITABLE) INAMS ABOLITION ACT, 1955 [MYSORE ACT No. 18 OF 1955]
Village treated as personal inam — Subsequent decision it was devadaya — Validity. Where a village was treated as a personal and miscellaneous inam under the Personal and Miscellaneous Inams Abolition Act and petitioner was registered under Section 9 of the Act, and that decision had become final (on 28-1-1968), a right accrued to the petitioner and the same could not be taken away by a Government Notification under Section 1(4) of the Religious and Charitable Inams Abolition Act notifying that the village shall be and shall always be deemed to have been a devadaya inam. — Anniacher v State of Mysore, (1974)1 Kar. L.J. Jr. 26, Sh. N. 93.
Tenant cultivating land or archak, poojari, etc. — where land in question is not proved to be religious or charitable land, nor to be agricultural land, claim for occupancy is not maintainable. The building site in question is not an agricultural land and the petitioner is conducting commercial activities thereon. Explanation appended to the said sub-section provides an exhaustive definition to 'religious inams' or 'charitable inams' to mean a grant of a village, portion of a village or land entered in the register of inams, quit-rent register, alienation register, or any revenue account maintained by or under the authority of Government as Devadaya inam or Dharmadaya inam, as the case may be. In the present case, the Tribunal has come to a definite conclusion that the site in question has not been centered either in the quit-rent register or any of the other revenue records maintained by or under the authority of the Government as Devadaya inam or Dharmadaya inam. Therefore the site is not a religious .or charitable inam within the meaning of Section 1(3) of the Act. In the said view of the matter the provisions of the Act cannot be said to have any application to the same. Occupancy right can be claimed by a person as a tenant only if the lands are agricultural in nature and the person claiming right is personally cultivating the same. In the present case, admittedly the lands are not agricultural in nature and the petitioners are admittedly carrying on commercial activities over the same. In the said view of the matter there was no occasion on their part to claim occupancy right in respect of the lands in question. — Savithramma and Others v State of Karnataka and Others, 1998(3) Kar. L.J. 154.
Petitioners applications claiming occupancy of Inam lands endowed to temples were pending adjudication and in the meantime the Deputy Commissioner directed the Assistant Commissioner to take possession of the lands from the petitioners. Held, that the Record of rights extracts produced by the petitioners raised a presumption in their favour that ' Ley were tenants of the lands. Therefore they had a right to remain in possession under the proviso to Section 3(l)(g) of the Act, until evicted in accordance with taw. — Boraiah v State of Karnataka, 1975(2) Kar. L.J. Jr. 35, Sh. N. 67.
.
The land tribunal has the jurisdiction to consider the claim for grant of occupancy right under the Land Reforms Act in respect of lands in respect of which occupancy right had been granted to an Inamdar under the Mysore (Religious and Charitable) Inams Abolition Act, 1955. But the granting of occupancy right could be only on the basis that the claimant had become a tenant of such land of the Inamdar on and after the date of vesting of the land in the Government under that Act and/or after grant of occupancy right to the Inamdar under the said 1955 Act, for, under Section 8 of that Act, occupancy right could and would have been granted to an Inamdar only in respect of lands which were not under cultivation of Kadim tenants or permanent tenants who were entitled to occupancy right under Sections 4 and 5 thereof or in respect of which there were no other category of tenants, who were entitled to continue as tenants under the Government as provided in Section 6 of that Act. The Division Bench of the Karnataka High Court had upheld that occupancy right had been granted in favour of the temple (petitioner) under Section 8 of the Religious and Charitable Inams Abolition Act. In that order the claims of the respondents that they were permanent tenants of the lands and their alternative claim that they were deemed tenants as defined under Section 4 of the Mysore Tenancy Act, 1954, and therefore entitled to continue as tenants under the Government, as other tenants under Section 6 of the Act were rejected. Further their possession was held to be unlawful. The respondent had not claimed before the land tribunal that they had become tenants of the petitioner on and after the date of vesting of the lands in the Government under the Religious and Charitable Inams Aboiition Act and/or after the grant of occupancy rights in favour of the temple. On the other hand their plea was the same which had been rejected by this Court. The lands therefore were not tenanted lands and the respondents were not tenants as on 1-3-1974; the appointed day under the Land Reforms Act, and therefore the Tribunal could not have granted the occupancy right for the lands in question in favour of the respondents. Under Section 4 of the Mysore Tenancy Act and Section 4 of the Land Reforms Act (both worded similarly), only a person lawfully cultivating an agricultural land could claim the status of a deemed tenant and not a person who has been in unlawful possession of the land. The claim of the respondents that they were deemed tenants of the land in question was rejected by this Court (Karnataka High Court), holding that they were in unlawful possession of the land. From this, it follows, the view taken by the Tribunal that they were deemed tenants under Section 4 of the Land Reforms Act (similarly worded in Section 4 of the Mysore Tenancy Act) is patently erroneous. — Sri Dharmarayaswamy Temple (by the Committee of Dharmadarshis) v Chinnathayappa and Others, ILR 1990 Kar. 4242 (DB).
It may be stated that the purpose and scope of the two Acts are distinct. The Inams Abolition Act was enacted for the purpose of abolition of Inam Tenures and conversion of such tenures into Ryotwari Tenures and in that process grant of occupancy rights to the Inamdars and the three classes of tenants specified in the Act. The purpose of the Land Reforms Act, however, is quite different. The main purpose was to abolish the relationship of landlord and tenant in respect of tenanted lands and to confer occupancy rights on tenants who are personally cultivating the lands. Therefore, the rejection of the claim of the appellant under the Inams Abolition Act does not lead to the inference that he has no claim for occupancy right under the Land Reforms Act. The appellant claims that he is a deemed tenant as provided under Section 4 of the Land Reforms Act. The requirement of deemed tenant, as provided under Section 4 of the Tenancy Act, must be determined by the land Tribunal. The High Court having come to the conclusion that the procedure adopted by the land Tribunal was not in accordance with the rules of natural justice ought to have remitted the matter to the tribunal for fresh disposal. — Muniyallappa v BM. Krishnamurthy and Others, AIR 1992 SC 212 (FB).
Jurisdiction of Land Tribunal under Land Reforms Act is restricted to granting or rejecting occupancy in respect of agricultural land and it cannot grant occupancy in respect of non-agricultural land. D.M. Ramachandra Rao v State of Karnataka and Another, 1997(5) Kar. L.J. 614.
It appears that the Tahsildar has arrogated himself the power to represent the temples which are not Muzrai Institutions. The Tahsildar is not a representative of the temples but is only a representative of the Government which does not have any away over these temples for the reason that they are not Muzrai Institutions. The necessary parties are atleast the senior members of the village community to whom these temples belong. Valuable rights of occupancy cannot be bartered away in this fashion by the Tribunal. — Yejman Eregowda and others v State of Karnataka and Others, 1991(1) Kar. LJ. 509.
Land gifted in favour of deity Sri Devarayanadurga Laxminarasimhaswamy — Donor ceased to the owner. The Tahsildar was not competent to lease the land to any person beyond the period of five years. It is not the case of respondent 3 that he continued to enjoy the rightful or lawful possession of the land in question with the permission of the Government or the competent authority even after the expiry of the lease, as nothing is produced to show that any such order was passed by the competent authority permitting him to enjoy the land beyond the period of lease granted in the instant case. Therefore, the irresistible conclusion is that possession of respondent 3 cannot be continued beyond the lease period of five years as enjoined by Section 9, though he was enjoying the leasehold rights by virtue of the order made by the Tahsildar. In that view of the matter, it is not impermissible for respondent 3 to have continued in possession of the land in question beyond five years. At the out-set, it is not made clear whether the land in question was available for the Deputy Commissioner to grant occupancy right under the Act in favour of respondent 3. It was the bounden duty of the Deputy Commissioner to apply his mind and see whether the land was available for being granted under the Act. Having regard to the provisions of the Act of 1927, a notice should have been given to the Muzrai officer including Dharmadarshis of the temple. The Deputy Commissioner failed to issue such notice to either the Muzrai Officer or the Endowment Commissioner. Be that as it may, as on the date when the impugned order, Annexure-G, came to be passed by the Deputy Commissioner, he should have seen that there was a prohibition incorporated in Section 9 of the Act of 1927 to grant a land like the one involved here under the Act. He should have also seen that respondent 3, having no right to claim occupancy over the land in question, would not be entitled for the reliefs sought for under the Act, which cannot be pressed into service in a case like this. Therefore, the order made by the Deputy Commissioner as per Annexure-G being one without the authority of law is vitiated. — S. Sumitra v State of Kamataka and Others, ILR 1992 Kar. 3049.
Occupancy — Rival applicants for — Order of Special Deputy Commissioner granting occupancy to one applicant on finding that he was "Archak" personally cultivating land during relevant period — No decision taken on rival 'application received subsequently, though received in time, and passing on pending application to Land Tribunal for disposal under Land Reforms Act — Order of Land Tribunal rejecting application on ground that occupancy in respect of subject land had already been granted by Special Deputy Commissioner and that Tribunal had no jurisdiction to revoke order of Special Deputy Commissioner — Both orders, held, are liable to be quashed — Special Deputy Commissioner ought to have recalled his order of grant and passed fresh order after considering both applications, and when Special Deputy Commissioner had failed to do so, Land Tribunal should have done it. Ramaiah Reddy v Nanjundaradhya and Others, 2000(2) Kar. LJ. 275.
.
Where the inams in question constitute a minor inam (patel inam) in an alienated religious inam village, the claim for occupancy right should be determined as follows. Whether the lands are patel inam should first be determined by the authorities constituted under the Mysore Religious and Charitable Inams Abolition Act, 1955. If it is established that the lands are patel inam, then the provisions of the Karnataka Village Offices Abolition Act would be attracted; and after the rights of the parties are worked out and determined under the Act of 1961 by the authorities constituted under that Act the Land Tribunal will have to take up for consideration the application for conferment of occupancy. — H. Eswarappa v State of Karnataka, 1979(2) Kar. LJ. 182.
THE KARNATAKA VILLAGE OFFICES ABOLITION ACT, 1961 [KARNATAKA ACT NO. 14 OF 1961]
Regrant — Of service inam land resumed by State Government on abolition of village offices — Only authorised holder of village office, satisfying requirements under Section 5 of Act, viz., holding village office immediately prior to appointed date and payment of occupancy price, is entitled to regrant — Whether person in possession of land is "authorised holder of village office" is to be found before regrant can be made to such person — Order of regrant to person in possession without such finding is not sustainable in law. G. V. Subba Rao v Tahsildar, Chickkaballapur Town, Kolar District and Others, 1998(3) Kar. L.J. 413-A (DB).
Watandar is also a holder of village office. The question involved is whether a Watandar is also a 'holder of Village Office' within the meaning of the definition of that expression in Karnataka Village Officers Abolition Act, 1961. The Karnataka High Court has held that he is a holder of village office within the meaning of the definition and we see no reason to depart from that view. — M.B. patil v K.V. Patil (dead) by LRs., 1987 (Supp) SCC 317.
The petitioner is not a person having a right to perform the duties of such office under the existing law as he is not a holder of the office. It is inferable that himself and his forefathers have been performing the duties as substitutes and were enjoying the emoluments attached to the office. Possibility of some dissidents of the original barawardar refused to perform the duties or abandoned to perform the duties, is not ruled out. Therefore, under these circumstances it can only be said that the petitioner and his forefathers might have been working as substitute to carry on day-to-day work. By virtue of Section 4 of the Act, village offices together with incidents thereof were abolished, notwithstanding anything in any usage, custom, settlement, grant, agreement, sanad, or in any decree or order of a Court, or in an existing law relating to village offices, and all the rights thereof extinguished. A person who was the holder of the village office immediately prior to the appointed date is entitled for regrant of the emoluments attached to this office subject to payment of occupancy price determined by the State Government. There is no reference to the officiator in Sections 5, 6 and 7 of the Act. The purport and object of the Act is to confer benefits only to the barawardars and the persons who are the holders of the office. The Legislature has clearly excluded the officiator or a substitute for regrant of land. In view of this legislative intendment, the petitioner is not entitled for regrant of inam land. No special benefits accrued to the substitute or an officiator under the said Act. — Deshaiah alias Thibbaiah v Chinnaswaniy and Others, 1995(5) Kar. LJ. 407
Any alienation of the land endowed upon a village. office after the coming into force of the Act i.e., 1-2-1963 and before the regrant of the resumed land, would not entitle the purchaser seeking benefit either under Section 5 or Section 6 much less the benefit that may be conferred on the grantee would endure to the alienee. — Gangappa v State of Karnataka and Others, 1991(2) Kar. LJ. 501-A.
The land came to be sold in favour of the petitioner on 23-2-1972. As on that day Section 7 of the Act had not been amended, much less Section 5 of the Act. But, by virtue of the amendment in 1978 (Karnataka Act 13 of 1978), sub-section (3) of Section 5 came to be amended to the effect that the grantee was prohibited from alienating the granted land for a period of 15 years from 7-8-1978. But, by a perusal of the Act it is seen that Sections 3, 5 and 7-A shall come into force at once that is to say 7-8-1978 and all the other provisions shall be deemed to have come into force on 27th December, 1975. There was no order made by the Tahsildar regranting the land in question as on 7-8-1978. But when he passed the impugned order on the 30th August, 1978 both the amended provisions of sub-section (3) of Section 5, Section 7 were in force. In that view of the matter, the impugned order having been made under Sections 5 and 6 of the Act, no person other than holder of the village office or authorised holder would be entitled to seek benefit of it. — S.N. Sampathkumar v Tahsildar, Nelamangala Taluk and Others, ILR 1991 Kar. 4030.
Following the Ruling in the case of Shivappa Fakirappa Shetsanadi, held that after-the abolition of the village office and resumption of the land, it becomes a ryotwari land only on regrant and as such, it would be released from the nature of its impartibility and becomes available for partition. — Bhimappa Ramappa Ghasti v Arjan Laxman Ghasti, 1993(2) Kar. L.J. 179 (DB).
It is true that the alleged guttedar Shamanna has executed a registered lease deed, a certified copy of which is available from the records, in favour of Hajee Zailulabdeen Saheb as far back as on 9-4-1918. It is registered in the Office of the Sub- Registrar, Gandhinagar, Bangalore, in No. 3955, Book-I, Volume 344, pages 338 to 343. Undisputedly, this document confers certain right of lease on the lessee. There is no doubt about it. The question is whether the lessor Shamanna had any right to lease the land in favour of the lessee. To answer this, we will have to fall back on the question whether the land in question was endowed upon the village office 'thoti' so as to bring it within the purview of the provisions of the Village Offices Abolition Act, or whether it was governed by the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 or Karnataka Certain Inams Abolition Act, 1977, as the case may be. From the documents which have been issued by the competent authorities, it is abundantly made clear that the land in question has been endowed upon the village office 'thoti' of Kalagondanahalli village and that Muniswamy @ Gogga was the holder of the village office 'thoti'. So naturally the land is governed by the Karnataka Village Offices Abolition Act and not by the Inams Abolition Acts, referred to above. By a careful consideration of the order of the Special Deputy Commissioner, it is seen that he has failed to record a finding that the land was coming within the ambit of the provisions of the trams Abolition Act and therefore he was competent to grant occupancy over it. Perusal of Sections 4 to 9 of the Act of 1954 makes it clear that either holder of a minor mam or a tenant qualified therein, after the land came to vest in the State, shall make an application .for occupancy right over the land in their lawful possession as such on the appointed date. The Deputy Commissioner failed to see that the applicant Abdul Jaleel was neither a tenant nor a holder of a minor inam. Lastly, the Deputy Commissioner failed to see whether he had jurisdiction to confer occupancy over the land of this kind. Considering all these aspects, I am clearly of the opinion that the impugned order, Annexure-D, made by the learned Civil Judge cannot be sustained and the same is liable to be quashed. — Muniswamy @ Gogga (dead) by legal representative v State of Karnataka and Others, 1993(1) Kar. LJ. 498.
Personal law of parties not affected by provisions of Act — Interest in village office enures to the benefit of junior members of coparcenary/joint family and available for partition. — Shivappa Fakirappa Shetsanadi v Kannappa Mallappa Shetsanadi, ILR 1987 Kar. 3155 (DB).
When powers are enumerated, the power vested in the authority is restricted by the terms of the section and they cannot be allowed to exercise jurisdiction outside the same under the guise of ancillary power. The Act makes full and complete provision for dealing with the land as per the situation as exists on the date of the Act. Thereafter, the possession of the land may changes hands and various inter se disputes between the parties may arise which will have to be determined independently on the basis of the rights of parties. That power can be exercised only by ordinary Civil Courts and such vide powers cannot be assumed by Revenue Authorities under the guise of an ancillary power, especially, when it affects private rights of the parties. The Act makes provisions for resumption of land from the holders of village office and thereafter to make a re-grant in accordance with Sections 5 to 7. It provides a complete machinery for dealing with lands coming under the act. The purpose of the Act is achieved by regrant of the land to eligible persons. Thereafter, it becomes the property of the grantee and the ordinary remedy should be resorted to, if there is any invasion of that right. After the land is regranted, the purpose is accomplished and thereafter the authorities under the Act have no jurisdiction to initiate proceedings to put the grantee in possession of the same which has to be obtained through the ordinary Civil Court. The object of the Act is fully achieved by the regrant order in favour of eligible persons. The Stale is divested of its title by the regrant and the provisions of the Act cannot thereafter be invoked to settle the rights of parties for all times to come in the guise of an ancillary power. By the regrant the authorities under the Act becomes functus offido and the settlement of rights between the parties thereafter has to be done in the ordinary manner by the ordinary Civil Courts. The Tahsildar has no jurisdiction to pass an order under Section 7 of the Act as the writ petitioner is not an 'unauthorised holder' as defined under Section 2{m) of the Act. Moreover, the regrant order was passed in 1979 itself and the State is divested of its title. Thereafter, at any rate, the Tahsildar has no jurisdiction to resume the land from the possession of the writ petitioner even if his possession is unlawful. It is for the title holder to seek appropriate remedies before the Civil Court to get possession of the land which he is entitled to. — V. Channanarasimhaiah v Additional Tahsildar, Bangalore North Taluk and Others, 1997(3) Kar. LJ. 101C (DB).
Alienation of regranted 'service inam land' during 1-2-1963 to 7-8-1978 valid — Any holder of a village office or any authorised holder has a vested right to obtain regrant of the service inam land held by him immediately before 1-2-1963 subject to payment of occupancy price in terms of the Act — Alienation between 1-2-1962 and 7-8-1978 by holder or an authorised holder before regrant is not invalid — However alienee will be a person with imperfect title entitled to continue in possession — When land regranted to alienor, title obtained by alienor will enure to the benefit of alienee — Date of regrant whether before or after 7-8-1978 will not be relevant to determine the validity of alienation between 1-2-1963 and 7-8-1978 — Alienee has no right to seek regrant in his own name — No provision in the Act authorising the Slate Government or its authorities to evict an alienee under an alienation made between 1-2-1963 and 7-8-1978 — Section 7 not applicable as such an alienee is not an 'unauthorised holder'.
Questions Formulated:
(i) Whether the alienee from a 'holder of village office' of 'authorised holder' under an alienation which took place after the appointed date on which the Principal Act came into force (1-2-1963) and before the Amendment Act came into force (7-8-1978) would acquire title even if the regrant under Section 5 or 6, as the case may be, is after 7-8-1978.
(ii) Alternatively, whether the alienation of a service inam land by the holder or authorised holder, in favour of an alienee, made between 1-2- 1963 and 7-8-1978 would become null and void, if the regrant under Section 5 or 6 was not made in favour of the alienor before 7-8-1978?
(iii) Whether the above questions are decided in Lakshmana Gowda's case?
Held: (a) Alienation of regranted 'service inam land' during the period 1-2-1963 to 7-8-1978 is valid and permission for sale is only a formality as the Deputy Commissioner was bound to give permission on mere payment of an amount equal to 15 times of land assessment.
(b) Under Sections 5(1) and 6 of the Act, any holder of a village office or any authorised holder, has a vested right to obtain regrant of the service inam land, which was held by him immediately before 1-2-1963 (that is as at the end of 31-1-1963) subject to payment of occupancy price in terms of the Act and the Rules; the fact that the holder or authorised holder had alienated the land and divested himself of possession of the land after 1-2-1963 and before 7-8-1978 will not disentitle him, to regrant under Section 5(1) or 6 of the Act, as what is relevant for regrant is holding of such land as at the end of 31-1-1963.
(c) Alienation of service inam land between 1-2-1963 and 7-8-1978, by a holder or an authorised holder before regrant, is not invalid, as he had a vested right to get regrant and as there was no bar regarding alienation during that period; but the alienee will be a person with imperfect title entitled to continue in possession and when the land is regranted to the alienor, the title obtained by the alienor will enure to the benefit of the alienee;
(d) The date of regrant, whether before or after 7-8-1978, will not be relevant to determine the validity of the alienation between 1-2-1963 and 7-8-1978, as what is prohibited after 7-8-1978 prospectively fora period of 15 years, is alienation and not regrant.
(e) The alienee between 1-2-1963 and 7-8-1978 has no right to seek regrant in his own name and his right is only to claim the benefit of doctrine of feeding the grant by estoppel as and when regrant is made to his alienor under Section 5(1) or 6; and for this purpose he may support or pursue any application for regrant in favour of his alienor;
(f) There is no provision in the Act authorising the State Government or its authorities to evict an alienee under alienation made between 1-2-1963 and 7-8-1978. Section 7 is not applicable; as such an alienee is not an 'unauthorised holder'. If the land alienated between 1-2-1963 and 7-8-1978, is subsequently regranted to the alienor, the benefit of such regrant, namely, title will enure to the benefit of the alienee. If the land is not regranted to the alienor, but to some one else on the ground that the alienor is not a 'holder' or 'authorised holder', then the alienee will be in the position of a transferee from a person without any title; and the grantee to whom the regrant is made, will be entitled to obtain possession from the alienee and the limitation for such grantee to dispossess the alienee will commence from the date of regrant. — Syed Bhasheer Ahamed and Others v State of Karnataka and Others, 1994(1) Kar. L.J. 385 (FB).
Regrant — Of service inam land resumed by State Government on abolition of village offices — Requirements to be satisfied by applicant seeking regrant — He must prove that he was holder of village office immediately prior to appointed date and that occupancy price in respect of land has been paid by him to Government — Applicant need not necessarily be in possession of land and cultivating it and paying land revenue in respect thereof — If he is not in possession, it is open to him to pursue remedy for recovery of possession, and this question arises only after regrant — Similarly liability to pay land revenue arises only after regrant — Order of Tahsildar rejecting regrant solely on ground that applicant was not in possession of land and that he was not paying land revenue is erroneous in law.
Held.—A plain reading of Section 5 together with Rules 4 and 5 makes the legal position clear that an applicant for regrant of the service Inam land will have to fulfill only two legal requirements to entitle him to the regrant of the land/lands. They are: that he was the holder of the village office immediately prior to the appointed day, and, nextly, that the requisite occupancy price calculated in the manner stated in sub-section (1) of Section 5 had been duly credited by him. The later portion of sub-section (1) of Section 5 stipulates that the liability to make payment of the land revenue for such lands arises only after the inam land is regranted to the concerned village office holder, which part of Section 5(1) creates liability on the regrantee to pay the land revenue to the Government with respect to the regranted inam land from the appointed date and in accordance with the provisions of land Revenue Act and the Rules and the orders made thereunder. From the above requirements of Section 5 of the Act, it legally follows that for entitlement to regrant of the service Inam land, the village office holder need not necessarily be in actual possession and cultivation of that land and that the payment of land revenue with respect thereto from the appointed day is also not a condition precedent for the same. It is left open for him to pursue the remedy to recover possession of the land in due course of law after the same is regranted to him. The finding of the Tahsildar in his impugned order that appellant (petitioner) was dis-entitled to regrant of the land simply because he had failed to pay the land revenue with respect thereto is clearly an erroneous finding in law. The learned District Judge has also committed an error in upholding the order of the Tahsildar. — G. V. Subba Rao v Tahsildar, Chickkaballapur Town, Kolar District and Others, 1998(3) Kar. L.J. 413-A (DB).
There were only two courses legally open to the Tahsildar in the circumstances of the case. One course was to reject the application for regrant if reasons demanded and order eviction and the other course was to order regrant of the land to refrain from eviction. Strangely enough in this case, on the one hand eviction notice is issued in 1979 and on the other regrant is made in 1981. It is only to point out the vagaries of revenue officials who do not exercise due diligence in the performance of their statutory duties, I have to make this observation. If the application for regrant filed in 1968 had been disposed of within a reasonable time, perhaps there would have been no occasion for issue of eviction notices to the petitioners. . . .The order of regrant passed subsequently has rendered the order of eviction nugatory and the same are wholly unsustainable since the applications for regrant were under consideration when the said orders came to be passed. ... .In the circumstances, the authorities concerned are directed to regularise the transfer of lands by the original holders to the petitioners on payment to the Government an amount equal to fifteen times the full assessment of the lands in question and to carry out the necessary transfer of Khatha in order to perfect the title of the petitioner within a time of sixty days. — Sanna Beere Gowda v The Tahsildar, Arsikere Taluk and Others, 1989(2) Kar. L.J. 245.
In the case of 'walikarki' properties, when a regrant is made in the name of one of the members of the family, who was performing the walikarki services, the grant ensures to the benefit of all the holders of that office in the family and the members of the family have a right to claim partition in the said regranted land. Appanna and Others v Lakkappa Devappa, 1983(1) Kar. L.J. 482
Section 5 — Regrant of land to holder of village office on payment of occupancy price to Government — Tahsildar to entertain only one application from holder of erstwhile village office and to make only one grant — Person claiming to be member of joint family of holder cannot make application — Property would be available for partition only after grant — Partition is a matter to be decided by competent Court — Tahsildar has no power to partition property while passing order regranting land. Patel Veerabasappa (dead) by LRs. v Smt. Basamma (dead) by LR. and Another, 1996(2) Kar. LJ. 102.
A grant of land resumed under Section 4 to the holder of the Village Office has to be regarded as compensation to the holder of the village Office. Until the lands are regranted to the holder of the Village Office, other members of the family derive no title, assuming that the watan was family property which was impartible until its abolition. It is too premature for them to institute a suit for partition before regrant is obtained by the holder of the Village Office. — Chadrabai v Laxmibai, 1975(1) Kar. L.J. Jr. 4 Sh. N. 19.
Sections 5 and 7 — As amended by Act 13 of 1978 — Thoti Inamthi land — Purchaser from Regrantee — Regrant under Section 5 and subsequent to alienation — Alienation after coming into force of Principal Act but before Amendment in 1978 came into force — Purchaser from Regrantee entitled to benefit flowing from regrant — Case-law discussed. — Smt, Sarojamma v State of Karnataka and Others, 1989(2) Kar. LJ. 88.
Sections 5 and 7 — As amended by Karnataka Act No. 13 of 1978 — Transfer of Property Act, 1882, Section 43 — Service inam land — Alienation of — Eviction of alienee and applicability of doctrine of feeding grant by estoppel to his case — Alienation by erstwhile holder of village office after vesting of land in State Government consequent upon abolition of village offices — Alienation confers no title on alienee — No provision in Act for regularisation of such alienation, and alienee cannot seek it, nor can he seek regrant in his favour — Right to regrant vests only with erstwhile holder of village office or his heir and regrant is to be made only in his favour — Since land, on such regrant, is not inalienable, such regrant, when made, enures to benefit of alienee, who can then seek application of doctrine to his case if eviction proceedings are initiated against him.Held: In the present case the deeds of transfer were made in between 12-5-1969 and 17-6-1974 and regrant was made in 1987. There is no provision in the Act which says that such a regularisation should be granted. It may be that when proceedings for eviction are taken against the petitioner, it would be open to the petitioner to claim the benefit after showing and establishing the material conditions applicable in the light of Section 43. Until proceedings are not taken for eviction under law, the petitioner will always be entitled to remain in possession, in spite of regrant order made in favour of the village office holders. When proceedings for eviction to evict the petitioner are taken, he may be entitled to take this plea and if he establishes that he is entitled to the benefit of doctrine of estoppel feeding the grant, he may not be evicted. — T. Ramareddy v The Tahsildar, Bangarpet Taluk, Kolar District and Others, 2000(2) Kar. L.J. 230.
Sections 5 and 7 — Sale of lands attached to inferior village of a Village Officer prior to 7-8-1978 — Order of regrant made subsequently on 31-5-1983 — Held, purchaser entitled for benefits of regrant. — Kempanna v State of Karnataka and Others, 1987(2) Kar. LJ. 263.
Sections 5 and 7 — Service inam land — Regrant of — Holder of village office has vested right to obtain regrant of such land held by him immediately before 1-2-1963, the date on which Act came into force — Alienation of land made after 1-2-1963 is not invalid, but alienee gets only imperfect title which, however, becomes perfect when re-grant is made under Section 5 of Act in favour of alienor — Such alienee with imperfect title is not unauthorised holder — Power vested in authority by Section 7 of Act to evict unauthorised holder and restore land to grantee cannot be invoked against such alienee. Held.—Section 7 of the Act deals with eviction of unauthorised holders and the regrant of such lands, after resuming the same, from unauthorised holders. Section 7 provides that, if any land resumed under Section 4(2) is in possession of unauthorised holder, he shall be summararily evicted therefrom and the lands shall be taken possession of by the Deputy Commissioner, in accordance with law, after giving an opportunity to the person in possession to make a representation. Section 7(3) provides that the land which is resumed from an unauthorised holder, shall be granted to holder of such office if it was granted or continued in respect of or annexed to an inferior village office. ..... The object of enactment is to abolish the village offices and to resume the lands in possession of such holders, to whom lands were granted as inam for the service. After resuming the land, provision is also made under Sections 5 to 7 to regrant the land practically in favour of the original holders or in some cases to the authorised holders. Section 5 of the Act provides for regrant of the land to holders of the office. Section 7 would apply only if a person is an 'unauthorised holder' as defined under the Act, on the date of coming into force of the Act. The definition of 'unauthorised holder' itself makes it clear that, he is a person in possession of land without any right or under an alienation which is null and void under the existing law relating to such village ...... Section 7(3) of the Act provides for regrant of the land after getting possession of the land from the unauthorised holder. Section 7 is also one of the modes of regrant along with Sections 5 and 6. This provision contained in Section 7 of the Act is one of the modes of regrant after resuming the land from the unauthorised holder and that it cannot be pressed into service for resuming the land from the possession of a person who comes into possession of the land after 1-2-1963, whether under a valid alienation or an invalid alienation. On a plain reading of the provisions contained in the Act, the provision of Section 7 can be invoked only as against 'unauthorised holders' who are in possession of the land as on 1-2-1963 and that it cannot be invoked in respect of persons eventhough they are in unauthorised occupation who corne into possession of the land only after 1-2-1963. If the land is to be resumed from any such persons, it is not to be done under the power vested under Section 7 but under any other provisions of law, by which, the authorities may be entitled to resume such lands. V. Channanarasimhaiah v Additional Tahsildar, Bangalore North Taluk and Others, 1997(3) Kar. L.J. 101-A (DB).
Sections 5 and 7 — Service inam land — Regrant of — Once regrant of land is
made under Section 5 of Act in favour of erstwhile holder, State is divested of its title and State cannot subsequently invoke provisions of Section 7 of Act to resolve disputes that may arise between grantees inter se or between grantees and alienees — Where land regranted was partitioned among grantees and part of land alienated before partition came as share of one party, that party cannot seek eviction of alienee under Section 7(3) of Act.
V. Channanarasimhaiah v Additional Tahsildar, Bangalore North Taluk and Others, 1997(3) Kar. L.J. 101-B (DB).
.
This is a Revision Petition filed under Section 115 of the Code of Civil Procedure against an order passed by the lower Court in an appeal preferred before it. In such a proceeding, even if it is referred to a Division Bench, it is not open to a Division Bench to go into the correctness of the order passed under Articles 226 and 227 of the Constitution even if it is passed by a learned Single Judge. The order passed under Article 226 or 227 of the Constitution can be corrected either in an appeal preferred against that order or in a Review petition preferred against the very order or by a superior Court and not in a subsequent proceeding coming under a different jurisdiction. Therefore, even if it is one of the reasons given in the order of reference, it does not extend the scope of the case that is referred to a Division Bench. The case that is referred to a Division Bench is a Revision Petition preferred against an order passed by the lower Court holding that the appeal preferred under Section 3(2) of the Act is maintainable. Therefore, the contention that the correctness of the order passed in Writ Petition No. 3543 of 1986 is also required to be gone into, cannot be accepted. It is also not possible to accept this contention and hold that a mere fact that the case is being considered by a Division Bench and all the parties are before the Court will not enable the Court to consider all other controversies between the parties which do not really arise in the instant Civil Revision Petition. The inherent jurisdiction of the Court cannot be exercised by clutching at the jurisdiction. Therefore, it is not possible to hold that in this proceeding, this Court can go into the question as to whether the regularisation of the sale made in respect of the entire land is valid in law. The proper remedy open to the petitioner is to challenge the order of the Tahsildar under Articles 226 and 227 of the Constitution as the order is the one passed under Section 5(3) of the Act as it stood before the coming into force of Karnataka Act 13 of 1978. — B. Rudraiah v S.N. Prahalada Rao and Others, ILR 1991 Kar. 513 (DB).
In the instant case, it is nobody's case that the petitioner obtained necessary sanction from the Competent Authority before the said lease was granted. In the absence of such a sanction, any lease that is granted by the watandar could not confer any right upon the person said to be enjoying the leasehold rights, in respect of the service Inam land. According to Section 8, a person in lawful possession and enjoyment of a land on valid lease recognised by law, can invoke the provisions of Section 8 of the Act, for grant of occupancy rights. It is clear that even under the Bombay Act, alienation of service Inam land is prohibited, without the sanction of the Competent Authority. Respondents 2 to 4 were found to be squatting on the Government land as unauthorised holders. Since they have failed to establish any case under the Bombay Act as the lawful lessees, they are liable to be evicted under Section 7 of the Act. In other words, the action taken by the Assistant Commissioner under Section 7 of the Act, pursuant to the order of regrant made in favour of the petitioner in 1969, is perfectly justified. — Gundu v Assistant Commissioner, Belgaum and Others, ILR 1992 Kar. 324.
Sections 7 and 8 — Regrant — Third party in unauthorised occupation — Remedy.
Venkataramiah, J.—Section 7 of the Act does not apply to a case where the land has already been regranted in favour of the holder of the office. If a person in whose favour the land is regranted finds that a third party is in unauthorised occupation of the land in question, it is open to him to approach the Civil Court to pass a decree for possession against the trespasser. He cannot request the Deputy Commissioner under Section 7 of the Act to evict the trespasser and put him in possession of the land. Section 8 of the Act also does not confer on the person in whose favour the land is granted the right to approach the Deputy Commissioner to evict the third party. — Bapu Mallu Khot v Deputy Commissioner, Belgaum, ILR 1976 Kar. 92.
CASE LAW ON CDP/MASTER PLANS
GOVT HAS TO ACQUIRE TO IMPLEMENT DEVELOPMENT PLANS OVER PVT LANDS
Whether Government can prepare a development plan and deprive owner of land from using that land?; whether without acquiring land can Government deprive a person of his use of land? - Held, there is no prohibition for preparing development plan comprising of private land but that plan cannot be implemented unless Government acquires private land for development purpose. FOR FULL CASE CLICK HERE
CASE LAW ON LAND ACQUISITIONS
LAND ACQUIRED BY GOVT CAN BE RESOLD BY IT
once a piece of land has been duly acquired under the Land Acquisition Act,
the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for
which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything lessthan the market value. FOR DETAILS CLICK HERE
BMIC CONTROVERSY
Bangalore-Mysore Infrastructure Corridor Project - Framework Agreement challenged and dismissed. FOR FULL CASE CLICK HERE
ACQUISITION FOR NATIONAL HIGHWAYS
National Highways Act, 1956 - Compulsory acquisition of certain lands - least that is required in such cases is that acquisition notification should let the person whose land is sought to be acquired know what he is going to lose - Notification shows that there is no mention of any Plan - Description of land under acquisition in the impugned Notification fails to meet legal requirement of a brief description of land which renders the Notification invalid - Taking of possession of lands is in total violation of statutory provisions. FOR FULL CASE CLICK HERE
ACQUISITION AND WITHDRAWL
Once possession is taken Government cannot withdraw from acquisition. FOR FULL CASE CLICK HERE
COMPENSATION IN RESPECT OF TREES OVER ACQUIRED LAND SHOULD BE GIVEN
Compensation for acquired land trees standing on acquired land. Appellant is entitled to have his claim in respect of trees on land acquired FOR FULL CASE CLICK HERE
RECONVEYING OF ACQUIRED LAND
when land is acquired under Land Acquisition Act which is vested in State Government free from all encumbrances, question of reconveying land as claimed by respondent could not be accepted. FOR FULL CASE CLICK HERE
ACQUISITION VIOLATIVE OF ARTICLE 14 QUASHED
Land Acquisition - once it is held that the action was discriminatory and hit by Article 14 of the Constitution of India, then the High Court was justified in quashing the whole proceedings. FOR FULL CASE CLICK HERE
CASE LAW ON ZONING, LAND USE AND CONVERSIONS
Zoning Use:- It does not lead to conclusion that all sites/ lands in zone declared as residential should be used only for construction of dwelling houses and that no bit of land or site therein can be used for providing other amenities. Planning authorities can permit after following due procedure. Alliance Business Academy Bangalore Case before Karnataka High Court decided on 07-01-2005, reported in 2005(2) KarLJ 17.
Karnataka preservation of Trees Act 1976:- Cofee growing land converted into non-agricultural land for purpose of forming residential layout. Application for permission to fell entire lot of trees standing on. Application rejected. Such permission will be given for bonafide use of the owner or occupation or for extension of cultivation or change in cultivation under section 8 of the act, merely because revenue authorities granted permission does not ipsofacto follow permission to fell trees. S.B.Ganesh’s case decided by KHC, reported in 2006(1) KarLJ 548. Any order made by authorities in violation of the principles of natural justice is null and void. K.R.Lakshman case: 1995(5) KarLJ 137A.
Change in use of land falling within the area of ODP & CDP should be effected or undertaken only with the written permission of the planning authority under section 14 of The KT & CP Act 1961. Special DC v/s Narayanappa ILR 1988 Kar 1398.
PUBLIC LANDS AND NATURAL RESOURCES
A. The use of public lands or natural resources, which have a direct link to the environment of a particular area,
B. The present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, 1500 A.D.
C. The tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.
D. Bombay Suburban Electricity Supply Co. Ltd. & Ors. (1991) 2 SCC 539 held that the concerned Government should "consider the importance of public projects for the betterment of the conditions of living people on one hand and the necessity for preservation of social and ecological balance and avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a balance between the two conflicting objectives FOR FULL CASE CLICK HERE
DLF's ARKAVATHI GREEN VALLEY CASE
A. "Village" means a local area which is recognised in the land records as a village for purposes of revenue administration and includes a town or city and all the land comprised within the limits of a village, town or city;"
We are unable to uphold that the grant of approval to the proposed scheme amounts to declaring the said area as a new village or the alternation of the area of an existing village. The question whether the colony which comes into existence under the scheme as proposed is to be declared to be a new village or is to be included in an existing village will have to be considered after the development takes place as proposed in the scheme and at that stage the requirements of Section 6 of the Land Revenue Act may have to be complied with.
B. As regards diversion of the land from agricultural use to non-agricultural use for construction of villas, it is not disputed that under Section 95 of the Land Revenue Act the power to grant the necessary permission is conferred on the Deputy Commissioner. The High Court has held that in the present case the said power was not exercised by the Special Deputy commissioner but was exercised by the State Government and that the State Government was not competent to exercise the said power ……………………… it was not a case of diversion of use of an isolated piece of agricultural land by an individual. This was a case where diversion of sue was sought in respect of a large number of plots of land. The matter required examination from various aspects and a composite view had to be taken after ascertaining the views of the concerned departments. The State Government alone could do so and, therefore, the matter was required to be considered by the State Government. FOR FULL CASE CLICK HERE
CASE LAW ON CONSIDERATION
An exchange made for compromise of criminal cases between the parties is violative of section 23 of Indian contract Act. Shrihari Jena case: AIR 2002 Ori 195.
Under section 122 of T.P. Act there is no consideration involved in a gift. The motive, the essential element of gift like love and affection does not constitute consideration. Sonia Bhatia case: AIR 1981 SC 1274.
Father in law can make gift in favour of his daughter in law out of love. But, that does not imply that he can make such a gift in respect of ancestral property. Once the gift of self acquired property is made, it becomes streedhan of daughter in law. Ammathayee @ perumalakkal case: AIR 1967 SC 569.
CASE LAW ON RIGHT TO REPURCHASE AFTER SALE
Where the property is sold with condition to repurchase, the seller can assign his right to repurchase. Andalammal case: AIR 1962 Mad 378.
Where under an agreement an option to vendor is reserved for repurchasing the property sold by him, the option is in the nature of a concession or privilege and may be exercised on strict fulfillment of the conditions it can be exercisable. If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the terms specifically for failure to abide by the conditions does not amounts to enforcement of a penalty and the court has no power to afford relief against the forfeiture arising as a result of breach of such condition. K. Simrathmull case: AIR 1963 SC 1182 (1188).
Agreement of repurchase of property - parties from transferring or assigning their rights in favour of third party
Specific performance - Agreement of repurchase of property - Whether the terms of the agreement of repurchase contain any implied prohibition on the original contracting parties from transferring or assigning their rights in favour of third party - Held, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of s. 15(b), Specific Relief Act, 1963, an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or transferees', the legal right of assignment available to the benefit of original contracting party under s. 15(b) cannot be denied to it - Further held, the plaintiff as 'assignee' or 'transferee' from the original contracting party is entitled to seek specific performance of the contract from contesting respondent. FOR FULL CASE CLICK HERE
CASE LAW ON INHERITANCE
Under Hindu Succession act remarriage is not one of the disqualifications mentioned, she is entitled to inherit. A property vested in her by inheritance before remarriage is not divested on remarriage. Kasturidevi case: AIR 1976 SC 2595.
Mothers claim in deceased sons property is recognized by Mysore High court stating even if she is remarried she does not cease to be his mother. Thayamma case: AIR 1960 Mys 176.
The Tahsildar has got power only to issue survivalship certificate and not the legal heirship certificate. Basavanni Shankar Ammanagi case: 2002 (2) KarLJ 317A.
CASE LAW ON PARTITION
Once the partition is given effect to and the property is divided and shared, the plea that person so took the share is a lunatic will have no effect. A plea of Lunacy is sustainable only if the District court has adjudged the person in question as lunatic. Karumanda Gounder case: AIR 1996 SC 1002.
A partition which is shown to be prejudicial to the interest of a minor co-parcener will be set aside so far as he is concerned. Ratnam chettiar case: AIR 1976 SC 1. The rule of reopening of partition does not apply to a decree if the minor is properly represented before the court unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem. Bishundeo’s case: AIR 1951 SC 280.
Under Hindu Law even a child in the womb of mother will acquire a Right to claim partition. Reported in 2005(3) KarLJ 386.
RIGHT OF WAY IN PARTITION DEEDS
Parties clearly provided for a right of access to the backyard of the defendant's house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors and it is a matter of contractual arrangement between them - If a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. FOR FULL CASE CLICK HERE
CASE LAW ON MUSLIM LAWS
MUSLIM LAW: Doctrine of pre-emption was developed as a custom under muslim law from early days. This is to restrain and prevent a stranger coming in between or among co sharers or neighbors which could cause inconvenience. An offer has to be made to near relatives and neighbors first in order to avoid inconvenience. Such principle disscussed and recognised in following decisions. AIR 1996 SC 2146; AIR 2002 SC 2500; AIR 1958 SC 838; AIR 1991 SC 1055; AIR 2001 SC 2611. Under Shia law only co sharers are entitled to right of pre-emption.
Muslim Law or any other personal Law should not over ride the statute. Thus where T.P.Act applies, no right of pre-emption would arise unless the title has passed according to the Act. The demand of exercise of right of pre-emption shold e made after registration of sale deed. AIR 1960 SC 1368; AIR 1961 SC 1747; AIR 1968 SC 450. Right of pre-emption is lost by Estoppel and acquiescence. AIR 1991 SC 1055.
In Mahfooz Ali Khan case: AIR 1980 All 5. Muslim law of pre-emption was applied in certain parts of the country to the owners of the property irrespective of their religious persuasions, which shows that it was not applied as the personal law of muslims but as customary law of that local area.
In case there exists a will or any other kind of disposition of property made by the deceased MUSLIM in his lifetime, it may be limited to one third of his estate, and the remaining two thirds would devolve on the heirs. AIR 2001 SC 3067.
When all the heirs continue to hold the inherited property as tenents in common and one of them wants to recover his share later on, the limitation would not be counted from the death of the deceased but from the date of ouster or denial of title. S.S.Gulam Ghouse case: AIR 1971 SC 2184.
There is no concept of Joint family property, Joint Family Fund or for that matter Joint Family itself under Muslim Law. Therefore, no presumptions could be made in these regards as compared to Hindu Law. AIR 1991 SC 720. But the arrangements of family living to-gether and having common property are either treated as partnership relation or as trust under Trust act.
Adoption is not recognised by muslim law. AIR 1986 J&K 14.
Under Muslim law different shares are allotted to different heirs, woman is also considered as an heir, father, mother, grand parents, children, wife, husband, sisters, brothers are recognised as heirs differently among Shias and Sunnis with definite shares.
Unless it is proved to the contrary, no acquisition of property by one or many members of the family could be presumed to be the property of all as the representation is unknown to muslim law. Mohd. Ibrahim case: AIR 1976 Mad 84.
CASE LAW ON PROPERTIES OF JOINT FAMILY, ANCESTRAL, COPARCENARY, SELF ACQUIRED
The mere fact that the properties were not separately entered by the coparcener in the book of account or that he did not maintain a separate account of earnings from these properties would not deprive the properties of their character of self acquired properties. AIR 1976 SC 1715.
Where ancestral property which is sold in execution of decree against the karta is subsequently acquired by a coparcener with the aid of his own funds, the property would be treated as the self acquired property of the co-parcener. Revappa case AIR 1960 Mys 97.
The burden of proving that any particular property is joint family property is on person who on first instance claims it as so. AIR 1960 SC 335. Only after the possession of adequate nucleus is shown, the onus shifts on to the person who claims the property as self acquired, affirmatively to make out that the property was acquired without any aid from the joint family estate. AIR 1969 SC 1076. One of the tests in determination of the adequacy of the nucleus is the income which yields. AIR 1984 SC 1171.
Where the manager of HUF claims that what is acquired is his separate property he should prove that he acquired it with his separate funds. AIR 1961 SC 1268, AIR 1969 SC 1076. Where there is an acquisition by the manager in his own name and there is no independent source of income, the presumption arises that the new acquisition was joint family property. AIR 1954 SC 379, AIR 1959 SC 906.
If the admissions are made by a member, then the onus shifts on him to prove that what he admitted is not true. AIR 1961 SC 1268.
The principle of Mitakshara Law that sons have independent co-parcenary rights in the ancestral estate and that father is subject to their control in he alienation of family property has been almost destroyed by the principle which has been established by the decisions that sons cannot setup their rights against their fathers alienation for an antecedent debt or against his creditors remedies for their debts, if not tainted with immorality, though not incurred for the family necessity or benefit. AIR 1952 SC 170. The concurrence of all the adult members is conclusive presumption of law. AIR 1951 Mys 38.FB.
The settled law through decisions of Privy council and various High courts is that “ A sale or mortgage of family property by the managing member is valid on the ground of justifying family necessity where it is: (a) For the payment of decree debts and other debts binding on the family. (b) To pay off the claims of Govt on account of Land Revenue, cesses, taxes and other dues. (c) For the payment of rents due to the landlord or the payment of decrees for arrears of rent obtained by land lord against family. (d) For the maintenance of members of the family. (e) For the purpose of defraying the expenses of the first marriage of the co-parcener and of daughters born in the family. (f) For the expenses of the necessary family ceremonies including funeral and annual shradha. (g) For the expenses of necessary litigation in connection with the recovery or protection of the joint estate or the establishment of adoption of his minor son. (h) For the expenses of defending the head of the family or any member against a serious criminal charge. (i) For the purpose of carrying on an ancestral trade or business. (j) To raise money to avert a sale or destruction of the whole or any part of the family property. (k) For the expenses of necessary repairs to the family residential house or family properties and for the protection of fields and lands belonging to the family from floods etc.,
Managers discretion regarding legal necessity or benefit of the estate can be subjected to judicial review. AIR 1964 SC 1385.
It is not open for a coparcener to sue for injunction restraining the manager from alienating on the ground that it is not for legal necessity or benefit. B.C.Ray, Justice however observed that injunction may be granted in case of waste or ouster. Sunil kumar case: AIR 1988 SC 576.
Gift by a manager even of a small extent of Joint family property to a relative out of love and affection is void as it is not a gift for pious purposes ( i.e religious and charitable purposes ) within the meaning of that expression in Hindu Law. Guramma v/s Mallappa AIR 1964 SC 510. see also AIR 1967 SC 569. A gift to a concubine or stranger is void. AIR 1980 SC 253.
In Krishnamurthy v/s Abdul khadar case AIR 1956 Mys 14 Where the property is acquired by the managing member and all the members of the family are in possession of the family property, it could very well be presumed that the new acquisition is family property.
Hindu Law:- Husband, wife and children living together constitute joint family. Property acquired by members of such joint family is presumed to be joint family property or coparcenary property not withstanding fact that it was acquired without the aid of ancestral nucleus, unless contrary is proved. Parties by their conduct and treatment of property in their hands, can impress self acquired property with character of joint family property with character of joint family property. Krishnamurthy case before KHC reported in 2005(3) KarLJ 420.
CASE LAW ON DOCUMENTS AND FAULTS IN IT
Non mentioning of survey number will not render the mother document void so also the area of the subject matter. Mithukhan case: AIR 1986 MP 39.
If the language employed has ambiguities to enter into it, then intention of the parties has to be gathered by overall survey of the contents of the document in question. P.L.Bapuswami case: AIR 1966 SC 902.
If a document is relatively 30 years old and was obtained from proper custody, then its contents have to be presumed genuine. Smt Anika B. case: AIR 2005 MP 64.
Just by name true nature of document cannot be disguised nor be treated otherwise. AIR 1958 SC 532.
For clear identification of any immoveable property, the deed should be very clear about the schedule or boundaries of the property. If the boundaries are disputed, their description resolves the dispute. M. Dhondusa Religious and Charitable Trust case: ILR 2002 Kar 4832.
If one interpretation could give effect to all parts of the deed and other renders some clauses nugatory, then, the interpretation that gives effect to all clauses should be preferred. Radha Sundar Dutta case: AIR 1959 SC 24. D.D.A. case: AIR 1973 SC 2609.
In case of contradictions in statements of document about area and boundaries the boundaries shall prevail. M/S Roy &co case: AIR 1979 Cal 50.
In case of contradictions between the map and mother deed, the mother deed should prevail. Narain Prasad Singh case: AIR 1983 Pat 244.
In case of ambiguity with regard to description of property, description as can be ascertained from the boundaries will settle the issue. Babji Dehuri case: AIR 1996 Ori 183.
In case of contradictions between description and boundaries regarding location of the property, the boundaries shall prevail. Tranglaobi pisiculture co-op soc ltd case: AIR 1969 Mani 84.
Plan appended to a document forms part of that document. If a plan is so appended, extent cannot be determined solely based on measurements ignoring the map. Sumathy Amma case: AIR 1987 Ker 84.
Ownership of surface of the land confers ownership of every thing beneath the land unless a reservation was made by transferor while transferring the ownership. Raja Anand Brahma Shah case: AIR 1967 SC 1081. Sukhdeo Singh case: AIR 1951 SC 288.
Unless other wise provided by the recitals, trees standing on the land will also pass along with the land. DFO sarahan forest division H.P.case: AIR 1968 SC 612.
In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. ONGC ltd case: AIR 2003 SC 2629.
Where there is a documentary evidence, oral evidence is not entitled to any weight. Murarka Properties (p) ltd AIR 1978 SC 360.
While interpreting the document the document in question should be read as a whole. Therefore , if one clause of the document is invalid or otherwise, that one clause itself will not render the whole document invalid. AIR 1956 SC 46.
It is common knowledge that laymen do not know nor care about the niceties of drafting. They cannot be expected to possess the expertise of a professional. Therefore, techinical rules that are generally applied to the provisions of law and exceptions should not be applied while interpreting such documents or deeds. AIR 1951 SC 293.
The cardinal rule of construction is that a document must be read as a whole, each clause being read in relation to the other parts of the document, and an attempt should be made to arrive at an interpretation which will harmonize and give effect to other clauses thereof. It is not legitimate to pick out an expression torn from its context and try to interpret the document as a whole in the light of that expression. Such a forced construction on the document in question cannot defeat the very object which its executants had in view. Shri Digambar Jain and others case: AIR 1970 MP 23(26) [FB].
Where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, the later provisions have to be held to be void. Ramkishorelal case: AIR 1963 SC 890.
It is well settled that general words of release do not mean release of rights other than those put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed. Rajagopal Pillai and another case AIR 1975 SC 895.(897).
In construing documents usefulness of the precedents is usually of a limited character, after all the courts have to consider the material and relevant terms of the document with which they are concerned and it is on a fair and reasonable construction of the terms that the nature and character of the transaction evidenced by it has to be determined. Trivenibai case: AIR 1959 SC 620(622).
The obligations in the deed which is in the nature of trust is an obligation which can be specifically enforced. Bai Dosabai Mathurdas Govinddas and others case: AIR 1980 SC 1334.
CASE LAW ON SALE AGREEMENTS AND SALE
An agreement of sale does not creates any interest in the property, but it creates an obligation that is inherent to ownership. Soni Lalji case AIR 1967 SC 978. Bai Dosa bai case: AIR 1980 SC 1334.
Sale of property transfers ownership. Inderjit Singh case: AIR 1996 SC 247.
As a consequence of an agreement to sell, land was transferred under an unregistered sale deed. The transferor becomes owner even if he is not put into possession. State of A.P case: AIR 1982 SC 913.
Unless there is a written agreement for sale is executed, the vendee cannot defend his possession merely on the basis of oral agreement and certain correspondence with the vendor. M.C.Bakhru case: AIR 2002 SC 812.
A contract for sale or an agreement for sale does not create any title in favour of the transferee. But the provision section 53A of T.P.Act creates a bar on the transferor to seek possession from the transferee. Patel Natwarlal Rupji case: AIR 1996 SC 1088.
The person who acquired the property with notice that another person has entered into a contract affecting that property does not acquire title to that property but imposes on him the obligation to hold the property for the benefit of the other person to the extent necessary to give effect to the contract provided that the contract is one of which specific performance can be enforced. Khaja Bi and Others case: AIR 1964 Mys 269 (275). (FB).{ see section 40 of T.P.Act and Section 91 of Indian Trusts Act }
Way to transfer to non agriculturist:- Bar under Kar Land Reforms Act sec 80, Kar Land Revenue act sec 95(2) and Registration Act sec 22A operates only if under deed of transfer, possession of agriculture land is delivered to purchaser, who is not agriculturist. Where deed is only agreement to sell agricultural land after getting necessary permission to divert for non- agricultural use, and agreement does not involve delivery of possession, agreement cannot be construed as one opposed to public policy or contrary to law. Township Enterprises case before Karnataka High Court, Decided on 16-11-2004. Reported in 2005 (1) KarLJ 385.
Consequence of possession given in Sale agreements: It has to be executed with stamp paper equal to that of Conveyance or else it attracts duty penalty of 10 times that of actual stamp duty. In this case property agreed to be bought at Rs 18 lakhs with delivery of possession on stamp paper of Rs 200=00. Rs 19 Lakhs duty penalty imposed to enforce the same. Kapoor Constructions Bangalore case before KHC decide on 03-03-2005. Reported in 2005 (5) KarLJ 602.
NOTE: After the amendment of Registration act in 2001 such agreements coupled with delivery of possession needs to be compulsorily registered.
Limitation Act, art. 59
Whether provision of art. 59 would be attracted in a suit filed for setting aside a Deed of Sale?- Held, if a deed was executed by the plaintiff when he was a minor and it was void he could either file the suit within 12 years of the deed or within 3 years of attaining majority - Plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority - Suit was rightly held to be barred by limitation. FOR FULL CASE CLICK HERE
CASE LAW ON REVENUE RECORDS
Entries in Revenue Records neither confer any title nor extinguish the title already existing. Balwant Singh’s case: AIR 1997 SC 2719.
Jama bandi is a land revenue demand. Jama bandi entries alone will not create title in the person whose name is found in such records. Jatturam case: AIR 1994 SC 1653.
If a name is entered in revenue records, a presumption arises in favour of the person and unless and until the presumption is rebutted, the entries have to be considered as true and correct. M/S Ashok Leyland Ltd case: 2004 (5) Supreme 115, Syedabad Tea Co. Ltd case: AIR 1983 SC 72, State of Maharastra case: AIR 1985 SC 716.
However, the entries in revenue records alone will not convey title or will not have the effect of extinguishing the already existing title. B. Singh & Anr case: AIR 1997 SC 2719.
If there are two sets of revenue records regarding the same property and their entries conflicting then the latest of the records will prevail. M.Pandey & Ors case: AIR 1981 Cal 74.
Mutation entries can neither create title nor extinguish title and such entries cannot be treated as evidence of sale. Major P.S. Atwad case: AIR 1995 SC 2125.
Entries in revenue records which are unchanged fairly for a long time will not be rebutted by some stray entries. Sri Bhimeshwara Swamivaru Temple case: AIR 1973 SC 1299.
Entry in Record of Rights:- Once name of grantee is entered in record of rights on the basis of order of grant, name cannot be deleted from records, unless grant has been revoked in properly constituted proceedings by authority competent to revoke grant. M.N.Venkateshaiah’s case before KHC (DB) , decided on 05-10-05 reported in 2005(6) KarLJ 452 (DB).
CASE LAW ON VERIFICATION OF TITLE
If the purchaser relies upon the assertion of the vendor or on his own knowledge and abstain from making inquiry into the real nature of the possession, he cannot escape from the consequences of deemed notice under explanation II to section 3 of T.P. act. Bhagwan B. Kedari case: AIR 2005 Kant 108.
Section 41 of T.P.Act says where with the consent, express or implied of persons interested in immoveable property, as an ostensible owner of such property, transfers the same for consideration, the transfer shall not be viodable on the ground that the transferor was not authorised to make it. Provided that the transferee after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. Transferee is also protected if the ostensible owner has effected transfer with the implied or express consent of the real owners. Kushmir Singh case: AIR 2004 SC 2438.
If the revenue sale to the government is declared as void, such sale does not confer any title on the government. As a result if it subsequently sells such property for consideration to a third party, the sale has no effect whatsoever and the vehicle cannot hide behind section 41 of T.P.Act. Ramrao Jankiram case: AIR 1963 SC 827.
A mere agreement for sale does not confer any title. As a result, even if the agreement is valid, the holder will not acquire any title whatsoever. Sunil Kumar Jain case: AIR 1995 SC 1891.
When the property is in custody of a receiver, it means the property is in the custody of the court. Unless consent or leave of the court is obtained, no party will acquire any title just by coming in over such property which is in possession of receiver. Sundharam Bansal case: AIR 1984 SC 1471.
Title and all other interests in the property vests with the purchaser unless a different intention express or implied is shown. Once it is disputed, the burden of proof lies on the party so disputes. Bihnudeo Narain Rai’s case: AIR 1998 SC 3006.
If a person who has no title carries out any improvements will not be acquiring any better position nor by virtue of such improvements he would acquire title to the property in his possession. Also, the expenditure he has incurred for making such improvements cannot be claimed back. R.S.Madanappa case: AIR 1965 SC 1812.
Title to a good will will not pass to the purchaser unless the whole business relating to that good will is transferred. Alapati Venkataramaiah’s case: AIR 1966 SC 115.
WHEN PERSON GOT LIMITED RIGHTS THROUGH WILL
Absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of any one else and the further interdict in the note that the wife during her life time would not be entitled to mortgage or sell the properties FOR FULL CASE CLICK HERE
CASE LAW ON PUBLIC PROPERTY, KHARAB
Under Section 67 of The Karnataka Land Revenue Act 1964 all Public Roads, Streets, Lanes, paths, bridges, ditches, dikes and fences on or beside the same, the beds of rivers, streams, nallas, lakes, tanks, canals, water courses and all standing and flowing waters which are not property of individuals are the property of the state government.
In Saudagar asul vs State of Kar, reported in ILR 1973 Kar 56. The title to kharab land is clarified by Karnataka High Court. “ Kharab land is uncultivable land classified for the purposes of revenue exemption. It cannot be regarded as adjunct to adjoining cultivable land, which gets transferred along with cultivable land. Kharab land is also capable of ownership which must be acquired in the same way as cultivable land.
Under Section 68 of Karnataka Land Revenue act 1964. Deputy Commissioner is entitled to declare any Public street, Path, Lane, as stands extinguished with suitable notification and prescribed procedure.
CASE LAW ON SPECIFIC PERFORMANCE
CASE LAW ON SPECIFIC PERFORMANCE
PARTITION IN A SUIT FOR SPECIFIC PERFORMANCE
Suit for specific performance of undivided property - Minor's share - Conditions mentioned to obtain the necessary permission from Civil Court relating to minor's share - Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition - High Court held that it is an essential term for execution of contract and since such permission had not been granted, the entire contract failed - Appeal against - S. 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance - Impugned judgment set aside - Appeal allowed.... P.C. Varghese v. Devaki Amma Balambika Devi and Others (SUPREME COURT OF INDIA) D.D: 7/10/2005
JURISDICTION
Suit for declaration, specific performance of agreement, for possession of property and for permanent injunction - Order that Delhi Court has no jurisdiction to try the suit and plaint should be returned to the plaintiff for presentation to proper court - Appeal against - In which court a suit for specific performance of agreement relating to immovable property would lie? - Held, s. 16 recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate - A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property - Delhi Court has no jurisdiction since property is not situate within jurisdiction of that court - Trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court - Appeal dismissed.... Harshad Chiman Lal Modi v. Dlf Universal and Another (SUPREME COURT OF INDIA) D.D: 26/9/2005
WRONGFULLY WITHHELD PROPERTY OF THE COMPANY
Companies Act, 1956, s. 630 - Wrongfully withheld property of the company - Held, possession of company's flat by Respondents, after service of notice to vacate premises by company, is wrongful withholding of property of company - Decision of High Court that s. 630 of Act being penal in nature, proceeding there under cannot be construed to be a proceeding taken in due process of law, cannot be sustained - Appeal partly allowed.... Shubh Shanti Services Limited v. Manjula S. Agarwalla and Others (SUPREME COURT OF INDIA) D.D: 11/5/2005
TRUE NATURE OF DEED
What is true nature of deed though called a Settlement Deed, what was intention of executant behind executing deed -Settlement as per terms of document was not a transfer of property in favour of adopted son; it was merely an arrangement or at best an entrustment of scheduled property to his adopted son and latter's natural father for purpose of proper management without obstruction by anyone else including himself so that welfare of himself, his wife and his children specially unmarried daughters was assured - Deed was capable of being cancelled or revoked under power of revocation - Appeal dismissed... Subbegowda (Dead) By Lr v. Thimmegowda (Dead) By Lrs (SUPREME COURT OF INDIA) D.D: 16/4/2004
AGREEMENT OF REPURCHASE OF PROPERTY
Whether the terms of the agreement of repurchase contain any implied prohibition on the original contracting parties from transferring or assigning their rights in favour of third party - Held, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of s. 15(b), Specific Relief Act, 1963, an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or transferees', the legal right of assignment available to the benefit of original contracting party under s. 15(b) cannot be denied to it - Further held, the plaintiff as 'assignee' or 'transferee' from the original contracting party is entitled to seek specific performance of the contract from contesting respondent - Case remanded to the trial court for deciding additional issues arising on facts and law.... Shyam Singh v. Daryao Singh (Dead) by LRs and Others (SUPREME COURT OF INDIA) D.D: 19/11/2003
Suit for specific performance of contract
No time for performance was fixed - It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter. FOR FULL CASE CLICK HEREWhether a writ petition is maintainable in contractual matter?
A specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. FOR FULL CASE CLICK HERE
Suit for specific performance of undivided property - Minor's share
In order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance. FOR FULL CASE CLICK HERESpecific Performance
Notwithstanding that a specific date was mentioned in the agreement, one has not only to look at the letter but also at the substance of the contract - whether time is of essence is a question of fact and the real test is intention of the parties - facts and circumstances of each case is one of the deciding factors - held on facts - time was not the essence in this case - respondents have proved that they were ready and willing to perform their part of the agreement. FOR FULL CASE CLICK HERE
SPECIFIC PERFORMANCE AND EVICTION OF SUBSEQUENT PURCHASER
Seller under agreement after receiving full amount of consideration refusing to execute sale deed and clandestinely executing another agreement to sell same house property to third person. Plaintiff is entitled to relief of specific performance and take appropriate proceedings for eviction of subsequent purchaser from the premesis. FOR FULL CASE CLICK HERE
DATE ON WHICH PERFORMANCE REFUSED
No time for performance was fixed - It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter. Janardhanam Prasad v. Ramdas (SUPREME COURT OF INDIA) D.D: 2/2/2007
SPECIFIC PERFORMANCE OF CONTRACT OF SALE
Suit is for specific performance of contract of sale of a house property - High Court held that the respondent was competent to file the suit and that the Courts below were not justified in holding that Exhibit P-I was not proved though execution of the same was admitted by the defendant - Appeal against - Held, First Appellate Court had indicated the reasons as to how it found Exhibit P-1 was not a genuine document - It analysed the factual position and held that execution of Ex.P-I was not established and it was not a genuine document - High Court's abrupt reasoning that the defendant appears to have accepted execution of the document is indefensible - Plaintiff- respondent is not competent to file the suit - Appeal partly allowed.... Dyaneshwar Ramachandra Rao Patange v. Bhagirathibai (SUPREME COURT OF INDIA) D.D: 18/8/2006
WHEN NO TIME FIXED IN AGREEMENT COURT TO FIND OUT WHEN IT IS REFUSED
Suit for specific performance of agreement of sale and for a perpetual injunction - Dismissed as barred by limitation - Decision confirmed by first appellate court and High Court - Appeal against - No time for performance was fixed in the agreement for sale - Held, in a case where no time for performance was fixed, court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof - Trial court should have insisted on parties leading evidence, on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial - Suit as regards prayer for perpetual injunction to protect possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not have been held to be not maintainable on any ground - Suit is remanded to trial court for a proper trial of all issues - Appeal allowed.... Gunwantbhai Mulchand Shah and Others v. Anton Elis Farel and Others (SUPREME COURT OF INDIA) D.D: 6/3/2006
Suit for specific performance - Suit dismissed as time barred by lower court - Second Appeal by respondent allowed decreeing the suit for specific performance - Appeal against - Held, even though time for performance was not fixed in the agreement for sale, on receipt of the notice, the respondent had notice that the performance was being refused, if he failed to fulfill his obligation under the contract within 15 days of receipt of the notice - Suit should have been filed within a period of three years from the date of expiry of fifteen days from the date of receipt of the said notice - Suit time barred.... R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy (SUPREME COURT OF INDIA) D.D: 2/2/2006
PERSONAL RIGHT TO PURCHASE BACK
Respondent's suit for a declaration that transaction although ostensibly expressed in the shape of a deed of sale, was in fact a transaction of usufructuary mortgage and for a further declaration that the said transaction stands redeemed under s. 12 - Relief granted in second appeal - Held, a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of re-transfer may be evidenced by more than one document - A sale with a condition of retransfer, is neither mortgage nor a partial transfer - By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser, and such a personal right would be lost, unless the same is exercised within the stipulated time - Transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property - Appeal allowed..... Bishwanath Prasad Singh v. Rajendra Prasad and Another (SUPREME COURT OF INDIA) D.D: 24/2/2006
PARTITION IN A SUIT FOR SPECIFIC PERFORMANCE
Suit for specific performance of undivided property - Minor's share - Conditions mentioned to obtain the necessary permission from Civil Court relating to minor's share - Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition - High Court held that it is an essential term for execution of contract and since such permission had not been granted, the entire contract failed - Appeal against - S. 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance - Impugned judgment set aside - Appeal allowed.... P.C. Varghese v. Devaki Amma Balambika Devi and Others (SUPREME COURT OF INDIA) D.D: 7/10/2005
JURISDICTION
Suit for declaration, specific performance of agreement, for possession of property and for permanent injunction - Order that Delhi Court has no jurisdiction to try the suit and plaint should be returned to the plaintiff for presentation to proper court - Appeal against - In which court a suit for specific performance of agreement relating to immovable property would lie? - Held, s. 16 recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate - A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property - Delhi Court has no jurisdiction since property is not situate within jurisdiction of that court - Trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court - Appeal dismissed.... Harshad Chiman Lal Modi v. Dlf Universal and Another (SUPREME COURT OF INDIA) D.D: 26/9/2005
WRONGFULLY WITHHELD PROPERTY OF THE COMPANY
Companies Act, 1956, s. 630 - Wrongfully withheld property of the company - Held, possession of company's flat by Respondents, after service of notice to vacate premises by company, is wrongful withholding of property of company - Decision of High Court that s. 630 of Act being penal in nature, proceeding there under cannot be construed to be a proceeding taken in due process of law, cannot be sustained - Appeal partly allowed.... Shubh Shanti Services Limited v. Manjula S. Agarwalla and Others (SUPREME COURT OF INDIA) D.D: 11/5/2005
TRUE NATURE OF DEED
What is true nature of deed though called a Settlement Deed, what was intention of executant behind executing deed -Settlement as per terms of document was not a transfer of property in favour of adopted son; it was merely an arrangement or at best an entrustment of scheduled property to his adopted son and latter's natural father for purpose of proper management without obstruction by anyone else including himself so that welfare of himself, his wife and his children specially unmarried daughters was assured - Deed was capable of being cancelled or revoked under power of revocation - Appeal dismissed... Subbegowda (Dead) By Lr v. Thimmegowda (Dead) By Lrs (SUPREME COURT OF INDIA) D.D: 16/4/2004
AGREEMENT OF REPURCHASE OF PROPERTY
Whether the terms of the agreement of repurchase contain any implied prohibition on the original contracting parties from transferring or assigning their rights in favour of third party - Held, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of s. 15(b), Specific Relief Act, 1963, an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or transferees', the legal right of assignment available to the benefit of original contracting party under s. 15(b) cannot be denied to it - Further held, the plaintiff as 'assignee' or 'transferee' from the original contracting party is entitled to seek specific performance of the contract from contesting respondent - Case remanded to the trial court for deciding additional issues arising on facts and law.... Shyam Singh v. Daryao Singh (Dead) by LRs and Others (SUPREME COURT OF INDIA) D.D: 19/11/2003
FOR FULL CASE REFERENCE VISIT http://www.commonlii.org/in/cases/INSC/
CASE LAW ON INTERPRETATION OF STATUTES
HARMONISE IT WITH THE OBJECT
In Arnit Das v State of Bihar, AIR 2000 SC 2264 : It was held that the preamble is a key to unlock the legislative intent, if the words employed in an enactment may spell a doubt as to their meaning, it would be useful to so interpret the enactment as to harmonise it with the object which the legislature had in its view.
NON OBSTANTE CLAUSE
Non obstante clause will have overriding effect only on rules which were in existence at the time when such rule had been brought into force. — State of West Bengal and Others v Madan Mohan Ghosh and Others, AIR 2002 SC 2273.
INTENTION OF LEGISLATURE
In Bhatia International v Bulk Trading S.A. and Another, AIR 2002 SC 1432, it was held that the conventional way of interpreting a statute is to seek the intention of its makers and if statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the Legislature. In Kastwchand and Another v Harbilash and Others, (2000)7 SCC 611, the aspect of determination of legislative intent had been discussed.
PRECEDENTS
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. — Padmasundara Rao (dead) and Others v State of Tamil Nadu and Others, AIR 2002 SC 1334.
TITLE
In State of West Bengal and Others v Marian Mohan Ghosh and Others, AIR 2002 SC 2273, it was held that title of enactment will not determine its nature.
PURPOSIVE CONSTRUCTION
In Chinnamma George and Others v N.K. Raju and Another, AIR 2000 SC 1565 : (2000)4 SCC 130, United Bank of India, Calcutta v Abhijit Tea Company Private Limited and Others, (2000)7 SCC 357, the purposive construction had been explained.
DEFINITIONS IN OTHER STATUTES
lagatram Ahuja v Commissioner of Gift Tax, Hyderabad, (2000)8 SCC 249, it was held that words and expressions defined in one statute as judicially interpreted do not afford a guide to construction of such words and expressions in another statute unless both of them are pari materia legislations or it is specifically so provided in one statute to give the same meaning to the words as defined in other statute-Plain meaning to be given
GRAMMATICAL MEANING
In Gurudevdatta VKSSS Maryadit and Others v State of Maharashtra and Others, AIR 2001 SC 1980, it was held that the cardinal principle of interpretation of statute is that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary.
CASE LAW ON CIVIL PROCEDURE CODE
CIVIL PROCEDURE CODE
compiled by
Sridhara babu.N
Jurisdiction;- SEC ;-9,10,20,21,24,etc.
● Civil court have jurisdiction to try suit unless barred by statute. ILR 1993 [1] KAR 1244
● Civil suit regarding acquisition proceedings is not maintainable & by implication cognizance sec 9 barrs it Hence no injunction can be granted.ILR 1997 [3] SC 2372
● Jurisdiction of court. AIR 1959 MAD 227.
● Objection to territorial jurisdiction-Consequential failure of justice. 1965 [1] MYLJ 669, 1970 [2] MYLJ 317,ILR 1995 [4] KAR 2965,
● H-court or D-court may transfer suit from a court which has no jurisdiction to try it.1971 [1] MYLJ 10, 1972 [1] MYLJ 200.
● Bar of civil court jurisdiction ;- 1975[1]MYLJ 182, 1974 [2] MYLJ 499, ILR 1978[2] MYS 1364
● Plea of inherent jurisdiction - executing court. 1986 ILR MYS 2631.
● Suit for demarcation of boundary of property is maintainable. AIR 1987 SC2137
● Conferring the jurisdiction on court by mutual consent not permissible. AIR 1992 SC 1514.
● Erroneous exercise of jurisdiction is different from lack of inherent jurisdiction. The former results in erroneous decree the later in a decree in nullity.AIR1993BOM 304.
● While transferring of suits justice according to law is done. AIR 1990 SC 113.
● No case can be transferred to another court unless first court is biased or some reasonable ground exists.1989 SCJ 180.
● A suit on a promissory note lies at the place where it is drawn ,signed, & dated AIR1952 PEP4
● MC -case-jurisdiction;- If the wife never lived at the Husband House the suit for RCR must be brought in the court of the place where the wife resides. Suit for Dower lies in a court within whose jurisdiction the marriage & Divorce took place. AIR 1991 SC1104. AIR 1993 KER 87, 1993 MARRIAGE L J 210.
● Suit includes appeal under sec 10 -AIR 1954 PUN 113.
● Lok Adalat jurisdiction:-Only when both the parties are amenable to compromise or settlement ILR 2001 [3] KAR 4338., ILR 2001[4] KAR 4704.
● Jurisdiction of civil court express Bar under section 68 of KLR ACT ILR 1996 [1] KAR 715.
● A suit for direction to any authority to act in accordance with law is not maintainable. ILR1998KAR2612.
● Inherent lack of JURISdn- lack of competence -lack of jurisdn-under High court's act-ILR2001(2) KAR2030.(FB)
Exclusion of jurisdiction, under municipal act ,does not bar civil court from examining if statutory provisions complied or not. ILR 1996 (3) KAR 2516.
● When alternative remedy is available under the provisions of wt & meas act – suit barred- ILR 2001(3)KAR3816.
● CIVIL CASE against KEB for disconnecting electricity without following procedure-ILR 1996 (4) KAR 2916.
● It would not be proper to grant P.I. AGAINST statutory authorities from performing its functions & Duties. ILR 1993 KAR 3398.
● Suit for Declaration of caste, wrongly written in educational records , when he actually belongs to other caste . ILR 1996 (4) KAR 3693.
● Recovery of debts of over 10 lakhs & over is barred by act civil court has no jurisdiction. ILR 1996 (4) KAR 3244.
The above act is struck as ultra vires- ILR 2001(2) KAR 1809.
● Maintainability of suit before small cause court challenged in CRP –ILR 1997 (2) KAR 1535.
● Civil Rights & Family Court:- House & open space given by her husband long back ago was interfered by son & son-in-law of her husband. Suit for injunction filed by her, -such suits fall squarely under cl (d) of the explanation to section 7 of the family courts act & they can be tried & disposed off by family courts – transferred. ILR2001(3)KAR4004.DB.
● Declaration- Regrant- when question of regrant is pending , civil courts cannot grant decree declaring title to watan lands-ILR 2002(1)KAR 724.
● JURISDICTION: When there is agreement- & property in other place:- ILR 2002 (1) KAR 717.
● Decree of Divorcee in foreign court- ILR 2002 (2) KAR 2835.DB.
● Jurisdiction & appeal :- ILR 1997 (2) KAR 1291.
●
RESJUDICATA;- SECTION;- 11;-
● Injunction suit not res-judicata for a later suit. ILR 1988[3] KAR 2102 DB.
● Subsequent suit canvassing other grounds. ILR 1978 [2] MYS 1555
● Suit dismissed for default under O9 R 2&3[failure to take steps & when neither party appears]-Separate suit lies. MYLJ dt 23-3-1972 SNRD it no 108.
● Constructive Resjudicata …… ILR 1997 KAR [3]1865. AIR 1970 SC 1525.ILR 1995 [4] KAR 3376. AIR 1995 RAJ 94,97,98.
● It is no answer to a plea of resjudicata that a argument which was not advanced in the previous suit .AIR 1977 SC 1680.
● A judgement obtained by fraud or collusion does not operate as RJ. AIR 1982 NOC 233 GAU. AIR 1993 KER 273.
● Principles of RJ does not apply to Income tax proceedings. AIR 1992 SC 377.
● Decision of SC that water disputes tribunal can give interim relief forms part of reference to SC opinion , decision operates as RJ & cannot be reopened .Cauvery water dispute case;- AIR 1992SC 522.
● If a decision of a court or a Tribunal is without jurisdiction such a deciscion or finding cannot operates as a resjudicata in subsequent proceedings. AIR 1998 SC 972.
● A Revenue court decision on a question of Title will not bar a suit in the ordinary civil courts , unless otherwise provided by law . A finding of a criminal court also does not bind the civil court. AIR 1978 KAR 213, AIR 1962 SC 147.
● A Previous deciscion does not operate as RJ on the same question when there has been a change of law subsequent to the deciscion. AIR 1981 NOC 211 [DELHI] .
● The deciscion not based on merits would not be RJ in subsequent suits;- AIR 1966SC 1332
● When the suit is withdrawn ,without reserving Right to file fresh suit, R J applies to fresh suit. ILR 1995 [2] KAR 2419 [DB].
● Judgement in rem falls outside the scope sec;11 of cpc. Judgement of court's exercising ,Probate,Matrimonial,Admirality, or Insolvency jurisdiction is a judgement in rem
● No question of resjudicata where fraud or collusion present ILR1996[1]KAR165[SC]
● Issue of Law overlooking statutory provision not conclusive & binding even between parties ,being per- incuriam & not Resjudicata ILR1995(4)KAR 2804.
● Abandonment of part of the claim in previous suit - plf in second suit claiming substantially same relief on the genises of cause of action arose earlier - held second suit barred -ILR 1996(2) KAR 1905.
● In earlier suit for INJ –observed that particular tank is private- such observation cannot amount to resjudicata in subsequent suit. ILR 2001 (3) KAR 3562.
● Declaration suit Decreed, then suit for Damages was filed by showing the cause of action as the date of finality of suit- no Resjudicata. ILR 1998 (1) KAR 1050.
● Orders passed on IA & subsequent or earlier orders operate as resjudicata in subsequent stage of the same proceedings ILR 2002 (2) KAR 2675.
● An observation or even a finding that the defendant has not proved his title in a suit schedule property does not operate as resjudicata. ILR 1998 (3) KAR 3005.
●
SECTION 34:-
● Even though plaint not specifying the grant of interest in a suit for recovery of money plaintiff entitled to statutory Interest of 6% p.a – normal costs unless special costs are awarded.- ILR 1997 (1) KAR 553.
● It is not obligatory to award contract rate of interest in all cases, discretion is vested with court to award lesser rate of interest taking into account the circumstances of the case :- ILR 1997 (2) KAR 1042.
●
SECTION 36:-
● Interim order not obeyed – respondent can move court for contempt or file execution – ILR 1998 (4) KAR 4236.
●
SECTION 52:-
● Executability of decree against legal heirs of deceased permissible against property left by deceased under sec 52, however gratuity being terminable benefit could not be attached even in thje hands of legal heirs. Section 52 does not contravene section 60. ILR 1997 (1) KAR 645.
●
SECTION 51:-
● Arrest warrant only by complying sec 51 – ILR 1998 (4) KAR 4167.
●
SECTION 54;-
● The duty of DC is to effect partition & deliver possession 1985[1] ILR KAR 462.
● Partition effected by collecter civil court have no jurisdiction to meddle 1965[2] MYLJ 768., 1981[2]MYLJ 465.,AIR 1964MYS 169.,
● Prevention of Fragmentation Act ILR 1993 KAR 3271.,
● AC order can be executed by Tahsildar -no re delegation of power.ILR 1992 KAR 2152.,
● ILR 1990 KAR 1265.,
●
SECTION 60:-
● PENSION –exempted from attachment. – ILR1997(2)KAR738.
● Tractor & trailer are not Agricultural or husbandry implements to exempt – ILR 1998 (1)KAR 386.
● Bank employee not government servant . ILR1995 [3] KAR 2214.
● Lathe used in engineering workshop is not a tools of artisan –HC disagrees with AIR 1972 RAJ 62.- ILR1998(4)KAR 4264.
●
SECTION;80., NOTICE-
● Even in a claim against public officer govt shall have to be joined as a party after service of notice ILR 1993[2] KAR 401 DB., ILR 1998 (1)KAR S.N.21.
● Notice to government is mandatory even in case for change of date of Birth.,AIR 1947 PC 198., AIR 1960 SC 1309.,AIR 1947 CAL 26&27.,AIR 1938 MAD 583&584.,
● For permenant injunction suit sec 80 need not be complied with.,AIR 1960 PAT 530.,
● 1982[1]KLC8., ILR 1998 KAR 2378., 1971 MYLJ[25-3-71] SNRD 18.,
● Suit against DC as a representative of Govt ,not necessary to make Kar sec ex Brd as party: ILR 1996(1) KAR 1175.
● Karnataka conduct of government litigation rules 1985 – Rule 5(2), Such summons to chief secretary shall have to be received by the Solicitor in the department of law & parliamentary affairs ILR 2001 (4) KAR 4406. DB.
● Served – mere dispatch is not sufficient- ILR 2002 (2) KAR2923.
●
SECTION 91 :-NUISANCE:-
● ILR 1996 (4) KAR 3356.
●
SECTION 92;-
● Sale of property of religious & charitable endownments by private negotiation should not be permitted by court unless justified by special reasons.AIR1990 SC 444.,
● ILR 1992 [4] KAR 3023., AIR 1991 SC 121.,
● Notice to dft prior to grant of permission not necessary AIR 1991 SC 221.,
● When it is trust property - Suit for injunction without invoking sec:92- not maintainable-ILR 1993 [2] KAR 1580.
● Suit in representative capacity no necessity to invoke order 1 rule 8. ILR 1996(1)KAR 549.
●
SECTION 96:-
● Correction of date of birth case, where no prejudice is caused to state, mechanical filing of appeal deprecated:ILR1995(4)KAR3576.
● Overlooking of oral evidence by first appellate court , JDGT liable to set aside for fresh hearing.ILR 1996 (3) KAR 2156.
● O8 R6A & SEC 55 Of Contract Act:- ILR 1997 (2) KAR 1042.
●
SECTION; 100;- SECOND APPEAL;-
● Substantial question of law -1st appellate court rejecting material evidence on filmsy grounds -High Court can interfere. ILR 1997[3] KAR 2373 [SC]. ILR 1995 [4] KAR 3275.ILR 1996 (3)KAR 2693.ILR1997(4)KAR2632.SC.
● Conclusion about limitation is a finding of fact & not opens for interference in SA. AIR 1998 MP 73.
● The findings of fact arrived by the court below are binding in second appeal. AIR 1998 SC 970. ILR1998 (2) KAR 1550. ILD 2003 (5) MP 316 FB. AIR1963 SC 302. AIR 1959 SC 57.
● Interpretation of contract Involves a substantial question of law-can be examined in second appeal-AIR 1993 DEL187.
● Perverse finding of fact or factual finding based on no evidence second appeal is maintainable-AIR 1993 CAL 144.,AIR1994 ORI 26., ILR 1999[1] KAR 1264., ILR2001[1]KAR 1385[SC].,
● In the absence of substantial question of law no SA;- ILR1996[4]KAR 3590., AIR1990 SC 2212.,
● When there is proper appreciation of evidence of facts no interference in second appeal. ILR 2001 [3] KAR 4295.
● When Law laid down by Higher courts is not considered by lower two courts-HC interferes ILR2001(2)KAR3322.
● INDUCTION of tenant by mortgage in possession is a question of fact ILR 1997 (1) KAR 468.
● Defence against female heir’s Right to partition of dwelling house as pleas not taken in courts below & also in view of plaintiff claiming Right before coming into force of 1956 act,this plea cannot be raised in second appeal.:-ILR 1997 (1) KAR 40.
● Validity of sale deed not substantial question of law:- ILR 1997(1)KAR668.-> Vendor has no title.
● If the evidence of party containing admissions is ignored, HC can iterfere- ILR 1997 (3)KAR 1993.
● Appreciation of evidence by HC IN SECOND APPEAL is un warranted to reverse the finding of fact recorded by the lower 1st appellate court. ILR 1997 (3) KAR 2183. SC.
● Fact about validity & genuineness of re conveyance deed cannot be interfered in second appeal. ILR 1997 (3) KAR 2181.
● Title by Adverse possession, finding of fact –if it is neither perverse nor illegal binding on HC. ILR1997(2)KAR1110.
●
SECTION 144:-
● Restitution principles-ILR 1996(1) KAR 872.
● Discretion of court- IL1993 KAR2197 Not Followed – ILR 2002 (2) KAR 1779.
●
SECTION - 148 & 151;-
● Application for extension of time to vacate premises court cannot grant unless both the parties agree;- ILR 1980[2] MYS 1491.
● Suits cannot be clubbed under section151 CPC .AIR1957 PAT 124. AIR 1960 AP 75.
● Partition suit -Interim maintenance-when claimed from out of the joint family income -1975 (2) KLJ 182.
● When there is no specific provision sec 151 can be invoked .1981(2) KLC150.
● SEC151, O9 R6 , O18 R4&7,:-A party to a suit can maintain an application even at the stage of judgment, for the purposes of either filing the material pleading or to adduce material evidence for just & proper decision of the case.ILR 2000 KAR 820, ILR 1993 KAR 161.
● SECTION:151 Not applicable to proceedings before Rent controller. ILR 1995 [4] KAR 3410
● Sec 151;- JDR cannot maintain an application under sec 151 for setting aside court auction sale ILR2001(1)KAR1552.
● When correct provision of law is not mentioned in IA ,cannot be dismissed. ILR 2001(1) KAR 1527.
● SEC148&149;-Non filing of court fee ,papers & documents-ILR1996(1)KAR 425.
● Court has not passed orders on LR application –even at the stage of arguments court has inherent powers to correct its mistake- ILR 1997 (2) KAR 979.
●
CAVEAT- SECTION- 148A
● Caveat not applicable to land reforms appellate court. ILR 1986 MYS 2890.
● Caveat can be filed without naming the respondent. ILR 1999 [3] KAR 2986.
●
SECTION 152;Amendment of Decree[AOD];
● Lower court decree merges with Appellate court AIR 1980 KER 76.
● No such AOD can be allowed when rights of third party get involved & are likely to be adversely affected 1981 ALLLJ NOC 122.
● Error can be corrected by high court under S 151&152CPC even though appeal from Decree may have been admitted in the supreme court before the date of correction. AIR 1962 SC 633. ILR 200[4] KAR 3459.
● 1967[2] MYLJ 317, AIR 1974 SC 1880,
● Persons not parties to the amendment of decree are not bound by thereby – amendment takes effect prospectively. ILR 1997 (2) KAR 1561.
●
GENERAL ;-
● Parties are entitled to copy of documents on which suit is relied upon though not marked ILR 1992 KAR 2700.
● It was Advocates essential obligation to prepare pleadings according to law & also of the court office to scrutinize them for avoiding serious difficulties.ILR 1997[1]KAR 553.
● Plf has to succeed on his own strength of the case & cannot relay on the weakness of the case of defendant AIR 1954 SC 526, AIR 1979 CAL 50.
● Land Revenue patta is not a Title Deed. 1966 [1] KLJ 772.
● Suit to evict tresspassers one of the co owners can file . 1963 MYLJ page31.
● Document in court lost- Reconstruction & admission in evidence-stamp act sec;-35 1963[2]MYLJ 141.
● Court can consider subsequent events if same has material bearing on relief. AIR 1992 SC 700.
● Recalling of order & Re hearing ; Aspect of finality to judgements & orders on merits to be borne in mind. 1995[2] ILR , KAR 970. ILR 2001[1] KAR 1465,[DB].
● Even though recitals of saledeed indicate that it is sale deed. Court should endevour to find out from the facts & circumstances of the case as to wether it is a sale deed. ILR 2001 [3] KAR 4295.
● Quasi Judicial authorities cannot usurp the rights of civil courts .AIR 1968 SC 620. AIR 1987 KANT 79.
● Quasi Judicial authorities cannot DECIDE civil rights; ILR 1998 (3) KAR 2232.
● Possessory rights:-allotment order &possession certificate- no title documents, Admissions in evidence of defendant that plf has been allotted that land-dfts has not setup title to suit schedule property -possessory rights recognized ILR 2001 (2)KAR2027.SC.
● Unregistered sale deed for rs 25/- in 1955, suit for decal-inj:-ILR2001(2)KAR 1917.
● WRIT- dismissed- non prosecution-for not producing correct address of RES, ILR 2001(2)KAR 2131.
● Claims tribunal a civil court- ILR2000 (4)KAR S.N.192.
● Declaratory suit not filed with in limitation period - creates valid title to the opposite party , amendment constituting altogether a new case cannot be done - ILR 2001 (2) KAR 3060.
● Allegation of fraud and misrepresentation in civil litigation: level of proof extremely high rated on par with criminal trial-
ILR 1995 (4) KAR 3389.
● Civil Court not to grant declaration that civil servant must have been promoted-ILR 1986 (1) KAR 37.
● Civil Courts cannot interfere in results of domestic enquiry ILR 1996 (2) KAR 1905.
● When there is a Duty cast on the party by Law, to follow certain procedure & where there is a breach, merely because corrective action is taken at subsequent time, initial breach cannot be totally ignored ILR 2001(3) KAR 3448 DB.
● CIVIL COURTS awarding DAMAGES to plaintiff on the ground that he has spent some amount for litigation not proper
ILR 2001 (3) KAR 3816.
● Filing of fraudulent cases to avoid court orders, the abuse of process of law by suchsuch methods deprecated ILR 2001 (3) KAR 3746 SC.
● Process of criminal court cannot be misused to settle purely civil Dispute :- ILR 1997 (3) KAR 2145.
● IRREGULAR AFFIDAVIT –ILR 1997 (3) KAR 1856.
● Voluminous & irrelevant materials produced by both the parties- Bad- ILR 1997 (1) KAR 111.
● Natural Justice principles in all matters affecting citizens Rights/civil consequences. ILR1997(1)KAR833,973,758.
● A Precedent of 15 years old required to be reconsidered on changing economic conditions & other factors. ILR 1996 (4) KAR 3032. TUMKUR CASE.
● Suit for damages for Defamation: Damages awarded:- ILR 2001 (3) KAR 4142.
● Evidence produced without pleadings cannot be considered. ILR 1998(1) KAR 672.
● Impleading judicial officers as respondents not good – ILR 1998 (1) KAR 530.SC.
● When eviction is obtained by court by filing wrong address of tenant in court- ILR 2002 (1) KAR 847.
● Minor Discrepancies in the case of the parties cannot be blown out of proportion. – ILR 1998 (2) KAR 1957.
● Parties knowing fully well the case of the other had led all evidence- non raising of points needs no interference.- ILR 1998 (2) KAR 1403.
● Suit for direction to any authority to act in accordance with law is not maintainable- ILR 1998 (3) KAR 2612.
● When grant of land is proved by production of saguvalli chit, in a suit for possession of encroached portion, it is wrong to go to the extent of land which was in possession of the Plf in unauthorized coltivation. ILR 1998 (3) KAR 2262.
● ELECTION PETITION- ORDERS Passed by Munsiff- WRIT – Maintainable- ILR 1998 (3) KAR 2276.
● Long pendency of suits in courts does not create any rights in favour of the defendants. –ILR 1998(4) KAR 3580.
● Partition suit – plea of limitation taken –defendant says that suit was filed when finally plf denied to give share- unless defendant proves ouster limitation contention cannot be accepted. ILR 1998 (4) KAR 3161.
● Civil Procedure Code - Suit for declaration - Mode of proof - Whether High Court erred in holding that registered certified copy of sale deed was admissible in evidence as document produced was more than 30 years old - When plaintiff submitted a certified copy of sale deed in evidence and when sale deed taken on record and marked as an exhibit at trial stage, appellant did not raise any objection - Held, it was not open to appellant to object to mode of proof before lower appellate Court... Dayamathi Bai v. K.M. Shaffi (SUPREME COURT OF INDIA) D.D : 4/8/2004
● JUDICIAL DISCIPLINE
Application for refund rejected by the Assessing Authority - Appeal filed by the appellant for refund allowed by the Collector of Central Excise - Despite several representations amount not refunded Held, as no further appeal was filed against the order of the appellate authority, the order has attained finality - It was obligatory on the part of the concerned authorities to comply with the order passed by the Collector in view of the doctrine of judicial discipline Triveni Chemicals Limited v. Union of India and Another (SUPREME COURT OF INDIA) (D.D : 15/12/2006)
● OFFICIALS SHOULD ACT ACCORDING TO BEST JUDGEMET
Senior bureaucrats must act according to their best judgment until he is acting under the direction of his 'official' superior.... Tarlochan Development Sharma v. State of Punjab (SUPREME COURT OF INDIA) D.D : 25/6/2001
RULES OF PRACTICE;-
● Rule 56 CRP- Appendix -C- Finger print & hand writing analysis.
● Rule 138 CRP-The sale of Immoveable property shall ordinarily take place at the spot, subject to the condition that final bid shall be offered before the p.o. at the court house.
● Rule 148 CRP - No sale shall be held on a holiday.
● Rule 99& 100 CRP- Costs & Special Costs.
●
ORDER 1 & RULES :-
● Not applicable to representative suits ILR1980 KAR 1032., ILR 1987[2] KAR 1242.,
● Does not applicable to the case of defective description of parties AIR 1961 SC 325.,
● Inapplicable to the execution proceedings ILR1995[2]KAR 1815.,
● R/W O22 R 2, LR's steps into the shoes of their predecessors.ILR1999 KAR 117[july]
● Necessary parties are those without whom no effective orders could be passed AIR 1969 PUNJ., AIR 1963 RAJ 198.
● Proper parties are those whose presence is necessary to completely & effectively adjudicate upon & settle all questions in suit .AIR1963MAD 480,AIR 1967RAJ 131&252 ,AIR 1953 CAL 15, AIR 1957MAD 699,AIR 1958 SC 886, AIR 1970 RAJ 167 ,AIR 1970 TRI 80,
● Proper parties are added to avoid needless Multiplicity of suit & to protect his interest. AIR 1956 HYD 192.
● Appellate court can remand to add necessary party AIR1940ALL399, AIR1949LAH248,
● Test to add parties;-[1] adjudication of real controversy [2] to settle all disputes [3] Parties have substantative and direct interest.[4] whether only to vindicate certain other grievances [5]considerable prejudice to other side AIR1968 MAD 287& 142, 1967[2]MYLJ365.,
● No suit against dead person ,no LR application or impleading application lie. AIR 1946 SIND 20 , R/W O 22 R4&9,
● KAR HC Amendment- O 1 R10[6]-Court may on application transfer the position of plf to dft & viceversa.
● One co owner filing an eviction suit against tenant & denying the rights of other co owners therein Suit not competent without impleading other co- owners AIR 1994 KER 164.
● Issue of non joinder of necessary parties cannot be raised for first time in appeal AIR 1994 AP 72.
● Non interested party need not be impleaded in the suit , even though such party was a necessary party AIR 1994 GAU 18.,
● Orders passed does not amount to case decided hence not revisable by High Court ILR2000KAR 50SN.,
● O1 r8:-Requires averments in plaint & affidavit to fully satisfy the requisites. ILR 1997[2]KAR 1383
● O1 r8:-Person who files a suit in representative capacity is required to obtain the permission of of the court under o1r8, -Granting of permission during the pendency of the suit does not change the nature of the suit.ILR 2000 KAR 1511.
● O1 R10:- In ordinate delay in seeking addition of party - although an addition is possible at any stage- inordinate delay dissuade the court from directing addition ILR 2001 [1] KAR 312.[DB].
● O1 R10;- To a suit for specific performance, the defendant sought permission to implead KSFC as the Plf was to discharge the outstanding debt to KSFC ,IA dismissed-ILR 2000 (4) KAR S.N.219.
● Condition precedent to strike out or implead party.ILR1996(1) KAR97.
● O 1 R 3 & 9:- Respondents Head office is not necessarily party to suit – entitled to be decreed against regional office-ILR 1997 (1) KAR 553.
● O1 R8 R/W O7 R4 :-Prior notice is not required before granting permission to sue in representative capacity where public interest is involved. – ILR 1998 (1) KAR 616.
● O1 R8 :- Notice to defendants before withdrawing suit-ILR2002 (2) KAR 2172.
●
ORDER 2 & RULES ;-
● Objections as to misjoinder ;Waiver of objection if it is not taken before issues are settled .
● Leave of the court should be prayed ,at the time of filing of the suit ,for any other relief that may arise or leftout.AIR 1965 SC 295, AIR 1971 CAL 221, AIR 1961SC 725, AIR 1993 BOM 67,
● O 2 r 2:- sub rule-3:-Scope & conditions for applicability and its applicability to continous or recurring causes of action:-ILR 1997 [4] KAR 3288 [SC].
● O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957.
● O2 R2:- Chits funds Act:- Leave of court:-ILR 2001(1) KAR 1524.
● RULES THAT BAR FRESH SUIT IN RESPECT OF SAME CAUSE OF ACTION;
O 2 R 2 ;- Omission to sue in respect of claim.
O 9 R 2 ;- Decree against plf by default bars fresh suit.
O 22 R 9 ;- Abatement of suit or its dismissal under it.
O 23 R 1 ;- Withdrawal of suit or abandonment of part of claim without leave of court bars fresh suit.
O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957.
●
ORDER 3 & RULES;-
● Counsel for defendant being permitted to retire dft not entitled to court notice.
● Court has power under O 1 R 10A, to request any pleader to address in any suit of the party who is not represented by any pleader.
● R/W Evidence act sec 118:-It is not necessary that party should examine first-it can be through pa holder -it is valid evidence of plaintiff ILR 2001 (2) KAR 2628. ILR 2001 (4) KAR 4743.But not when GPA is not produced – ILR 2002 (1) KAR 1449.
● Code of Civil Procedure, O. 2 r. 2 - Appellant, borrowed a sum of Rs.1, 10, 000/- from the plaintiff Bank for the purchase of a bus - Secured repayment of that loan by hypothecating the bus and further by equitably mortgaging two items of immovable properties - Suit for enforcement of the equitable mortgage - Why second suit would not be hit by Order 2 Rule 2, C.P.C.?; In view of the finding arrived at vide para 19 of the judgment (Annexure P-2), why defendant No.1 should not have been held to have been discharged from the liability? - Held, suit to enforce the equitable mortgage is hit by O. 2 r. 2 in view of the earlier suit for recovery of the mid term loan, especially in the context of O. 34 r. 14 of the Code - The two causes of action are different, though they might have been parts of the same transaction - There is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it - High Court was correct in granting the Bank a decree in the suit - Appeal dismissed.... S. Nazeer Ahmed v. State Bank of Mysore and Others (SUPREME COURT OF INDIA) D.D 12/1/2007
ORDER 5 & RULES :-
● Suit summons has to be served in person, unless an agent empowered to accept the serviceis there. Service on the office clerk of the defendant is not proper service. ILR 2001 (4) KAR 4406.DB.
●
ORDER 6 & RULES ,;-
● Pleadings to state material facts & not evidence AIR 1937 LAH 795, AIR1959SC, AIR 1968SC 1083.
● Parties cannot be allowed to approbate & reprobate in their pleadings-AIR1993PH172
● Pleadings are foundations of case -cannot up new and different case-AIR1987SC2179
● Easementary right -special right-should be pleaded clearly & precisely- AIR1993KER91, ILR 1996[3]KAR 2826.
● Pleadings to be construed liberally ILR1996[4]KAR 3595.
● If IA is allowed & if the plf fails to comply the suit has to be dismissed. AIR1975AP 8,AIR1940NAG261,
● Where no legal right accrued & no prejudice to other side amendment allowedILR 1995 [2] KAR 1808.-Easementary Right of way not after prescriptive right lost.
● Guiding principles of amendment-AIR1957SC 363, AIR 1958 J&K62,
● Suit on pronote -amendment to delete same to make it one under original cause of action held not permissible-1982[1]ILR ,MYS 730.,
● Suit for specific performance of contract for sale-plaintiff wants to amend plaint by introducing his averments to readiness & willingness to perform his part of contract .It does not amount to change in cause of action hence allowed,AIR1998SC 1230.,
● Once amendment of pleading is allowed party itself must incorporate the amendment it is not ministerial act of the court AIR1993 BOM 175.,
● Plf through amendment tries to gain relief he had lost through efflux of time amendment cannot be allowed-AIR1993 AP 47.,
● Amendment of W/S not displacing plf case allowed.AIR 1994HP 33.AIR 1993DEHL1,AIR 1993 MP 248, AIR 1993 GAU 50&42,.
● Introducing new case not allowed- ILR1996[3]KAR2462.
● Amended application, which wanted to introduce material particulars & not material facts, is allowed ILR 2001 [4] KAR 4317.
● O6 r17 : & O8 r9:-New & inconsistent pleas cannot be raised under o8r9,such pleas can be raised under o6 r17.ILR 2001 [4] KAR 4580.
● O6 r5:- Party is entitled to better particulars in a proceeding ,if they are necessary to take a particular defense at the time of filing w/s but the party cannot seek particulars which are all matters of evidence:-ILR 2001[3] KAR 4350.
● O6 r17:- Doctrine of finality which attracts itself itself to a different stages of legal proceeding - No Amendment allowed - Because litigation gets dilated & goes on interminably:-ILR 2000 KAR 571.
● O6 R17:- Easementary right of way ;amendment to add relief of declaration - Not in absence of necessary parties & not after prescriptive lost. ILR 1995[2] KAR 1413.
● Specific relief act sec34&limitation act;- no permission to amend plaint after suit for relief barred by limitation during pendency of proceedings in appeal. ILR1996[1]KAR1067[SC].
● Delay of five years, matter known from 16 years-amendment not allowed-ILR 2000 (4) KAR 4550.
● Courts should be liberal in allowing amendments-, which do not change the cause of action, facts, & pleadings may succeed. ILR 1997 (1) KAR 543.
● Amendemnt of plaint for including phut karab – allowed in revision by HC with costs- ILR1998(3)KAR2249.
●
ORDER 7 & RULES ;-
● Courts can grant relief’s not prayed for in the suit. ILR 1999 [1] KAR 222. AIR 1994 AP 164. AIR 1994 AP 72.
● O7 r11: plaint can be rejected even after framing of issues: ILR1998 [4] KAR 3033[SC].
● O7 r7: Relief to be in the context of plaint allegations & cause of action, not larger than claimed in the suit & not barred by time.ILR 1996[1] KAR 941.
● O7 r11: Non payment of deficit court fee even though time to make good the deficit was granted more than once -plaint rejected -discretion vested in court . ILR 2001[1]KAR 868 [DB].
● O7 r10A: Procedure involving return of plaint for lack of jurisdiction - notice to parties - appeal against return - ILR1996(2)1893.
● Absence of willingness to perform his part of contract in plaint. AIR 1994 SC 1200. AIR 1978 KANT 98.
● Amendment made to plaint before presenting it to senior court when it is returned under O7 R10A- NO objection can be maintained for that. ILR1996 (4) KAR 3628.
● O7 R14 (1): - Suing with a different document, rather than document which was relied upon by plaintiff. ILR 1996(4)
KAR 3226.
● Suit for ejectment is not properly framed- ILR 1997 (4) KAR 3288. SC.
● Petition to Declare marriage as void – ILR 1997 (2) KAR 964.
● Rejection of plaint on the grounds of Limitation. ILR 1997 (2) KAR 1127.
● Eviction cause is a reoccurring one – ILR 1997 (2) KAR 1119.
●
ORDER 8 & RULES:-
● O 8 r 9 : Non filing of a rejoinder does not amount to admission in W/S . ILR1999 [JULY] 2539.
● O 8 r 6 : Counter claim , cross suit, & set off, AIR 1964 SC 11.
● O 8 r 5 : Pleading of ignorance of plaint averments amounts to admission of the averments- unless contrary is proved by implication AIR 1994 RAJ 133.
● O 8 r 1 : Deliberate delay in filing of the w/s in a suit suit suit for recovery of huge amount by bank -Held court competent to strike off the defence AIR1994PH10.
● O 8 r : Right of addl w/s against amended plaint. AIR1961HP46, AIR1978GUJ94.
AIR1949MAD622, AIR1953MAD492&504, AIR1955AP8, 1973[1]MYLJSN2,.
● O 8 r 6A :-Written statement filed - Issues framed - It would not deprive the defendant of the right to file counter claim.ILR 1999 KAR 4610.
● O8 R6A:- Defendant can file a counter claim any time before the commencement of the recording of evidence.ILR 1999 [1] KAR 898 [DB]. ILR 2002 (1) KAR 265.
● Liability not specifically disputed claim liable to be treated uncontroverted ILR1996[1]KAR435.
● Written statement was not filed till 1999 when the suit was filed in 1996. Plaintiff filed an application under O8 R10 Supreme Court , by appeal , allowed the application ILR2001 KAR 12[SC]
● O8 R6A;- Counter claim can be filed by party where evidence is not completely closed by the parties & before the matter is reserved for the judgement.ILR2001KAR179. case of ILR1999 KAR 898[DB] is interpreted & five Supreme Court cases referred.
● If W/S is not filed , it is neither necessary nor proper appropriate to direct the plf to adduce evidence in support of the facts pleaded by him. The court has to pronounce judgment and decree the suit. When there is no inconsistency in the facts pleaded by him. Court has to pronounce judgment on relevant facts :- ILR2001(1) KAR546 DB. When the suit is not barred by limitation, when defendant does not appear-Shall Decree- ILR 1998 (3) KAR 2653.
● Counter claim:- In a suit for recovery of money ,defendant claimed thathe incurred a loss of Rs 12000/- per mensum due to the intentional delay in releasing the loan amount & hence the suit be dismissed. It is well settled law that in such a cases defendants have to make counter claim by paying court fee, without this trial court should not go into such issue-
besides under sec 55 of contract act it is clear that “ when the promisee cannot claim compensation for delayed performance of the contract when the promisee has accepted performance, unless he gives notice to the promisor of his intention to claim damages.- ILR 1997 (2) KAR 1042.DB.
● Admissions in written statement ignored by lower courts- ILR 1998 (1) KAR 916.
● W/S not filed – it does not deprive defendant to cross examine –ILR 2002 (1) KAR 260.
● W/S not filed – cross examined by defendant –it amounts to contest – he can file appeal- ILR 2002(1) KAR 615.
●
ORDER 9 & RULES:-
● Consequences of non appearance of parties 1983[1]KLJ236, ILR1986[1]KAR166.
● Tenant evicted meanwhile 1989[2]kar1078.
● Whether suit summons is served or not is a question of fact ILR1997[3]KAR2631.
● Exparte decree set aside,-sufficient cause-1986[1]ILRMYS166,ILR1999[1]KAR932.
● Limitation act Art163[new Art137]: AIR1994NOC148,AIR1958HP9,
● Suit is posted for evidence -Adjourned for want of time on adjourned date suit is dismissed for default,order is not under o17r3 petition lies.ILR1982[1]MYS 439.
● Application to setaside the exparte decree on the ground of nonservice of summons - Held the applicant must show the source of the knowledge about passing of the expartee decree .AIR 1994 PAT 103.
● Restoration application on the ground that non-appearance of counsel due to strike call not allowed on this ground. AIR1993P&H 134.
● Postman testifying services of summons by refusal, no illegality in passing exparte decree AIR 1994 RAJ 9.
● An exparte divorce decree was obtained against wife & the husband expired there after, aggrieved wife can file application for setting aside exparte decree even though husband might have expired prior to moving of such application under o9r13.In such proceedings legal heirs of deceased husband can be brought on record as respondents. AIR1997 SC35.
● O 9 R 4 : 30 days limitation ILR 1995[4] KAR 3122.
● O9 R8&9 :-Claim petition dismissed for default in 1984 were restored in 1993 after condoning delay on the grounds of illetaracy.ILR 2000 [3] KAR S.N.122.
● O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert & holding that process server has forged the signature of the defendants. ILR 2001(1) KAR 1391.(SC).
● Restoration application can be filed even in cases where second petition could be filed – ILR 1997 (2) KAR 911.
● Non appearance of contesting defendant at subsequent stages & failure to cross examine is a exparte Decree. ILR 1997 (3) KAR 1909.
● O9 R 13:- Name of ADV not shown in cause list is sufficient reason for setting aside exparte decree- ILR 2002 (2) KAR 1828 (SC).
● O9 R9 & O33 R1:- Petition dismissed under O33 R1 amounted to dismissal of plaint hence restoration petition maintainable ILR 1997 (2) KAR 911.
●
ORDER 11 & RULES:-
● PRODUCTION OF DOCUMENTS- stage of disclosure - ILR 1996 (2) KAR 1649 (DB).
●
ORDER12 RULES:-
● O12 R6:- Opportunity has to be given to explain admissions,inference as to admission can be drawn on the pleadings or in the application ,ILR 2001(2) KAR 1706.(SC).
● Trial court judgment under O 12 R 6 amounts to Decree – Revision did not lie – ILR 1996 (4) KAR 3091.
●
ORDER 14 & RULES:-
● Relationship-& jurisdictional fact -whether to be tried as prly issue-1981,2mylj395.
● Unless pleaded by party ,cannot be decided by courts as a preliminary issue AIR1993 ALL2.
● Non framing of an important issue held not fatal both parties were aware of the issue & led evidence -AIR 1994GAU64.
● Party permitting the case to be decided without raising a specific plea can be said to be waived the plea. AIR 1993 KAR 257. ILR 1992 KAR 2224.
● Issues involving mixed questions of law & fact cannot be tried as preliminary issues -question as to valuation involves mixed question of fact & law not pure issue of law. ILR 1995 [4] KAR 3420.
● No Revision lies as against the framing or non framing of issues ILR 2000 (4) KAR S.N.232.
● Framing of additional issues & remanded to trial court by first appellate court,-ILR 1996 (4) KAR 3206.
● Sale Deed held invalid without there being any issue- ILR 1998 (1) KAR 719.
● It is mandatory to decide all issues though the decision may depend on one issue alone. ILR 1998 (2) KAR 1412.
●
ORDER 15 & RULES:-
● Suit for injunction- alleging encroachment & putting up construction – defendant claim is that he is not encroaching & putting any construction. The defence put up by defendant does not amount to admission. Suit has to be dismissed for want of cause of action- ILR 2001 (4) KAR 4386. SC.
●
ORDER 16 & RULES:-
● One party in a suit citing other party as his witness,when 1965[2]MYLJ788, 1974[1]KLJ70, AIR 1938 PC.
● Warrant not to be issued unless evidence of witness is material 1977[1]MYLJ370. 1970[2]MYLJ348.
● Refusal to allow party to lead further evidence AIR 1958 J&K27.
●
ORDER 17& RULES:-
● In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment if any granted would certainly be for reasonable grounds, that aspect need not be examined once again if on the date of adjournment sought the party concerned has a reasonable grounds ,the mere fact that in past adjournments were taken is of no effect. If ADJ is sought on filmsy grounds the same would be rejected. ILR2001(1) KAR 1387SC.
● Seeking ADJ on valid grounds-Denial of opportunity to present case:-ILR 2000 (4)KAR 3483(DB).
●
ORDER 18 & RULES:-
● Hearing of the suit & examination of witness ,1974[1]KLJ249,ILR1988[3]KAR1840.
● Plaintiff 's failure to produce hand writing expert at the time of rebuttal evidence , cannot be allowed to produce at later stage AIR 1993P&H 106.
● Fresh factual evidence - Hearing - If fresh factual evidence is brought in & it is likely to influence the decision , a fresh hearing should be given ILR1999[3]KAR3380.
● Producing documents at late stage &recall of witness is permissible. ILR 1997 (3) KAR 1917.
● O18 R17 & O6 R17 :- PARTITION SUIT – TWO IA’S allowed – ILR 2002 (2) KAR 2280. (SC).
●
ORDER 19 & RULES:-
● Affidavit to prove substantative right -noILR 1993 KAR 1361.
● Affidavit are not included in definition of evidence Held plf cannot be allowed to fill up lacuna belated by here AIR 1988 SC 1381.
● Defective affidavits entails rejection:- ILR 1998 (1) KAR 730.DB.
● Affidavits in evidence before tribunals- permissible. – ILR 1997 (2) KAR 1007.
ORDER 20 & RULES:-
● Where a suit proceeds exparte or opposite party leads no evidence in rebuttal plaintiff will not be entitled to a decree unless he proves his case by legal evidence. AIR1993MP194
● O20 R18,:-Once final decree was drawn in a partition suit application for enquiry into profits derived by the plaintiff cannot be entertained as there is no such direction in the final decree ILR 2000 KAR 1026
● O20 R18:- After passing of preliminary decree & before passing of final decree ,death of some of the parties -Share of the parties enlarged, no bar for passing second preliminary decree: ILR 1996 (1) KAR 963.
●
ORDER 21 & RULES:-
● O21 R97:-Resistance or obstruction to possession of immoveable property DHR may make an application against resistance AIR 1998 SC 1754.
● O21 R97:- A third party in possession of a property claiming independent right as a tenant not party to a decree for possession of immoveable property under execution could resist such decree by seeking adjudication of his objection under o21r97 AIR1998SC1827.
● O21 R97:- 1975[1]MYLJ374, 1970[1] MYLJ419,1971MYLJSNRD380,
● O21 R85:- Deposit of full purchase money with in 15 days-no power to extend time ILR1994[3]KAR1933
● O21 R90:- Limitation Act Art 63,127- Applic- -ation for setting aside of sale in execution proceedings-30-days. Mere irregularity in attachments does not vitiate the sale- AIR 1994 SC 1583. ILR 1996 (4) KAR 3193.
● O21 R90:-Conduct of auction sale at different place that publicized in auction notice resulting in fetching inadequate price ,sale held, vitiated.AIR 1993 P&H 207.
● O21 R90:-Auction sale held a nullity if the proclamation of sale was not widely publicized in terms of the provisions of sec 67[2] and the property auction fetched only 1/3rd of its value as a consequence thereof .AIR 1993 KAR 279, 1993[1] KLJ 519.
● O21 R58:-Investigation of claims ILR1995[2]KAR 1810,
● O21 R58:-Attachment of gratuity and pension not permissible ILR1997[1]KAR 645, ILR 1997[2]KAR738.
● O21 R54:- ILR1999[JULY]119.
● O21 R57:-Attachment before judgment - execution- Dismissal for default - effect - attachment comes to an end if the execution petition is dismissed in default -attachment in execution of the decree shall not supersede the provisions of O 38 R 11,-property attached before judgement not to be reattached in execution of decree 1969[2] MYLJ 465. AIR 1994 NOC 168 [MAD].
● O21 R58:-Claim petition can be filed before confirmation of the sale 1958MYLJ158 AIR 1958 MYS 140, ILR 1957 MYS 351.
● O21 R :- Execution of decree to be executed on principal debtor first AIR 1987 SC 1078.
● O21 R :- Orders not appealable -ILR 1991 [2]KAR 1213,ILR 1994[1]KAR 145,
● O21 R11:-Production of copy of decree is not obligatory if the execution is taken in the same court which passed the decree MYLJ 23-6-1966.
● O21 R :-Before staying execution court should require strong prima-facie case in favour of adjustment of decree. AIR 1993 MP 13[DB].
● O21 R :-New plea cannot be raised for the first time in execution proceedings. AIR1993 ORI 257.
● O21 R :-Execution of decree ought not to be refused unless decree itself is a nullity
● O21 R :-Death of decree holder during pendency of the execution proceedings- His legal representatives can continue the proceedings after obtaining the succession certificate.AIR 1993 KAR 321,ILR 2000 KAR 4411 [DB],ILR1992KAR2807,
● O21 R :- Auction sale set aside,AIR 1994 SC 1292,
● O21 R :-In auction sale this is obligatory on the court that only such portion of property as would satisfy decree is sold & not the entire property AIR1990SC119 1989[3] SCC 409,
● O21 R72:- Mere irregularity does not vitiate it , appellant to show that substantial injury has been caused to him as a result of o21 r72 having passed without notice AIR 1991 SC 770.
● O21 R :-Defective execution application , defect can be cured wiyh the permission of the court No cure sumotto by court AIR1994SC1286, AIR1994BOM 217.
● O21 R :- Whe the decretal amount is deposited by the judgement debtor in the court then the court has jurisdiction to decide the rateable distribution AIR1994AP53.
● O21 R :- Money decree passed against company and its managing director, the decree is not passed against managing director in his individual capacity -He cannot be sent to jail in enforcing of the decree. AIR 1993P&H 215.
● O21 R :-Immunity from attachment there under with regards to residential house -held not available to debtor -unless he establishes connection between the agricultural operations carried on by him & the house sought to be attached U/SEC 60 ,1963[2]MY LJ141.
● O21 R83[3]:-Sale in enforcement of mortgage ILR1995[4]2963, ILR1996[2]2466
● O21 R39[1] :-No arrest warrant can be issued before the decree holder pays into the court subsistence allowance determined by the court. ILR1997[4]KAR3238.
● Starting point for limitation is Date of Decree & not date on which decree is actually drawn & signed AIR 1999 SC 342.
● O21 R21&22:-Declaratory decree which only declares the rights of the DHR qua JDR & does not in terms direct JDR to do or to refrain from doing any particular act is not an executable decree DHR shall have to file a separate suit. ILR 1999 KAR 3896.
● O21 R90 & O43 R1[J].:-Against orders under o21 r90 Revision does not lie -only appeal lies. ILR 2002 (2) KAR 2374.
● O21 R58 &TP ACT sec39:-Person who is bound by law to maintain his wife cannot avoid the liability by transferring his property because the liability to maintain goes along with the property & the transferee becomes liable ILR 1999[2] KAR SN.112.
● O21 R101 & sec 47:- Sons of deceased tenant not residing with him on the date of death not tenants. ILR 1995 [3]KAR 2460
● O21 R35:- Once the DHR is put in possession of the property as provided under R35 the DHR cannot maintain second execution petition alleging dispossession by JDR subsequentely.ILR2001(1)KAR1684. ILR 2000(4)KAR 1684.
● O21 R90:-Auction sale -setting aside-fraud &material irregularity -certificate of sale-right to possession-Resjudicata applies to applications under section 151 CPC for setting aside court auction sale. ILR 2001 (1) KAR 1552.
● O21 R64 & 72(3):-Applicants claimed right & title to property as ancestral property, executing court without deciding the question, whether it is ancestral or not, directed to sale it by auction,- Sale declared null & void ,EX- court directed to restore back possession back to JDR- ILR 2001 (2) KAR 2499.
● O21 R41,58,:-& TP Act Sec 41:- executing court cannot sit upon judgment as to whether charge created in the decree is correct or not particularly when the decree has become final,(JDR wherein sold the property prior to the date of decree ILR 2000(4)KAR3613.
● JDR'S Contention that decree is not executable in view of provisions of IT Act that form 37-I to be filed by seller & buyer in the transaction of above 10 lakhs. ILR 2000 (4)K AR 3641.
● O21 R1-3;- Court cannot recognize any payment made outside court unless certified-ILR 1995(4)KAR3461,2959.
● MINOR irregularity in execution proceedings – no substantial injustice & not liable to set aside. ILR 1996(4) KAR 2906.
● OBJECTIONS as to sale of all properties when one property fetches decree amount :- can be raised by JDR. ILR 1996 (4) KAR 3193 & 3560.
● O21 R84 –ILR 1997 (3) KAR 1940.
● Heavy costs to be awrded when applications filed to delay proceedings – ILR 2001 (4) KAR 4784.
● SEC 146 & O21 R16:- Transferee of property in respect of which Decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907.
● O21 R16:- Transferee of property in respect of which decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907.
● Decree for possession- obstruction by person claiming title to the property by way of objection- executant court can consider all the questions raised by objector and can pass orders which is treated as decree.ILR2002(1)KAR1300SC.
● Auction sales in two courts – ILR 2002 (1) KAR 1273.
● Auction purchaser is proper party in execution proceedings after sale date- ILR 2002 (2) KAR 2689.
● Partition suit – sharers in possession – cannot defend their possession- on the basis of preliminary decree as there is no final decree passed & partition of the property has not taken place by metes & bounds ILR 2002(2) KAR 2749.SC.
● Purchaser of property prior to the date of decree, and who was not party to that suit –can object under section 151 of CPC. – ILR 2002 (2) KAR 2555.
● Withdrawing Execution Petition by reserving right to file fresh execution second time maintainable – ILR 2002 (2) KAR 2699.
● Execution petition after 22 years – ILR 2002 (2) KAR 2699.
● Owner of the property executed an agreement to sell to plaintiff – later sold to tenant in occupation of building – suit for specific performance against both decreed- In execution tenant objected to give actual possession- & claimed compensation for expenditure on repairs. Held – tenancy rights of JDR merged with ownership rights after he purchased. Apart from constructive possession, actual possession is delivered, directed to execute conveyance deed, amount spent is held as “without the consent of owner”. ILR 2002 (2) KAR 2989.
● INJ to restrain executing eviction order erroneous. ILR 1997 (2) KAR 800.
● Bank ( plaintiff ) can participate in auction bid of agricultural land , by permission of court, in view of exemption under section 81 of land reforms act. ILR 1998 (3) KAR 3028.
● Code of Civil Procedure, 1908 - O. 21 r. 97 - Specific Relief Act, 1963 - s. 19(b) - Whether a purchaser of a vacant land under registered sale deed and claiming to be in possession of the land can maintain an application under O.21 r. 97, complaining of his alleged dispossession in execution of the decree of specific performance of contract of sale obtained ex parte by the decree holder against the original owner of the suit property - Held, the provisions of O. 21 rr. 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits - Further held, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the Objectors under O. 21 r. 99, and decided the other issues on merits of their claims arising between the decree holder and the objectors.... Ashan Devi and Another v. Phulwasi Devi and Others (SUPREME COURT OF INDIA) D.D : 19/11/2003
● RESISTANCE TO EXECUTION OF DECREE
When a decree-holder complains of resistance to the execution of a decree for delivery of possession of immovable property, it is incumbent on the execution court to adjudicate upon it while determining only such question, which is relevant to the adjudication of the complaint and has arisen legally between the parties.... N.S.S. NARAYANA SARMA AND OTHERS V. MESSRS GOLDSTONE EXPORTS P. LIMITED AND OTHERS (SUPREME COURT OF INDIA) D.D : 23/11/2001
● COURT AUCTION AND SALE
Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Application of terms and conditions of sale of properties in terms of the provisions of 1992 Act - Grant of sanction to the sale by Special Court - What would be the interpretation of the terms and conditions of sale?; whether having regard to the interim orders passed by this Court, the learned Judge, Special Court could confirm the sale - Held, if there had been a stay in regard to acceptance of the bid, it could not have been sanctioned - It could be sanctioned subject to the final order of this Court - Moreover, when this Court issued direction in regard to confirmation of sale, the matter ought to have been considered afresh - Acceptance of the bid was subject to order of this Court which, by reason of the order of the Special Court or otherwise did not result in a concluded contract - Matter is remitted to Judge, Special Court for consideration of the matter afresh in the light of the observations made - Order accordingly.... Yogesh Mehta v. Custodian Appointed Under The Special Court and Others (SUPREME COURT OF INDIA) (D.D : 4/1/2007)
ORDER 22 & RULES :-
● O22 R9&10A:-Death marriage & insolvency of parties-Factors to be taken into account while condoning delay in bringing LR's on record . ILR1999[4]KAR2767SC
● No abatement of suit when one LR is already on record AIR 1971 SC 742.
● When claim is made against all debts suit will not survive after death of the one of the defendants.ILR 1988 KAR 549.
● LR's include heirs as well as persons who represents the estate even without title 1989[2] SCJ 474.
● O22 R2& O1 R10:-LR's steps into the shoes of their predecessor. They cannot take up any other defence arising out of their individual Rights.ILR1999[3]KAR75&SN117.
● O22 R 4 ;- LR'S have a right to file a W/S ILR 2001 [1] KAR SN5.
● O22 R3& 4;- Non substitution of LR'S of deceased surety will result in abatement of appeal only against the interest of surety ,without affecting the liability of the other parties actually present.ILR 2001 KAR (DB)312. ILR 2001KAR (DB)236 SC.
● O22 R4 & 5 :-Orders passed under does not operate as resjudicata & does not conclusively establish right title to the property or decide such a person as a heir of the deceseased for the purpose of continuing the suit. ILR 2001 (2) KAR 2292.
● All legal heirs to be brought on record-ILR 1995(4) KAR 3389.
● Dispute as to who is the LR- ILR1996(1) KAR 832.. ILR 1996 (3) KAR 2229.
● Existence of Proceedings not known is the reasons shown for delay to file LR application- delay condoned – ILR 2002 (1) KAR 1064.SC.
●
ORDER 23 & RULES:-
● AIR 1985 KAR 166, ILR 1984[2] KAR 194, AIR 1968 SC 111, 1969[2]KLJ522, 1980[2]KLJ390, ILR 1997[3] KAR 1865.
● Advocate can enter into a compromise ILR 1993[1]KAR584[DB].
● Withdrawl of appeal 1974[2] KLJ 74.
● Rent control case ILR 1994 [3] KAR 2455.
● Validity of consent order depends wholly on legal validity of agreement on which it rests AIR 1992 SC 248.
● Compromise does not create a fresh lease - Registration of the compromise not required.AIR 1993 BOM 34.
● O23 R3 & O43 R1A:-Application for setting aside compromise decree maintainable ,and also appeal is maintainable ILR 2000[1] KAR 86. Mandatory procedure to set aside- ILR 2001 (2) KAR 2633(SC).
● O23 R1[4] [B] :-Land lord withdrew the eviction petition without reserving the liberty to file afresh petition subsequently the landlord filed yet another eviction petition on the same cause of action, H.C reling on 1984[2] KLJ 35 held that landlord without seeking the permission of court for second eviction petition is clearly barred under o21 r 1[4] [b]. ILR 2000 KAR 1651.
● O23 R1&3A:- Compromise can be recalled only if it pleaded that fraud is played in bringing about the compromise between the parties also held that suit to set aside compr- omise decree itself is not maintainable ILR1999[3]KAR3344,ILR1995[4]KAR3389.
● O23 R3:- When one party to the suit sets up a compromise in the suit & the other party does the same, the court has to enquire into the matter & has to record a finding whether there was a compromise or not. ILR 2001(1)KAR 1498.
ILR 2002(1) KAR 468.
● O23 R1(3):- PLF is having unqualified right to withdraw suit & if he seeks permission to file fresh suit, he is liable to pay costs, ILR 2000 (4) KAR 4295.
● COMPROMISE IN DIVORCE CASE :- ILR 2001 (3) KAR 3459.DB.
●
ORDER 26 & RULES :-
● Report of commissioner is a piece of evidence ILR 1995[2]KAR 1123.
● REPORT &VALUE OF IT:-ILR 1995 [4] KAR 3286&3428, ILR 1999 [2] KAR 2231, ILR1990KAR2451,
● Acceptance or rejection of commissioner report - courts discretion AIR1965CAL199,
● Suit for injunction -question of possession to be decided by court on the basis of evidence not to be delegated to commissioner ILR 1996[2]KAR 1813,1443,
● Appointment of commissioner where possession & measurement admitted ,No appointment to collect evidence,ILR 1995[2]KAR 1813.
● Commissioner not to be appointed before filing of written statement 1977[1] MYLJ SNRD 131, 1970MYLJSNRD377,
● Appointment of commissioner for blood test & genetic finger printing test ,protection under Art20[3] confined to criminal proceedings not civil proceedings. ILR 1995[2] KAR 2642.
● A party or a witness or a witness in a civil proceedings cannot be compelled to give sample of his blood or subject himself to medical examination against his will ILR 2000 KAR 408.
● Commissioner to examine Ailing witness:-ILR 2000(4) KAR 3623.
● Disputed signature on will- Handwritting expert- ILR 2001(2) KAR 2681.
● The acceptance of commissioner's report cannot amount to a decree.ILR 1996(2) KAR 1552.
● Value of court commissioner report in earlier suit –ILR 1997 (3) KAR 1993.
●
ORDER 33 & RULES ; SUITS BY INDIGNENT PERSONS :-
● Ornaments given at the time of marriage which is meant for wearing during married life are exempt under sec 60(1) (a) in determining capacity to pay court fee.ILR 1996 (2) KAR 1542.
● O33 R2&3:- Petition did not disclose cause of action ILR 2001 (3) KAR 3729.
● Commences from the date of filing application – ILR 1997 (2) KAR 911.
● Application in appeal. ILR 1997 (2) KAR 1291. DB.
● PERSON WHO HAS TAKEN A LOAN WANTS TO FILE A SUIT FOR DAMAGES in forma pauperis. His application is rejected for several reasons. ILR 2001 (4) KAR 4796.
● Is arrears of maintenance taken into account – ILR 1997 (2) KAR 1198.
● Application by a person owning more than three acres of land – ILR 1997 (2) KAR 1535.
● Does not apply to Mortgage Suits – ILR 1998 (2) KAR 1842.SC.
●
ORDER 34 & RULES:-
● O34 R :-Writ petitions seeking relief of payment of interest on delayed refund could not be maintained.ILR 1999 [1] KAR 1 SC.
● Interest to be awarded at agreed rate - Industry or Commercial ILR1993[2] KAR 1427.
● Interest on bank transaction 1977[2] MYLJ 46,
● Interest from date of suit till realization . Defendant to show his financial position for awarding lesser rate than the RBI rate ILR 1992 [JULY]KAR 2016.
● Increase in rate of interest as per RBI directive , by banks , Increase without notice to debtor violation of Natural Justice -Circulars themselves envisages intimation to debtors & obtaining their consent. ILR 1994 [2] KAR 1129 DB.
● Rate of interest in Bank cases ILR 1995 [3] KAR 2214.
● Section 21A of Banking Regulation Act 1949 does not override O34 R11 of CPC. -ILR 2001(1) KAR 553.
● Courts Discretion to award interest – ILR 1997 (2) KAR 1042.
●
ORDER 38 & RULES :-
● O38 R6[2]:- ILR 1996[4] KAR 3310.
● Arrest & attachment before judgement-ILR1985[4]KAR3989.
● O38 R5&8,:- Attachment of property before judgement refers only to the property of the defendant & no others property attached is valid one even if it is offered voluntarily ILR 2000 KAR 586.
●
ORDER 39 & RULES :-SECTION 94:-
● Section 151 CPC R/W O39 R1&2-Defendant can claim for T.I.Order ILR1989[1]KAR962,1975[1]KLJ96,ILR1986[2]KAR130.
● O39 R1&2 Open only to plaintiff ILR 1993[1]KAR161,
● Declaration -Injunction-Date of birth-ILR 1992[1] KAR KAR 554.
● No appeal against ex parte T.I.-ILR 1991[3]KAR 3271.ILR1994[2]KAR1653.ONLY O39 R4-ILR1996(1)KAR961.
● No injunction against un ascertained property ILR 1991[2] KAR 1696. ● ILR 1994[3] KAR 1715.
● Exparte T.I cannot be granted when caveat U/S148A lodged,ILR1997[1]KAR29.
● O39 R1&2, O40 R1,:-In a suit for injunction plaintiff sought T.I & the defendant appointment of receiver -Trial court dismissed the application for the appointment of receiver filed by the defendant, but allowed inj restraining defendants from running the business in the premesis.-High Court refused to appoint receiver ,SUPREME COURT also refused and dissmed appeal .ILR1997[4] KAR 2487 [SC].
● Siddaganga Mutt's Case:- ILR 1989 [2] KAR 1701.
● When trespasser can get T.I. ILR 1999[2] KAR 1451.Even against true owner-cannot be thrown out except under due process of Law,ILR2000,KAR 435. ILR 2002 (1) KAR 174. NO T.I AGAINST TRUE OWNER -BY TRESSPASER-ILR 1986 (1) KAR 1130.
● Right to conservancy ILR 1975 MYS 875, AIR 1975 MYS 99,1975[2]KLJ109.
● INJ against co owners cannot be granted or a co sharer in possession restraining him from using the property in a manner which will change the nature of the property . Great caution should be exercised in such a cases AIR 1962 MAD 260, AIR 1958 AP 431, AIR 1958 PUNJ 318, AIR 1914 CAL 362, AIR194 CAL 436.ILR1999[3]KAR3037. 1972(2) MYLJ 126->unless lawfull possession made out.
● T.I. Grant of circumstances,1962 MYLJ 127, AIR 1952 MYS 76.ILR1952MY354,
● T.I - Subsoil water right ILR 1954 MAD 793.
● O39 R3 :- Police help should be given to party in whose favor INJ order is granted, AIR 1982 AP 394 [OCT]. ILR 2001[1] KAR 462.
● Court cannot direct police to give protection AIR 1971SC742,1976[1]KLJsnrd40,
● O39 R2A:-ILR 1973 MY 391, 1974[2]MYLJ SN 140&78, 1981[1]MYLJ33,ILR 2002 (1) KAR 976.
● Lesse is entitled to be in possession till evicted in due process of law ILR 1985[2] MYS 3700.
● P.I &T.I.,:- Matters to be considered at the time of trial are different for consideration of point at the time of disposal of IA ILR 1986[1] MYS 171.ILR1996[1]KAR753.
● INJ against third party AIR 1949 PAT 496.
● Supreme Court will abstain from passing Interlocutory order U/S 94 if it has effect or tend to be susceptible of an inference of pre judging some important & delicate issue in main matter. AIR 1992 SC 63.
● T.I. restraining authorities from canceling contract cannot be granted. AIR1993ALL78,
● The punishment of civil imprisonment in case of violation or disobedience of the order of Inj of a court is to be awarded " In addition to" & not "in lieu of" or in the alternative of the punishment of attachment of his property. Detachment order passed there under is appealable. AIR 1998RAJ115,AIR 1994 BOM38.
● Belated application for cross examination of the deponent with the object to delay the determination of injunction matter - application rejected.AIR 1994GAU52.
● When a party makes an application for an immediate exparte TI & the court refusal to grant such INJ & instead issues notice to the opposite party , the order of refusal appealable under O43 R1[r]
● Patent infringement-ILR 1995[3]KAR2010.
● Demolition by municipality ILR 1995[3]K AR2615.
● INJ against public authorities -Directions for the courts to follow the directions laid down by Apex Court- ILR 1995[4] KAR 3579.
● QUASI-JUDICIAL authorities cannot usurp the rights of Civil courts, AIR 1968 SC 620. AIR 1987 KAR 79.
● O39 R3A:-Exparte TI to be disposed of within 30 days - If not appeal lies appellate court may taking suitable action against erring Judicial officer including recommendi- -ng to take steps for making adverse entry in his ACR's. Party obtaining exparte TI has to perform his duty under cl[a]&[b] of O39 R3. Disobedient beneficiary of order cannot be heard to complain against any dis obedience alleged against other party. ILR 2001 KAR 1.[SC]
● Suit for Dissolution of partnership,T.Iwas sought for restraining business activity&alie nation of properties.Only T.Inot to alienate the property was given. ILR2000 [4]kar 3624.
● Khartha sold it , other coparceners have no right to interfere with alienee . Alienee entitled to T.I. to protect his possession ILR1996[2]KAR 1883.
● Suppresion of fact of earlier dismissed application ILR1996[2]KAR1618.
● DIRECTION TO POLICE FOR ENFORCEMENT CAN BE GIVEN:- ILR 1996[2]KAR 1271.
● Principles under Specific Relief Act having controlling power when T.I. granted- hardship or injury- ILR1996[2] KAR 1485.
● NO T.I. IF SUIT ITSELF IS NOT MAINTAINABLE-ILR1992[4]KAR1772.
● Previous litigation & finding & new T.I.- 1977 [2] KLJ 489.
● O39R4:- When house building society allotted sites to plf only on the basis of approved plan of layout -No final notification in acquisition proceedings has taken place-society is not having any title. Plf getting T>I> on the basis of plan of layout- not proper-ILR2001(2)KAR3249.
● T.I may be granted even if P.I. is not sought in suit- ILR 1987(3)KAR 2863.● Undertaking given to court - 1974 (1) KLJ S.N.180.
● O 39 is not applicable to probate proceedings 1963(1) MYLJ 549.● Inherent powers -T.I can be issued -1962MYLJ 1037.
● Inj to restrain departmental enquiry- 1979 (1) KLJ 338.
● Attachment before Jdt & grant of T.I -different-1975(1)KLJ S.N.161.
● Primafacie case - Imminent danger -irreparable loss - Balance of convenience -1970 (2) MYLJ 82.
● Seizure of accounts and documents - courts cannot pass such orders -AIR 1961 SC 218.
● Discretionary relief of injunction should not be granted when equally effacious remedy is available.-AIR 1976 SC 2621.
● Possession- & Inj- 1974(2) KLJ 484.● POSSESSION GOES WITH TITLE- 1983(1) KLC 7.
● QUESTION OF TITLE NOT raised -peace full enjoinment for long period -Inj granted -1982(2) KLJ 301,1231.
● Mandatory INJ - cardinal principles -1983 (2) KLJ 377.
● Intending Transferee in possession files Inj suit -section 53A of TP Act -1981(2) KLJ 388.
● Neither plaintiff nor defendant establishing possession- one of them establishing title- presumption of possessionin his favour to be made 1983 (1) KLJ 69.
● INJ against PLf not to proceed with earlier suit - Requires great caution & care - such an order should not be made unless in absolutely necessary - AIR 1962 SC 527. AIR 1976 DEL 60.
● Delay in approaching court not a ground to refuse INJ - 1981(2) KLJ 92.
● Unsustainable T.I - failure in considering standing orders by trial court - Misapplication of law and order illegal. 1981(1) KLJ 350.
● Coclusion of courts should be based on material facts - news paper cutting, opinions expressed by judges reported in news paper- should not influence judicial process.-ILR 1985 (1) KAR 918.
● CONDUCT OF PARTY IS RELEVANT. - 1975(2) KLJ 428. - 1965 (1) MYLJ 370.
● INJ against members of SOCIETY WHICH IS UN REGISTERED cannot be issued- AIR 1981 CAL 393.
● Aggrieved by conditions imposed in granting T.I , only revision lays & not appeal before HC ILR 1996(3) KAR 2352.
● Plf aware of it - and guilty of acquisence -Bal of con not in Plf favour-T.I rejected.ILR 1996(4) KAR 2957.
● Primafacie case not established - ILR 1997 (1) KAR 304.
● Oral agreement - INJ restraining sale could not be granted- AIR 1995 MAD 172.
● No Interim order to stop executing a will – ILR 2001 (3) KAR 3466 DB.
● Grant of exparte order without issuing notice to caveator is illegal. ILR 1997 (1) KAR 29.
● Maintenance of status quo ought to be ordered- ILR 1997 (2) KAR 900.
● INJ vacated when it is given without finding as to possession. – ILR 1997 (2) KAR 999.
● INJ may be given only by making proper provision for its confirmation or modification or hearing the other side otherwise it is arbitrary – ILR 2001 (4) KAR 4634.
● INJ Restraining a person having life interest only under the terms of will from alienating the property – cannot be granted. ILR 1997 (4) KAR 3089.
● O39 R4 & SEC115:- Appellate court should not interfere lightly with the discretion excercised by trial court.- ILR 1998 (1) KAR 419.
● Mandatory Injunction – Encroachment in 3 guntas of land – when large portion of landis encroached mandatory INJ shall have to be issued as the plaintiff will be losing not only his right over site but also a right to put up the building of his choice. ILR 1998 (2) KAR 1976.
● Suit for Declaration & Mandatory INJ :- ILR 1998 (2) KAR 1206.
ORDER 40 & RULES :-
● O40 R3:- Return of plaint for presentation to another court after court appointing receiver - court having jurisdiction over receiver.1968[2] MYLJ 474.
● Receiver can be appointed after decree to safeguard the interest of parties - during pendency of further proceedings. 1963 MYLJ 145.
● AIR 1952 NAG 258, AIR 1954 PUN 122, AIR 1957 NAG 1, AIR 1955 MP 40, 1965[2]MYLJ 548.
● Sub Rule 2 of O40 R1 Clearly indicates that the court & its officer does not possess any right higher than the right a party to a suit possess AIR 1997 SC 173.
● Receiver taking vacant possession of the property can not induct tenant in the property without the permission of the court.AIR 1993 BOM 265.
● Receivership cannot be imposed on the parties by the court. AIR 1994 SC 478.
●
ORDER 41 & RULES :-SECTION 107:-
● Appeals from original decrees ILR 1992 [2] KAR 3772.
● Remand order can be passed only when the appeal is heard on merits. 1972 MYLJ dt 23-3-72 SNRD.
● Appeal court has no jurisdiction to set aside the decree, which has not been appealed against. 1972 MYLJ dt 23-3-72 SNRD 112.
● Sufficient evidence on record enabling the appellate court to come to the just & satisfactory conclusion, No ground exists for making order of remand AIR1968MY266, 1968[1]MYLJ288,ILR 1999[3]KAR[SC] 2897.
● O41 R5 :- Stay of INJ order, AIR 1937 ALL 528, ● Cross Objections- ILR 1995[4] KAR 2732.
● Remand and re opening - ILR 1995 [4] KAR 2072&3100. ● O41 R11:- ILR 1997[2]KAR1291.
● O41 R23:-Remand-powers of High court should not ordinarily be exercised merely be- -cause in its view reasoning of lower court in some aspects was wrong AIR1999SC1125
● O41 R3A Sec 5 of LMT ACT :- In case of time barred appeals - condonation of delay applications- Court can & has power to give an opportunity to the party concerned to remove the defect by filing an application for condonation of delay ILR1999KAR3762.
● No court can scuttle or foreclosure a statutory remedy of appeal or revision by directing a party to give an undertaking regarding compliance of its orders. ILR 1999 [1] KAR 623 [SC].
● o41 r27:- Question of production of evidence in appellate court does not arise at all, as the respondent had not filed the written statement. ILR 2000 [4] KAR 5033.
● O41 R30;- Appeal dismissed without giving reasons and considering all points -not proper.ILR2001KAR235(SC).
● O41 R33:- Rule is to award contractual rate of interest, reduction in INT only for good reasons. ILR2001KAR (DB)312.
● O41 R1:- Jurisdiction can be excercised in Review of Judgments only if there is error apparent on the face of record
ILR 2001(1) KAR 679, But not too late :- ILR 1997 (4) KAR 3268 (SC).
● Error or defects not affecting merits of case, decree not to be reversed, modified or case to be remanded-ILR1996 (1)KAR263.
● STAY;- 1977(2)MYLJ 53. 1981[2] MYLJ 353.
● Limitation for filing cross objection by respondents – ILR 1996 (3) KAR 2257.DB.
● Under the code there could be no appeal against a finding yet "on grounds of justice" an appeal may lie against a finding provided it would operate as resjudicata so as to preclude party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. ILR 1996(2) KAR 1445.
● If respondent intends to challenge part of the decree , based on certain findings, cross objections has to be filed but it is open to respondent to support decree by showing that a particular finding should not have been recorded can do so by not filing objections: ILR 1996 (2) KAR 1321.
● First appeal & second appeal-matters to be dealt with- ILR 2001 (3) KAR 3385 SC.
● At admission stage only appellant side has to be heard. ILR 1997 (2) KAR 1291. DB.
● O41 R27:- Suit for permanent INJ Decreed exparte. In first appeal, the defendant sought to produce two documents to show that possession was taken over from the plaintiff long back. Supreme Court allowed the application for additional Evidence ILR 1997 (4) KAR 3119.SC. ILR 1998 (1) KAR 331.SC. ILR 1998 (2) KAR 1206.
● Suit itself dismissed instead of appeal in appeallate court – ILR 1998 (1) KAR 916.
● Account books marked, relevant entries were not marked,- application at appeal stage to produce evidence- application not allowed.- ILR 2002 (1) KAR 1471.
● O41 R27:- Insurance company filed IA to produce policy in appeal- Rejected. ILR 1998 (3) KAR 2073.
●
ORDER 43 & RULES :-
● Appeal lies as against the order of dismissal of application for restoration of a dismissed suit & not revision. ILR 2000 [1] KAR SN4.
● Exparte injuction order can be challenged by filing appeal or by approaching the same court for vaction ILR2001 KAR 1[SC].
● Order either approving or directing alteration in the draft of the document or the transfer deed are appealable and the party aggrieved can file an appeal from that order. If no appeal is filed such order becomes final.ILR 1996 (2) KAR 1552.
● Suit dismissed for non payment of addl court fee- appeal maintainable –ILR 1996(4)KAR 3403.
●
ORDER 47 & RULES:-SECTION 115:-
● Review powers of HRC Court- No powers - ILR 1992 [2] KAR 1706,ILR 1987 [1] KAR 715, ILR 1993 [2] KAR 1120.
● AIR1966SC153,AIR1968SC439, AIR1963SC698, AIR1964SC1336,1341. AIR1965SC553&1585, AIR1968RAJ237, AIR1968DEL181/188,AIR1970PUN451,
● When subordinate court decides the matter before it ignoring the ruling of High Courts, which is binding on it it acts in excess of its jurisdiction ,High Court can interfere 1965[2] MYLJ 598. ● AIR 1953 SC23, 1964[2] MYLJ SC 36, AIR 1966 SC 153&439,
● Ground of total misreading of admitted material or record -Application should be supported with an affidavit AIR 1994 CAL 165.
● Passed by second appellate court - cannot be reviewed on the ground that discovery of new evidence on question of fact- AIR 1993 DEL85. ILR 1995[4]KAR 3420.
● SEC 115:- & O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert & holding that process server has forged the signature of the defendants.High court cannot interfere with the finding as it amounts to weighing the evidence which is impermissible under section 115. ILR 2001(1) KAR 1391.(SC).
● Existence of alternative remedy not bar in giving relief in review petition, ILR 1995 (4) KAR 3389.
● Erroneous decision on questions of law or fact affecting jurisdiction open to revision- ILR 1996(1)KAR 753.
● SEC 115;-Revision lies against 'case decided'- affidavit of one party sought to be produced in evidence its rejection is ' case decided' ILR 1996(1) KAR 1957&1808.
● Question of suppression of material fact is a mixed question of fact & law ,Revisional court is not the proper forum for agitating the point - AIR 1995 CAL 113.
● Where it is shown that orders are obtained by playing fraud , the court gets jurisdiction to go beyond the limits permissible under law to review a judgment – ILR 2001 (3) KAR 3532.
● When court exercise its discretion by application of its mind to the peculiar facts & nature of dispute- the same cannot be interfered in revision. ILR 2001 (3) KAR 3604.
● REVIEW can be if it is shown that new material is discovered or where there is an error apparent on the face of the record. ILR 1997 (3) KAR 1824.[HINDU SUCCESSION ACT]
● ILR 1997 (2) KAR 808.
● Claims tribunal is not civil court for section 115 –ILR 1998 (4) KAR 3733.
●
CASE LAW ON MUZRAI INSTITUTIONS & TRUSTS
In Baba Charan Dass Udhasi v Mahant Basant Das Babaji Chela Babn Laxmandas Udasi Sadhu, AIR 2000 SC 2610 , it was held that the mode of managing a religious or charitable institution should be ascertained from the document or instrument by which it had been established.
ABOLITION OF HEREDITARY RIGHTS
The abolition of hereditary trustees and hereditary rights of archakas and office holders, had been upheld by the Apex Court in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023 : (1996)2 SCC 498; And also in . Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765
RIGHTS AND DUTIES OF MAHANT
In Lakshamana Yatendrulu and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1414 : (1996)8 SCC 705, the status, rights and duties of Mahant or Mathadhipathi were discussed. See also Kakinada Annadana Samajam v Commissioner of Hindu Religious and Charitable Endowments, Hyderabad and Others, (1970)3 SCC 359; & Sudhindra Thirtha Swamiar and Others v The Commissioner for Hindu Religious and Charitable Endowments, Mysore and Another, AIR 1963 SC 966. In Shrimad Sudhindra Thirtha Swamy v Sri Kasi Math Samsthan, Tirumala, 2001(6) ALT 329, it was observed at 331: "Math in fact has been the most important institution relating to Hindu religious system. The word "matha" is defined as of an ascetic or student, a monastic school or college and "Matadhipathi" is defined as the head of such institution."
SCHEME
In T. Lakshmikumara Thathachariar v The Commissioner, Hindu Religious and Charitable Endowments and Others, AIR 1998 SC 3252 : (1998)6 SCC 643 : 1998(7) Supreme 135, the power of modification or cancellation of Scheme under Tamil Nadu Act was dealt with.
PRIVATE TEMPLE BY PASSAGE OF TIME MAY BECOME PUBLIC TEMPLE
In Teki Venkata Ratnam and Others v Deputy Commissioner, Endowment and Others, AIR 2001 SC 2436 : (2001)7 SCC 106, it was held that a private temple may become public temple in due course of time.
APPOINTMENT OF PUJARI
In Adhithyan v Travancore Devaswom Board, 2002 AIR SCW 4146, it was held that a person well versed, properly trained and qualified to perform pooja in the manner appropriate to worship a particular deity, can be appointed as pujari and need not be a Brahman by birth or pedigree.
ELEPHANT IN TEMPLE AND DISPUTE BETWEEN TWO SECTS
In R. Jhathadesika Thathachariar v K.V. Alagai Manavala, 1995 Supp. (4) SCC 563, where the dispute arose in temple of Sri Devarajaswami relating to painting of forehead of temple elephant with distinctive mark of Jhengalai Sect or Vadagalai Sect and the elephant died during the pendency of the matter the Apex Court permitted both the sects to provide one elephant painted with their respective distinctive marks to lead the procession, elephant of Jengalai Sect to be followed by elephant of Vadagalai Sect.
ARCHAKATVAM
IN HIS HOLINESS SRIMAD PERARULALA ETHIRAJA RAMANUJA JEEYAR SWAMI V STATE OF TAMIL NADU, AIR 1972 SC 1586, THE APEX COURT OBSERVED THAT THE APPOINTMENT OF ARCHAKA IS A SECULAR ACT. IN ANNAIAH TANTRI V AMMAKKA, ILR 41 MAD. 886, THE INCIDENTS OF ARCHAKATVAM SERVICE HAD BEEN DEALT WITH IN DETAIL. FOR ARCHAKAS AND THEIR RIGHTS, SEE NAR HARI SHASTRI AND OTHERS V SHRI BADRINATH TEMPLE COMMITTEE, AIR 1952 SC 245; JAGANNATH V SATYA NARAN, AIR 1973 RAJ. 13; GURUVAYUR DEVASWOM TRUSTEES, T.M. KRISHNAN NAMBUDIRIPAD AND ANOTHER V KUTTIKRISHNA MENON, AIR 1956 MAD. 3H8; RARNANATHA GURUKKUL V ARUNACHALAM CHT'TTIAR, ILR 1940 MAD. 825; VEERBASAVARADHYA AND OTHERS V DEVOTEES OF LINGADAGUDI MUTT AND OTHERS, AIR 1973 MYS. 280; SRI VEDAGIRI LAKSHMI NARASIMHA SWAMI TEMPLE V INDURU PAITABHIRAMI REDDI, AIR 1967 SC 781; SECRETARY OF STATE V MASK AND COMPANY, AIR 1940 PC 105; SESHADRI AIYANGAR V RANGA BHATTAR, (1912) ILR 35 MAD. 631; JAGANNATHA ACHARIAR V SEENU BHATTACHARIAR, ILR 42 MAD. 618; BADRINATH V PUNAM, AIR 1973 J&K 7; SESHANATH V PREM CLUB, AIR 1972 ALL. 324; VENKATADRI V SESHACHARYULU A. PUJARI, 1947(1) MLJ 287. A PUJARI NEED NOT BE BRAHMAN BY BIRTH OR PEDIGREE. — ADITHYAN V TRAVANCARE DEVASWOM BOARD, 2002 AIR SCW 4146.
HERIDITARY OFFICE HOLDER AND HERIDITARY TRUSTEE
See Angurbala Muttick v Debabrata Mullick, 1951 SCR 1125; Kalipada Chakraborti and Another v Smt. Palani Bala Devi and Others, AIR 1953 SC 125; M. Ranwppa v Sangappa and Others, AIR 1958 SC 937; Bapatla Venkata Subba Rao v Sikharam Ramakrishna Rao and Another, AIR 1958 AP 322; Ramanatham Chetty v Murugappa Chetty, 24 Mad. 283, Vfnkataraman v LA. Thangappa Gounder, AIR 1972 Mad. 119. Abolition of heriditary rights of archakas etc., and heriditary trustees under Andhra Pradesh Act 30 of 1987 had been dealt with in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023; A.S. Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 : (1996)9 SCC
HINDU AND HINDUISM
K. Eranna and Others v Commissioner for Hindu Religious and Charitable endowments. Bangalore and Others, AIR 1970 Mys. 191 : 1970(1) Mys. L.J. 170; lemmal Nadar (dead) by LRs v Ponnuswami, (1970)1 SCC 605; AIR 1963 SC 1638; Nagu Reddiar and Others v Banu Redder and Others, (1978)2 SCC 591; Ramalinga Chetty v Shiva Chidambaram, ILR 42 Mad. 440.
TEMPLE
The temple includes a Mandira, Samadhi, Brindavana, Gaddige, Shrine, Sub-Shrine, Utsava Mantapa, Tank or other necessary appurtenances, structures and land, However it does not include a temple which is an inseparable integral part of the composite institution consisting of institutions other than a temple. For temple see Commissioner of Income-tax, Calcutta v Smt. Kokila Devi and Others, (1970)2 SCC 10; Pt. Ram Chandra Shukla v Shree Mahadeoji Mahabirji and Hazrat All Kanpur and Others, (1969)3 SCC 700; Sarat Chandra Bhattacharjee v Rabindra Nath Ghosh and Others, AIR 1957 Cal. 11; Gurpur Guni Venkataraya Narasimha Prabhu and Others v B.C. Achia, Assistant Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Another, AIR 1977 SC 1192 : ARC Association v CIT, (1971)3 SCC 475; Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255. A private temple may become public temple by passage of time.— Teki Venkataratnam and Others v Deputy Commissioner, Endowments and Others, AIR 2001 SC 2436 : A place in order to be a temple must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. — Bala Shankar Maha Shankar Bhattjee and Others v Charity Commissioner, Gujarat State, AIR 1995 SC 167.
USAGE IN DEROGATION OF LAW
In N. Adithyan v The Travancore Deuaswom Board, 2002 AIR SCW 4146, it was held that any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament and no usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the Country.
VAISHNAVITES
In Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu v Prathivathi Bhayankaram Venkatacharlu and Others, AIR 1947 PC 53, it was held that in Vaishnavite temples of Tirumalai and Tirupathi, the Iyyengar is entitled to conduct the worship exclusively in Jengalai order. See Srinivasa Thattachariar v Srinivasa Aiyangar, (99)9 MLJ 355 and M. Appadomi Ayyangar and Others v P.B. Annangarachariar and Others, AIR 1939 Mad. 102.
Shaivites exclusive right to conduct worship and manage Kashi Viswanatha temple was repelled by Apex Court in Sri Adi Vishweshwara of Kashi Viswanatha temple. — Varnasi v Stale of Uttar Pradesh, (1997)4 SCC 606.
RELIGIOUS PRACTICE
A.S. Narayana Deekshithulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 :
Seshammal v State of Tamil Nadu, (1972)3 SCR 815; Tilkayat Shri Govindlalji Maharaj v State of Rajasthan and Others, AIR 1963 SC 1638 : Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255 : Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 : Sri Adi Visheshwara of Kashi Vishwanath Temple v State of Uttar Pradesh, (1997)4 SCC 606; Bhuninath v State of Jammu and Kashmir, (1997)2 SCC 745, Mannalal Khetan v Kedar Nath Khetan and Others AIR 1977 SC 536.
KARNATAKA ACT OF 1997
The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 came into force from 1-5-2003 and Section 78 thereof is the repeal and savings clause. The said section provides that Section 6 of Karnataka General Clauses Act, 1899 (Karnataka Act IE of 1899) shall be applicable in respect of the repeal of the said enactment and Sections 8 and 24 of the said Act shall be applicable as if the said enactments are repealed and re-enacted by this Act. .... Section 24 of the Karnataka General Clauses Act is very clear that where an order is issued under the enactments repealed and re-enacted, it shall continue in force if the same is not inconsistent with the provisions re-enacted. or superseded by any order issued under the provisions so re-enacted. .... Inconsistency or repugnancy is shown in the earlier order of the Commissioner dated 25-8-2001, appointing 12 persons for a period of 3 years as Trustees of Sri Someswara Swamy Temple, Utsoor, Bangalore. The right which has already accrued and the existing right cannot be taken away even though they have not worked. The earlier order cannot be set aside without affording any opportunity to parties to be affected. . . . The order dated 30-4-2002 has been passed on the basis of note of the Government and for no reason there should be reasons available on the record. No opportunity was given to the appellants before cancelling the order and the order dated 25-8-2001 was cancelled based on some alleged irregularities. — V, Ramakrishna and Another v State of Karnataka and Others, 2003(5) Kar. L.J. 417 (DB).
BOMBAY PUBLIC TRUSTS ACT
TRUSTEES
Definition of expression 'person having interest' in the section wide enough to include not merely the beneficiaries of the temple, math, wakf etc., but also the trustees. — Shree Gollaleswar Dev v Gangaiuwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).
POWER OF COURT TO EXERCISE JURISDICTION TO APPOINT TRUSTEES.
The Court can exercise the power when there is a shortfall or the minimum number is reduced to fill up such vacancy so as to bring up the number of the minimum. — Shesh Venkataraman jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044
PERSON ENTITLED TO ATTEND WORSHIP
A Hindu who resides 50 miles away from the temple and occasionally goes to the temple and offers worship is not a person having interest in the temple within Section 50 of the Bombay Public Trusts Act. Section 2(10) of the Act gives extended meaning to the word 'interest' and covers a field much wider than that covered by Section 92, CPC. Even under Section 2(10) of the Bombay Act, the expression "entitled to attend worship or service" indicates that the person must have a title to attend worship or service and connotes something more than a mere right of worship. Having regard to the object of the section as well as the scheme in the Act, a person interested must have a real interest in the temple in question and he must be in some manner connected with the temple. Pending appeal against a suit filed under Section 50 of the Bombay Public Trusts Act where the plaintiffs are held to have no interest in the temple within the meaning of that section, the proceedings cannot be validated by adding the Charity Commissioner as a co-plaintiff. M. Vasudeva Rao v Subraya Parameshwar Hebbar, ILR 1967 Mys. 453 : 1967(1) Mys. LJ. 225.
WORSHIP OF FAMILY IDOL AND FEEDING AS PART THEREOF — IF PUBLIC TRUST
A provision in a partition decree provided that the income from the property set apart for religious purposes should be utilised for taking the family God annually to the temple at Srisaila on the occasion of the annual Abhishekam ceremony in that temple and that after the family God was brought back to the family house, there should be a feeding of the Jangamas who belonged to a holy order. Held, that the main and dominant purpose of the provision was the ritual connected with the worship of the family idol and did not involve any public trust. The provision for feeding was ancillary to the main object of the trust and did not create any independent trust or charity. A religious or charitable endowment becomes a public trust only if it is for a public purpose. — Rudrappa Channamallappa Patil v Kadeppa Dareppa, AIR 1967 Mys. 239.
TEMPLE - TRUST - PRIVATE OR PUBLIC
The real test to be applied in deciding whether a temple is a public trust or not is as to whether members of the public or a section thereof are entitled to enter the temple and offer worship therein as a matter of right or whether they do so as a matter of express or implied leave or licence of the owners of the temple, The circumstance that offerings are received from the public who are interested in the temple is not decisive. Where the oral evidence was to the effect that this temple was located on a site belonging to a private person, that only certain five specified families were managing the temple and meeting the expenses thereof, that neither the public nor even the (Gowd. Saraswath) community (which forms a section of the public) could worship at the temple as of right and that only the members of the five specified families had the right to worship in the temple, Held, the temple was a private one. The circumstances that the temple committee constituted under the Religious Endowments Act, 1863 had been appointing trustees and moktesars of the temple, that the temple had been receiving a tasdik and that the devotees of the temple are now spread over 300 families which were branches of the original five families who established the temple, were not sufficient to rebut the evidence that the temple was a private one. — State of Mysore v Madhhv Vitobha, 1975(1) Kar. L.J. Jr. 29 Sh. N. 107.
The Civil Court is not competent to decide the questions whether or not a trust exists and such trust is a public trust or particular property is a property of public trust. As one of the issues involved in the suit is as to whether the chariot in question is the property of the public trust, the question can be decided only by the Deputy or Assistant Charity Commissioner. There is no provision contained in the Act, enabling Civil Court to refer such an issue to the Deputy or Assistant Charity Commissioner. Therefore, it is not competent to refer such question to the Commissioner under the Act. The proper course to adopt in such a case is to stay the suit to enable the plaintiff or defendants, as the case may be to make an appropriate application before the Deputy or Assistant Charity Commissioner to decide as to whether the property which is claimed to be the property of public trust in the suit is or is not, the public trust property and produce the decision of the Deputy or Assistant Charity Commissioner in the suit, thereafter proceed with the suit in accordance with law. — Katikadeui ofShirasangi and Others v S.S. Maharaj and Others, 1985(2) Kar. L.J. 327 : ILR 1985 Kar. 2647 : AIR 1986 Kant. 186.
POWER TO SUPERINTEND THE 'ADMINISTRATION'
The power to superintend the 'Administration' is wide enough to include within it the power to decide whether or not there should be a fee for the performance of sevas in a temple and if so, what should be the fee structure. The argument that the power to fix the fee for sevas vests only in the trustees and that the Charity Commissioner does not enjoy any superintendence or supervision over the exercise of any such power, does not get support from any provision of the Act nor is the same 'patible with the scheme, underlying the same. The Charity Commissioner while discharging his duties and functions under the Act, is entitled to maintain a vigil over the activities of the trustees and take remedial steps wherever the same are found necessary. Inasmuch as the Charity Commissioner in the instant case, modified his earlier order prescribing the seva rates on account of the widespread protest against the hike in the same, he cannot be said to have transgressed the limits of his jurisdiction so as to warrant interference from this Court. . . . From the order it is apparent that not only were representations received from various quarters against the increase in the rates for the performance of sevas, but even the Government had asked the Charity Commissioner to look into the question of reducing the same. The very basis for the issue of the impugned order thus was a general complaint against the new rates prescribed. It is therefore apparent that the reduction was induced by no consideration except that the rates prescribed were excessive. — Shri Saunsthan Mahabaleshwar Deu (by Managing Trustee), Gokarn, Uttara Kannada District v The Charity Commissioner, Belgaum Division, Belgaum and Another, ILR 1997 Kar. 1874.
APPOINTMENT OF SUCCESSOR TO HEAD OF MATH
When it is a matter of appointing a successor to the headship of a math, it is a matter of complexity involving religious practices and principles governing succession to a matadhipathi and the same cannot be acquired with the ordinary mode of succession to an office of trustee as contemplated under Section 19 of Bombay Public Trusts Act, 1950 and the same falls outside its purview. The Act does not provide for a proper procedure for determination of such disputes. Hence the authorities under the Act have no jurisdiction to decide the dispute as to succession of the headship of a math and the mode of succession thereof, ILR 1970 Kar. 1861 (FB), Where after the death of the Swamiji, there has been no successor properly and legally installed, there is no question of registering the name of the successor under Section 22 of the Act. — Shivamurthayya Guru Appaya Swamy v Madiwalappa, 1982(1) Kar. L.J. Sh. N. 41. Dispute as to succession to headship of math — Jurisdiction. The Bombay Public Trusts Act, 1950 was not intended to interfere with the religious matters of public trusts. Its primary purpose is only to ensure proper administration of trust properties. It is not a self-contained code covering all questions pertaining to public trusts. The succession to the office of mahant of a math is a religious matter and is regulated by the practices and customs of the particular math. The matter of such complexity involving religious practices and principles governing succession to a matadhipathi cannot be equated to an ordinary question of mode of succession to the office of a trustee as contemplated under Section 19 of the Act and it falls outside the scope of Section 19. Hence, the authorities under the Act have no jurisdiction to decide a dispute as to succession to the headship of a math and the mode thereof. — Shri Gurugurupadayya Charantayya Adavimath v Chikkayya, 1979(2) Kar. L.J. 53 (FB) : AIR 1979 Kant. 202.
CIVIL COURT JURISDICTION
Where in a suit for declaration of title if one of the defendants raised the contention that the properties were wakf properties, the Civil Court has no jurisdiction to decide that question. — Junnadsaheb Dadesaheb Patiat v Murufsaheb, 1964(1) Mys. L.J. 563.
MANAGEMENT OF TRUST
Management of trust — Changes in — Duty of managers to report changes to Charity Commissioner — Charity Commissioner receiving report of change to make necessary entries in his register after enquiry — Legality or correctness of entries in register can be questioned in appropriate Civil Court by person disputing same — Entries made in register and order passed by Charity Commissioner are valid and lawful and cannot be set aside by Court unless the order is proved to be wrong. Channamalikarjuna Shivacharya Guru Pawadayya Swami Hiremath, Nagathan Taluk, Bijapur District and Others u R.S. Patil and Others, 1996(1) Kar.L.J. 352 (DB).
Defendant 1 was manager of a school. The school was run by the Ideal Education Society which is a registered trust under the Act. Respondents 1 to 3 who were the teaching staff in the said school instituted a suit praying that D-l could not act as manager of the school as he had already been removed from that post on 2-2-1971. They had also prayed for consequential relief of injunction to restrain defendant 1 from acting as manager of the said school. The relief claimed by the plaintiffs being a limited relief as to the right of defendant 1 to continue as manager of the School, which is not a public trust registered under the Act, the Civil Court has power to determine the said question. That is not a question which is required to be decided by the authorities constituted under the Act. — R.D. Pai v Shamsundar Madhavrao, 1975(2) Kar. L.J. Jr. 49 Sh. N. 97.
Section 50 is not an exhaustive provision regulating all suits which may be brought for recovery of property belonging to a public trust and has no higher status than a mere enabling section authorising the Charity Commissioner or two or more persons having an interest in the trust to institute a suit for recovery of property belonging to a public trust. What has been recognised during a long period of time is that a suit for recovery of property belonging to an idol could be brought either by the idol represented by the manager or by the manager himself. There is nothing in Section 50 of the Bombay Public Trusts Act which causes a divestiture of that right, A person who is charged with the administration of a trust such as the manager of a temple is not a person having only 'an interest in the trust'. That expression refers to person who would be prejudiced in some way though not directly if the trust is not administered. A trustee in whom the property vests, although he is subject to obligations annexed to such ownership, is the owner of the property, although to such ownership is annexed an obligation. But that right which he has in the trust property is superior to a mere interest such as that of a worshipper, That would also be the position in the case of the manager of a temple who in a sense is also a trustee although the property belonging to the temple does not vest with him. The ‘person having an interest’ in a public trust is therefore one whose interest is inferior to that of a trustee or manager and it is by reason of the existence of that inferior and smaller interest that Section 50 of the Act like Section 92, CPC authorises the institution of a suit and regulates it in the manner specified in it. But that section does not govern the institution of a suit by a person possessing a larger and a higher interest which is not regulated by it. The expression 'in any case' in Section 50 does not mean that all suits, which may be instituted on behalf of a public trust, should be instituted only by the adoption of the procedure prescribed by Section 50. That section enumerates the suits to which it is applicable and insofar as it concerns itself with the institution of a suit for recovery of property belonging to a public trust, it operates only in respect of a suit 'where a direction is required to recover the possession of such property belonging to the trust'. The meaning of the expression 'direction' used in clause (ii) is no more than that the consent of the Charity Commissioner is necessary only in cases in which the suit is instituted by someone who has only an interest in the trust which falls short of an interest possessed by the idol or the manager or the trustees, as case may be. That is the only way in which it would be possible to give some meaning to the word 'direction' occurring in clause (ii). — Manager Ganapati Ram Naik v Kumtti Shri Venkatranuin Dev, 1964(1) Mys. L.J. 172.
TRUST PROPERTY — SALE OF
Trust property — sale of — Charity Commissioner's powers to impose conditions for — Powers include in itself power to fix minimum price based on market value — Open to Trustee or prospective purchaser to demonstrate that minimum price fixed is unreasonable or arbitrary — Commissioner's order fixing minimum price on basis of location of property and its market value and imposing condition that sale to be effected within six months from date of order — Proper and in interest of trust. It follows that in case the requisite sale deed was not registered within the period granted, the order would lapse for it can hardly be said that the sale consideration once fixed by the Charity Commissioner would hold good for all times to come. — Mahammad Hussain Dabahayatsab Mulla (since deceased) by L.Rs and Others v The. Charity Commissioner, Belgaum and Another, 1996(6) Kar. L.J. 579 A.
FALL SHORT OF THE MINIMUM NUMBER OF TRUSTEES
In the absence of a trust deed or a scheme or a decree of a Court for the administration of the trust, the parties have to establish the required minimum to administer the trust. When a trustee incurs a disqualification, falling within any of the clauses of Section 47(l)((a) to (h) of the Act, automatically there will be a vacancy and if, as a consequence, the existing number of trustees fall short of the minimum number of trustees, then under Section 47(3) of the Act, the Court has the power to fill up the vacancy so as to bring the number to the required minimum. — Shesh Venkataraman Jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044.
The minimum number of trustees spoken of in Section 47(2) of the Act is the minimum required by the instrument, scheme, or order or decree or usage or custom of the trust for the administration of the trust. Unless the existing number is less than the minimum required, the District Judge will have no jurisdiction to appoint a new trustee. — Subbaraya Namyana Bhat v Govinda Ganapathi and Another, 1983(2) Kar. L.J. 521.
OFFICE OF MATADHIPATHI
Scope and requirement — Necessity to frame scheme — Administration suit — Whether necessary to make Math a party and whether there could be scheme for Math for which there is no Matadhipathi — Whether Dichotomy of secular and spiritual functions permissible in office of Matadhipathi, Explained. — Ratnakar, B. Kailaje v Ramrao Narsingrao Divigi, ILR 1987 Kax. 1486 (DB).
SUITS RELATING TO TRUST AND TRUST PROPERTY
Two categories of litigation contemplated in statute — In first category suit is instituted by trustees themselves — Under second category comes suit against trustees or against third parties, instituted by persons who are not trustees but are only persons having interest in trust — Special procedure and requirements laid down in Sections 50 and 51 of Act -are applicable only to suits under second category. There are two distinct categories of litigation which could arise in relation to public trusts. The first of them constitutes cases of the present type where the trustees are required to institute legal action. The second category is in relation to cases that have been referred to in Section 92, Civil Procedure Code whereby the Charity Commissioner or persons interested in the trust who have obtained sanction from him, may institute proceedings against the trust or the trustees or for that matter, against third parties for purposes of safeguarding the interests of the trust. There is no parity between the proceedings instituted by a trustee and those instituted by non-trustees. A special provision has been provided for situations where non-trustees institute litigation and for good reason. Sanction is condition precedent for non-trustees if they were to institute such proceedings, and this would be an unreasonable hurdle and an impracticable situation because it would fetter the enforcement of normal legal action of the trustees if in every legal proceedings they are required to obtain prior sanction from the Charity Commissioner. Suit by trustee for recovering trust property — Civil Court of competent jurisdiction can entertain such suit — Prior permission of Charity Commissioner is not required to be taken by trustee for instituting such suit — No requirement that such suit must be filed only in District Court — These requirements prescribed in Act are for suit by persons who are not trustees but have only interest in trust. As far as the rights of the trustees to institute legal proceedings in any Court of competent jurisdiction is concerned, the Bombay Public Trusts Act does not place any restrictions, fetters or exclusions on them. The trustees are entitled to exercise their normal rights under the law without any such restriction because, those restrictions have been put down only in relation to proceedings instituted by non-trustees. Before the jurisdiction of a particular Civil Court is taken away, that it must be demonstrated that there is an exclusion clause. As far as the Bombay Public Trusts Act is concerned, there is no such bar either direct or implied. It is true that, if suits are to be instituted by a trustee, that he could go to whichever Court has jurisdiction to entertain the dispute, but if a non-trustee is to institute a suit or a Charity Commissioner is to institute a suit, that it would have to go to the District Court. This is a special provision and if a special procedure is prescribed in relation to such situations, it would not lead to any serious anamolies or conflicts because, the two categories of suits are very dissimilar insofar as persons of different status institute them. — Shankar Narayan Giri (Dead) Represented by Lalitakumar Ramanarayan Giri, Trustee of Sri Ramachandra dkv Temple, Haliyal v Kamalabai Venkitesh Deshpande. and Others, 1997(1) Kar. L.J. 518B.
In the case on hand admittedly the plaintiff/appellant wants an injunction retraining the second defendant-Secretary to be removed and for other reliefs consent of Charity Commissioner is necessary. — Workmen of Lokashikshana Trust, Bangalore v Lokashiktihana Trust and its Newspaper Publications, Bangalore, and Other, 2001(3) Kar. L.J. 367.
It is open for anyone interested in a trust to file a suit for a declaration whether or not any property belongs to a public trust after securing the required consent under Section 51 of the Act. Any determination to be made by the Charity Commissioner under Sections 18 to 20 in regard to the nature of the property is intended for the purpose of registration of the trust. If such a question were to be raised in an incidental way after the trust is registered, it is no part of the duty of the Charity Commissioner to enquire into it. The provisions (Sections 17 and 18) as co the bar of jurisdiction of suits are qualified by Section 50. Gurupagouda v Mallanagouda, 1974(1) Kar. L.J. Page. 21 Sh. N. 72.
Where plaintiff and defendant were two brothers performing pooja of a deity and enjoying the devasthan inam lands; and plaintiff filed the suit for an injunction to restrain defendant from obstructing his possession and enjoyment or alternatively for partition and possession of his half share. Held, the suit did not require consent of the Charily Commissioner under Section 51 of the Act. If the reliefs that are sought for in a particular suit between the individuals do not affect the rights of the public at large or of the trust as such, Section 50 will not apply to such a suit. A suit, which is filed admittedly against a co-trustee by an individual, would not attract the provisions of Sections 50 and 51 so as to require the sanction of the Charity Commissioner. Karyappa Pamsappa Pujari v Ramappa, 1963(1) Mys. L.J. 461.
Section 50 provides for institution of suits by the Charity Commissioner or by two or more persons interested in the trust and having obtained the consent in writing of the Charily Commissioner under Section 51 of the Act — Suit for recovery of possession of property against person holding adversely — Held, such suit is within the purview of the Act. — Shree Gollaleshiuar Dev v Gangawwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).
After the addition of the words "proceeds thereof" in Section 50(iii)(a) of the Bombay Public Trusts Act by Act 23 of 1955, no suit could be instituted in regard to the recovery of possession of the proceeds of lands comprised in a public trust without the permission of the Charity Commissioner. The suit which was instituted prior to the amendment was a validly instituted suit and the later amendment would not make the institution of the suit illegal. — Mahadev Yeskuxmt Devulkar v Sitabai, 1962 Mys. L.J. Supp. 285 : ILR 1963 Mys. 132.
The function of the Assistant Charity Commissioner under Section 51 of the Act is very similar to the function of the Advocate General under Section 90 of the CPC, 1908. It is essentially a discretionary power coupled with duty. If the facts recorded as findings are to be interfered with under Article 226 of the Constitution it would create undue hardship to all Tribunals and quasi-judicial authorities who have to determine those facts and arrive at the findings. Therefore, the self-imposed restriction by the High Courts under Article 226 and Article 227 of the Constitution not to act as further Courts of appeal and disturb the findings recorded by the inferior Tribunals. There may be cases where a discretion exercised may be unjust but it is not the High Court which exercises the discretion. If the Charity Commissioner exercised the discretion and gave reasons as to why he has exercised the discretion in a particular manner, the High Court will not interfere with such discretion exercised on further consideration of material placed before the inferior Tribunal or authority. — Gopal Jyotiba Sadare and Another v Ramakrishna Bhimarao Kolekar and Oihers, 1990(3) Kar. L.J. 578.
Under the Bombay Trusts Act, 1950 as in force in the Karnataka State, there is no provision conferring on the Charity Commissioner power to issue an injunction against trustees restraining them from alienating trust properties. — Diwakar R.R. v M.S. Patil, 1975(2) Kar. LJ. 147 : ILR 1975 Kar. 1560.
STAY OF PROCEEDINGS WHEN THERE IS CIVIL SUIT
Where petitioner claiming under a deed of appointment by the predecessor mahant of the math filed an application under Section 22 before the Assistant Charity Commissioner and then filed an appeal against the order to the Charity Commissioner and pending the appeal some disciples of the math filed a civil suit to declare the appointment deed void and the Charity Commissioner stayed the appeal pending disposal of the suit, held, the Charity Commissioner was under a statutory duty to dispose of the appeal, though the decision may be subject to the result of the suit. In staying the appeal the Charity Commissioner had failed to exercise the jurisdiction vested in him. There is no provision under which the appeal could have been stayed. — Gurusiddeshwara Swami Guruchannabasavaswamy Hiremanth v Charity Commissioner, 1974(2) Kar. L.J. Jr. 25 Sh. N. 75.
CHARITY COMMISSIONER
The Commissioner appointed under the Bombay Public Trusts Act is a Corporation sole for all purposes under the Act. Thus, when the charity Commissioner hears an appeal under Section 70 of the Act, he hears it as a Corporation sole. Hence, by reason of Section 109 of the States Reorganisation Act, the Charity Commissioner continued to function and operate in those.areas which have now become part of the new State of Mysore. For the purpose of Section 125 of the States Reorganisation Act, it is not necessary that the corresponding Tribunal or officer should actually be within the State of Mysore. What the section means is that the Tribunal or Officer must be a Tribunal or Officer of the State of Mysore. — Channaviraswami Gum Shivayogi Sivami v M.K, Appajappa, 1960 Mys. L.J. 258 : ILR 1959 Mys. 341.
INSTALLATION OF SWAMI - RIGHTS
A mutt was registered as a public trust by the Assistant Charity Commissioner and respondent 3 was recognised as manager thereof. When later the petitioner was installed as Swami by the disciples of the Mutt, the change was recorded on the application made under Section 22 of the Act. In a revision petition filed by respondent 1 under Section 70-A, the Charity Commissioner set aside the two earlier orders of the Assistant Charity Commissioner specifically challenged, as also the order made in respect of the petitioner under Section 22 of the Act. By virtue of the installation of the petitioner and the subsequent recording of the change, the petitioner would be a person directly concerned with the possession and management of the public trust. Any order, therefore, made affecting the two earlier orders would affect the status of, and possession of the public trust by, the petitioner. He was therefore a party affected within the proviso to Section 70 of the Act. As the petitioner was neither notified nor heard by the Charity Commissioner, The order passed by him was in violation of the statutory obligation imposed on him under Section 7U-A of the Act to give an opportunity to a party affected of being heard. Hence the order of Charity Commissioner cannot be upheld. — H.H. jagadgurn Mummadi Sri Neelakanth Pattadarya v Hampanna Laxmappa Dandi, 1974(1) Kar. L.J.Jr. 109 Sh. N. 264. SEE ALSO 1987(2) Kar. L.J. Sh. N. 155 : ILR 1985 Kar. 636. & 1973(2) Mys. L.J. Sh. N. 129.
REVISION BY CHARITY COMMISSIONER AND APPEAL TO DISTRICT JUDGE
When the Commissioner has exercised his power of revision under Section 70-A of the Act, more so finally, an application by any other person aggrieved-by the order of the Commissioner is maintainable before the District Judge under Section 72. In order to attract Section 72 of the Act by any person aggrieved all that is necessary is that there is a decision by the Commissioner on a revision petition presented before him under Section 7U-A of the Act. In receiving additional evidence under Section 72(1-A) (which is analogous to Order 41, Rule 27, CPC) the District Judge must find that any of the circumstances existed for reception of the additional evidence and that the additional evidence was necessary for pronouncing judgment. He should also give opportunity to the other side to place rebuttal evidence.There is no period of limitation prescribed for aggrieved persons to approach the revisional authority under Section 70-A of the Act. But the power of revision even in the absence of a period of limitation prescribed by the relevant statute, is to be exercised by the appropriate revising authority within a reasonable time and any unreasonable delay in the exercise of the power of revision will affect the validity of the order of the revising authority. As to what is a reasonable time depends upon the facts and circumstances of each case. — Shivappa Veerappa Masnr v jagadguru Mallikarjuna Murugarajendra Swamiji, 1978(1) Kar. L.J. 479.
On being moved by appellant and certain others under Section 18, Bombay Public Trusts Act, the Assistant Charity Commissioner, Belgaum, made an order declaring certain Dargas to be public trust under the Act and further declaring certain properties to be those belonging to the said public trust. Respondents applied to the Charity Commissioner under Section 70-A of the Act to set aside the findings of the Assistant Charity Commissioner. The Charity Commissioner set aside the order and the proceedings of the Assistant Charity Commissioner and remanded the same to him for fresh disposal after giving opportunity to the parties interested to state their objections, if any. An application to the District Judge under Section 72(1) against the order of the Charity Commissioner was not maintainable. Any or every finding falling within the scope of Sections 2U, 70 and 70-A cannot be called in question under Section 72(1). From the enumeration of particulars in Section 19, it is clear that these are only some of the many questions which may be the subject of a finding or order by an Assistant or Deputy Charity Commissioner under Section 20. Whereas a finding in respect of any one of those many questions is open to appeal under Section 70 or revision under Section 70-A, Section 72(1) obviously purports to limit the scope of an application to a Court. Further, the effect of the Commissioner's order is that the whole matter is reopened for a fresh decision. There is no decision in the sense of an adjudication or a statement of a final opinion by him to the effect that the properties are trust properties or that they are not such properties. — Sayyad Sultan v Abul Aziz Saheb, 1964(1) Mys. LJ. 565. ( OVERRULED BY ILR 1990 Kar. 3069 (FB).)
Dismissal for non-prosecution of appeal before District Judge whether permissible - Whether appeal against such an order maintainable. Held: A decision referred to in Section 72(4) means an adjudication QT..3-statement of a final opinion, especially so when sub-section itself makes it clear that it should be a decision of the Court under sub-section (2) which speaks of enquiry and recording of evidence, hearing of argument and pronouncing judgment. No appeal lies against an order dismissing an application for non-prosecution passed in an application under Section 72 of the Act. — Mallikarjunayya and Others v State of Karnataka, 1984(1) Kar. L.J. 89.
DECISION AS TO TITLE TO TRUST PROPERTY
Reading Sections 79 and 80 in conjunction with Section 19 of the Act, one of the powers specifically conferred under the Act upon the Deputy or Assistant Charity Commissioner is to find out whether any property is the property of the public trust in question and the jurisdiction of the Civil Court is ousted to that extent expressly under Section 80 of the Act. Adhishaiah Kadayya Kadadevaru v Dundayya Gum Shiddayya Hiremath, 1982(1) Kar. LJ. 402 : AIR 1983 Kant. 79 : ILR 1982 Kar. 555.
All that Sections 79 and 80 provide for are when a question arises as to the existence of a trust or its public nature or whether any property belongs to it such questions cannot be decided by the Civil Court but only by the authorities under the Act subject to application under Section 72(1) to be decided by the Civil Court and a further appeal to the High Court. That does not militate against the specific power conferred upon the authorities under Section 72 of the Act. Section 70 clearly enumerates the serious matters on which an appeal could be filed. Section 70-A enumerates the power that can be exercised by the Charity Commissioner in an appeal filed under Section 70 of the Act. It empowers him to call for and examine the records and proceedings of such a case for the purpose of satisfying himself as to the correctness of the finding recorded or order passed and may annul, reverse, modify such finding or order with the further power of holding an enquiry or taking additional evidence as may be necessary. And such an order is made subject-matter of an application under Section 72(1) of the Act. Shivalingappa Murigeppa Kadi v Shivayogttppa, ILR 1990 Kar. 3069 (FB).
MADRAS CHARITABLE AND ENDOWMENTS ACT 1926
MANJUNATHA TEMPLE AT DHARMASTHALA
The Manjunatha Temple at Dharmasthala is part and parcel of the composite institution known as Dharmasthala and is so inseparably connected with it that it is its integral part. It cannot therefore be held that the Manjunatha Temple is an endowment within the meaning of Section 9(11) of the Act, as it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith; or that it has any such premises of its own as could be said to form its own endowment. The effect of Section 2 of the Madras HRE Act, 1926 is to exclude not only private religious endowments but also Jain religious endowments. The Act is confined to Hindu religious endowments and will not be applicable where there is no such endowments at all. By virtue of Section 2, the Act applies only, to Hindu public religious endowments. Dedication to a deity necessarily implies cessation of individual ownership. A place of worship which is open to both Jains and Hindus in general or has a mixed character would be a temple within Section 9(12) of the Act. — Commissioner for HRCE v Ratnavarma Heggade, AIR 1977 SC 1846.
SUIT WAS FOR A DECLARATION THAT THE TEMPLE BELONGED EXCLUSIVELY TO
The suit was for a declaration that the temple belonged exclusively to Charodi Community of Mangalore and therefore the State and the Area Committee had no right to appoint trustees and enforce the provisions of Sections 31, 39, 41, 42, 44 and 76(5) of the Madras Act, 1951 and for possession of the 'A' Schedule properties in the possession of defendant 3 who had mismanaged the affairs of the temple. The suit was filed by the President of Charodi Abhyudaya Sangha of the Charodi Community. Held, (1) that the inscription on the stone slab in the garbha gudi of the temple etc the effect "Temple belonging to Charodi People" was the most important circumstance or piece of evidence in the case which clearly indicated that the temple belonged exclusively to the members of the Charodi Community. Merely because brahmins were employed for performing pooja and other religious ceremonies in the temple, it did not necessarily follow that the temple was not one exclusively belonging to the Charodi Community. As the temple was a denominational temple, defendants 1 and 2 were not entitled to enforce the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act inasmuch as all those provisions had been struck down by the High Court in Mukundaraya v State. 1959 Mys. L.J. 708. (2) Since the Charodi Abhyudaya Sangha was an association of the members of the Charodi Community and the suit was filed under Order 1, Rule 8, Civil Procedure Code by the President of the Sangha who was admittedly a member of the Charodi Community, the suit was maintainable. (3) A dispute of the type in the suit which was for restraining the defendants from enforcing the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act struck down by the High Court would not come within the ambit of Section 57 of the Act. The decree for possession passed by the lower Court against all the defendants was not proper. The decree for possession should be only against defendant 3 alleged to be in possession of the property. — State of Mysore v Charodi Abyudaya Sangha, 1972(1) Mys. L.J. 431.
GOVERNMENT HAS TO DECIDE TO APPLY ACT
The Madras Hindu Religious and Charitable Endowments Act, 1951 does not of its own force apply to Hindu Charitable Endowments. Its provisions have to be extended by following the procedure prescribed by Section 3. Where the institution in question is claimed not to be a Hindu public charitable endowment within the meaning of the Act, the Government should decide the dispute before proceeding to take action and they cannot take action on the assumption that they have jurisdiction, relegating the claimant to take such steps as he is advised to get rid of that decision. The existence of the fact that the institution in respect of which the Government propose to take action is a charitable endowment within the meaning of the Act is the very foundation of the Government's jurisdiction. All matters of disputes in any manner relating to the exercise of the Government's power under Section 3 have to be decided by the government itself. Maji Thimmanna Bhat v State of Mysore 1959 Mys.L.J. 109.
TEMPLE
Order passed by Deputy Commissioner declaring institution as — Direction to institution to submit accounts and pay contributions to Board — Suit for declaration that institution is not "temple" coming within purview of Act and that order of Deputy Commissioner is nullity — Held, order of Deputy Commissioner, though erroneous, is binding and conclusive until it is set aside in appeal or revision — Since no appeal or revision was preferred against order, same has attained finality and is enforceable — Suit, held, is not maintainable. H.M. Basamma (deceased) by LRs v The Commissioner of Hindu Religious and Charitable Endowments, Bangalore and Another, 2002(4; Kar. L.J. 535.
PUBLIC TEMPLE - TESTS TO DETERMINE
A denominational or sectional temple belonging to a particular community, which is not a private temple, is a temple within the definition in Section 6(17) of Madras Act. In examining whether a temple is dedicated for the benefit of all the members of the Hindu community, the important consideration is, who is the beneficiary of the dedication. It is the worshipper who is the beneficiary. If the members of the Hindu community in general have offered worship in the temple for a considerable period of time, without anybody's permission and without any prevention, it would be reasonable to infer that the temple was dedicated for the benefit of or the use of the Hindu community in general. That the members of one community have some special privileges or that only members of the community took part in certain rituals or functions may not be inconsistent with the right of the Hindu community in general having a right of worship in the temple. — B.C. Achia, Assistant Commissioner, HR and CE v Gurupur Gum Venkataraya Narasimha Prabhu, 1966(1) Mys. L.J. 519.
TEMPLE, PRIVATE OR PUBLIC
The temple was an ancient temple founded about 40 years ago. The temple was founded by 37 Goud Saraswat Brahmin families of Gurpur. The trustees managing the temple belonged always to the members of the said community, the landed properties owned by the temple had all been endowed by members of this community and there was no reliable evidence of endowment of any immovable property by any person outside the community. Held, the temple (known as Varadaraj Venkataramana Temple at Gurpur in Mangalore Taluk, S.K. Dist.) was not a public temple, but a temple belonging to the Goud Saraswal Brahmin Community of Gurpur. The circumstances disclosed in evidence in this case did not support the inference that Hindus generally used the temple as a place of worship as of right. — Gurpur Guni Venkataraya v Achia B.C.,ILR 1977 Kar. 685 (SC): AIR 1977 SC 1192.
A LAW WHICH TAKES AWAY THE RIGHT OF ADMINISTRATION FROM THE HANDS OF A RELIGIOUS DENOMINATION ALTOGETHER AND VESTS IT IN ANY OTHER AUTHORITY WOULD AMOUNT TO VIOLATION OF RIGHT GUARANTEED UNDER ARTICLE 26 OF THE CONSTITUTION.
Sections 398, 41, 42 and 44 of the Madras Hindu Religious and Charitable Endowments Act are ultra vires as being violative of Article 26 of the Constitution as the effect of these sections is to take away altogether the right of the denomination to manage their institutions. Sections 18, 45(3), 50, 71(4) and 103(e)(ii) are valid. Sub-section (3) of Section 45 in conferring power to appoint a trustee temporarily merely imposes a reasonable restriction and is therefore, valid. Section 103(e)(ii) is not ultra vires as it does not transfer the power of the denomination to the Area Committee. The effect of Section 18 is to impose a reasonable restriction upon the right of administration by the denomination and not to take away altogether the said right and is valid. Section 50 also imposes a reasonable restriction on the power of management by the denomination and is valid. Section 71(4) providing for appointment of auditors for scrutinising the accounts is not violative of Article 26. Section 76(5) empowering making of grants out of surplus funds to other institutions is invalid being ultra vires of the powers of the Legislature. The levy under Section 76 is a fee and the imposition should be commensurate with the services to be rendered and the expenses (hereof, so that there may not be any surplus. Further,-the surplus, if any, cannot be diverted for any purpose other than the purpose of defraying the expenses of such services however laudable the said purpose may be. It cannot be said that a percentage of income as the basis on which the right of contribution has been fixed under Rule 1 framed under Section 76(1) of the Act is unreasonable. — K. Mukundaraya Shenoy v State of Mysore, AIR 1960 Mys. 18 : ILR 1959 Mys. 815.
APPOINTMENT OF ADMINISTRATORS
The power conferred by Section 20 is the power of superintendence and control of the temple and does not include the power to appoint an administrator. — Veerabasappa v Commissioner. H.R.C.E., 1974(2) Kar. L.J. Jr. 71 Sh. N. 266. Appointment of Administrator to perform the functions and discharge the duties of the Board of Trustees of a Temple — Proper person, who is Manager/Executive Officer of a Temple who is required to function under the Board of Trustees — Held, not proper to be appointed as an Administrator. Power of Superintendence not confined to any particular subject or matter relating administration of Religious Endowments — Open to commissioner to pass such orders as are necessary to ensure that endowments are properly administered and their income is duly appropriated — In a given case where the situation demands that administration of Religious institution cannot be safely left in the hands of the Trustees whose term has expired, and at the same it is not possible to constitute a new Board of Trustees, it is open to Commissioner to appoint an Administrator — Explained — Case-law discussed. — B.L Tarali v Kenya Ravindranath Shetty and Others, ILR 1990 Kar. 1114 (DB).
APPOINTMENT OF TRUSTEES
Appointment of trustees to Mali Mahadeshwaraswamy Temple — Legality — On facts, appointments upheld. — B. Madappa and Another v Commissioner for Religious and Charitable Endowment and Others, 1987(3) Kar. L.J. 238.
In this case, admittedly there is no scheme governing the temple in the matter of its administration. Convention is to have elected Trustees including a Managing Trustee. If an election is not properly conducted, the right of the denomination to administer the institution through the elected Trustees will get frustrated. Therefore, the Commissioner has the power and duty to examine whether the Trustees are properly elected. He can issue appropriate order, direction or instruction to regulate the election. He may evolve a proper procedure to conduct the election. He may observe whether all eligible voters has a proper opportunity to participate in the election. Such a power flows from his power of superintendence and control over the administration of the endowment in question. — Sri Ananteshwara and Chandra Mouleshwara Temple v Deputy Commissioner for Hindu Religious and Charitable Endowments, Dakshina Kannada, Mangalore, 1990(1) Kar. L.J. Sh. N. 15 : AIR 1989 Kant 57.
MADRAS HIGH COURT DECLARING SEVERAL SECTIONS AS ULTRA VIRES
In W.P. No. 668 of 1951, the Madras High Court held certain sections of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951) to be ultra vires, and issued a mandamus directing the State Government from enforcing any of the said provisions of the Act against the petitioners. By amending Act 27 of 1954 some of the sections impugned by the Madras High Court were amended. The sections held ultra vires by the Madras High Court, inter alia were, Sections 20, 21, 30(2), 31, 63 to 69, 76 and 89. Petitioners challenged the said Amending Act 27 of 1954. Held, that substantial changes had not been effected by the Amendment in Sections 21, 30{2), 31, 63 to 69 and 89 of the Act and therefore the mandamus issued by the Madras High Court continued to be operative so far as those sections were concerned. But the amendment of Section 76 levying a fee for services rendered is valid and enforceable. It would not be correct to say that as a result of the decision of the Madras High Court in W.P. No. 668 of 1951 and in particular as a result of Section 20 being declared invalid the State is disabled from rendering any service and as there is no service to be rendered fees imposed by Section 76 of the Act cannot be charged. There are other sections of the Act which have not been touched by the Madras High Court in W.P. No. 668 of 1951 and in view of those sections, there are still services to be rendered by the State under the Act for which the fee in question can be levied. They are Sections 25,27, 45, 46, 51 and 72. — Devaraja Shenoy v State of Madras, 1960 Mys. L.J. 245: ILR 1959 Mys. 365.
NON HINDU AS A TRUSTEE OF HINDU TEMPLE
Founder is a person providing the original endowment, but the persons who subsequent to the foundation furnish some additional contributions do not thereby become founders. Under Section 22 of the Act there is a legal prohibition for a non-Hindu (Jain) to hold office of a trustee of a Hindu temple. Simply because a non-Hindu was acting as a trustee for a long period, he is not entitled to continue as a trustee. In order that a temple may be a composite one, it must be open to devotees of all religions, it is conceivable that there might be temples which are composite in nature; that depends upon the founder's universal outlook on life; he might, while founding the institution, keep it open to the devotees of all religions. But because some devotees of other religions go to a temple which is exclusively for Hindus, that temple would not become a composite one.
Parties should not be permitted to make out altogether a new case for the first time in the Appellate Court to the prejudice of the opposite party. —Jinnappa Hegde v Srinivasa Tantri, 1962 Mys. L.J. Supp. 109.
SANCTION TO ALIENATION
The sanction that is required under Section 29 of the Madras Hindu Religious and Charitable Endowments Act to an alienation can be obtained either prior to the transaction or subsequent to the same. — K. Govrrdhana Bhat v Venkatramana Temple, 1958 Mys. L.J. 488 : ILR 1958 Mys. 367.
LEASE OF PROPERTY
In the absence of sanction, a permanent lease of property belonging to a religious institution is void under Section 29 of the HR and CE Act. Since the lease is void the provisions of Section 53-A, T.P. Act will not apply. The plaintiff is not estopped from contending that the lease is void by reason of the recitals in the rent receipt, since there can be no estoppel against a statutory provision. Where the landlord accepts rent subsequent to the date of the void lease, the tenant becomes a monthly tenant. Relied on: AIR (1972)1 SCWR 969 and 1962 Mys. LJ. 861 C.P. Rodrigues v Sri Durga Parameswari Temple, 1973(2) Mys. LJ. Sh. N. 300.
BOARD OF TRUSTEES - CONSTITUTION OF
It can be constituted in respect of religious institution over which there is no "Area Committee" and number of persons appointed as trustees must not be less than three and more than five and power to constitute Board rests with Commissioner — Where Commissioner has not passed any order in this regard, order passed by Assistant Commissioner appointing nine persons as trustees held, without authority of law. The impugned order is passed by the 3rd respondent in exercise of purported Rule 17 of the rules of the Department. Learned Additional Government Advocate is unable to produce the rule referred to in the impugned order despite granting time. Therefore, it has to be presumed that the impugned order is without the authority of law. .... .Section 39(1) of the said Act stipulates that in respect of the religious institution over which there is no "Area Committee", the Commissioner shall constitute Board of Trustees consisting of not less than three and not more than five persons. In the instant case, the Commissioner has not passed any order. No material is placed before the Court to show that "Area Committee" was constituted in accordance with the provisions of the Act. It is not the case of the 3rd respondent that he has passed the impugned order exercising the power under Section 39 of the Act. The impugned order is without the authority of law. Sundara Gowda v Commissioner for Religious and Charitable Endowments in Karnataka, Bangalore and Others, 1999(6) Kar. L.J. Sh. N. 14.
TRUSTEES – ADMINISTRATION - ARRANGEMENTS
Any arrangement between the trustees for carrying on the administration of a temple is not a scheme and cannot have the effect of overriding statutory provision regulating the administration of religious institutions. A regulatory statutory provision does not become automatically ineffective, notwithstanding that the temple is a denominational one.
Section 40(2) and Rule 15 enable the Assistant Commissioner to convene a meeting of the trustees of a denominational temple to elect the Chairman. — K. Raghavendra Nayak v State of Mysore, 1974(1) Kar. L.J. 99 : ILR 1974 Kar. 131.
CHAIRMAN OF BOARD OF TRUSTEES CUSTODY OF TEMPLE PROPERTY
The relevant rules recognize only the Chairman of the Board of Trustees, when the Board comprises of more than one trustee, as the only person entitled to the custody of the property of the temple and therefore he alone has the right to apply for the custody of the temple property. It is not in all cases that the trustees as a body must join. To an application seeking merely to secure the custody of the temple property, only those persons who are either entitled to the custody or those who are resisting the same without challenging either the identity of the property or the right of the temple to the same that are necessary parties. A person elected as Chairman of the Board of Trustees of a (denominational) temple under Section 40(2) of the Act read with Rule 16 is the trustee for purposes of Section 87. — Raghavendra Nayak case 1976(2) Kar. LJ. 258 : AIR 1977 Kant- 53 : ILR 1977 Kar. 43.
SCHEME EMPOWERING THE COMMISSIONER
A clause in a scheme empowering the Commissioner to appoint one of the members as managing trustee is in conflict with the Act and is liable to be struck down. Where a clause in the scheme provided that one of the non-hereditary trustees shall be a Brahmin and in the event of the Board appointing more than one non-hereditary trustees, the second shall be a Bunt, held, the scheme did not require that appointments should be made exclusively from Brahmins and Bunts alternatively and the clause did not prohibit the appointment of members of other communities as non-hereditary trustees. — Vasudeva Bhat v Commissioner for HR & CE, 1981(2) Kar. LJ. Sh. N. 28.
BREACH OF TRUST OR MISMANAGEMENT
Where the income from the trust for performing samaradhana in a temple which was a listed institution, was less than Rs. 20,000, the Deputy Commissioner has power to inquire into an application under Section 45 relating to the trust. When the question before the Deputy Commissioner is whether there was a breach of trust or mismanagement, it should not allow the nature of the proceedings to be altered by adding supplemental parties and enquiring at their instance into the question whether the trust was a religious trust within Section 6(14). — Vasudeva Prabhu v Commissioner for Religious Endowments, 1973(2) Mys. LJ. Sh. N. 212.
ORDER OF APPOINTMENT TO OFFICE OF HEREDITARY TRUSTEE OF TEMPLE
Appeal against — Only rival claimant to office who has been dissatisfied with order has right and locus standi to take appeal before Commissioner — Person who is not rival claimant, is stranger, and such person has no right to question appointment — Appeal by such person is incompetent — Order of Appellate Authority disposing of such incompetent appeal is without jurisdiction and liable to be quashed. Every part of statute must be so interpreted as to give meaning to it — Interpretation which makes one section of statute nugatory or otiose must be avoided — Power conferred on Deputy Commissioner to settle dispute regarding rival claims to office of hereditary trustee of temple and to make appointment when vacancy occurs in that office must not be confused with his power to enquire into and decide whether trustee holds or held office as hereditary trustee.
Held: Under Section 47(1), when a permanent vacancy occurs in the office of a hereditary trustee, the next in line of succession to the last holder of office is entitled to succeed to the office. In case there is a dispute as to who should succeed to the office, the same has to be inquired and decided by the Deputy Commissioner under Section 47(3) of the Act. The person aggrieved by the order under Section 47 has a right of appeal to the Commissioner. .... The person who has a right of appeal is one who is dissatisfied with an order passed under Section 47(3) i.e., to say, "a rival claimant to the office of the hereditary trusteeship", which necessarily means that a non-rival claimant or a person who is not in the line of succession of the last holder of office i.e., a stranger has no right to question the appointment of a person to the post of a hereditary trusteeship. .... In the facts of the present case, the contesting respondent is not a rival claimant to the office of hereditary trusteeship nor claims to be a person in the line of succession of the last holder of office. In other words, he is a stranger to the claim for the post of hereditary trusteeship. He therefore, is not a person who can be said to be affected by the order of the Deputy Commissioner. His appeal therefore, to the Commissioner, was incompetent. In other words, the Commissioner had no jurisdiction to hear and decide an appeal filed by a person not affected by the order under Section 47(3). The Appellate Authority's order therefore, is liable to be quashed as being without jurisdiction. Whenever a 'trustee' makes a claim that he is a hereditary trustee or at some point of time earlier was holding a post of a hereditary trustee and if the same is disputed/ that has to be resolved by the Deputy Commissioner. Clause (b) of Section 57 therefore, presupposes that the disputant must already be appointed or holder of the office of trusteeship. In other words, if a person is not a trustee, and he makes a claim to the office of hereditary trusteeship, such a claim or dispute necessarily gets excluded from the operation of the said clause. The holding of office of trusteeship is a sine ana nan for the operation of Section 57(b). In a case where a person makes a claim to the office of the hereditary trusteeship claiming on the basis that he is in the line of succession to the last holder of office, and if such a claim is disputed, it is Section 47(3) which has application, not Section 57(b). The dispute under Section 47(3) cannot be confused with a dispute stated in Section 57(b). Each one operates in a different field and in different situations. It is a cardinal principle of interpretation of statutes that every part of a statute must be interpreted as to give meaning and as to avoid such interpretation
which makes one section or part of statute nugatory or otiose. — M. Sripathi Sampigethaya v P. Seetharam Bhat and Others, 2003(4) Kar. LJ. 98A.
MAHANT’S – MATADHIPATHI’S - POWERS
The power of the mahant over the income of the Math does not differ in quality from the power he has over the property of the Math. The property and the income belong to the Math, and must therefore be applied for the purposes of the math and consistently with the usage and custom of the endowment. Section 52(l)(f) of Madras Act which authorises the institution of a suit for removal of a Mahant where he is found to have wasted the funds or properties of the institution or has applied such funds or properties for purposes wholly unconnected with the institution does not amount to unreasonable restriction upon the fundamental right of the Mahant in the property under his management. Having regard to the large powers which the Mahant has over the application of the funds not only for maintenance of the dignity of his office, and expenses for the maintenance of the math, but also for such purposes, religious or charitable as are not inconsistent with the usage and custom of the endowment, application of the funds for personal enjoyment or luxury by the Mathadhipathi or for purposes wholly unconnected with the institution would alone be covered by the second part of Section 52(l)(f). By express enactment the expression 'pathakanikas' for the purpose of Section 55 as amended, means gift of property made to a Mahant as the head of the Math. Obligations imposed upon the Mahant to maintain regular accounts of the receipts of pathakanikas of the character defined in Section 55 and to utilise the same in accordance with customs and usages of the institution cannot be regarded as an unreasonable restriction upon the fundamental right of the Mahant. Section 55 as amended will not apply to pathakanikas which are proved to be gifts, personal to the Mahant. Section 76(1) providing for levy of contribution is valid. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out ot the amounts collected, there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax. It is true that ordinarily a fee is uniform and no account is taken of the varying abilities of different recipients. But absence of the uniformity is not a criterion on which alone it can be said that it is of the nature of a tax. A fee being a levy in consideration of rendering service of a particular type, correlation between the expenditure incurred by the Government and the levy must undoubtedly exist, bui a levy will not be regarded as a tax merely because of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some ol the contributories do not obtain the same degree of service as others may-Section 82 validating contributions which had been levied under Section 76(1) and (2) before it was amended by Act 27 of 1954 is valid. The State Legislature has power to levy a fee under the VII Schedule, List 111, Item 28 read with Item 47. The Legislature was therefore competent to levy a fee for rendering services in connection with the maintenance, supervision and control over the religious institutions and it was competent to levy the fee retrospectively. — Shri H.H. Sudhindra Thirtha Swamiar v Commissioner for Hindu Religious and Charitable Endowments, Mysore, AIR 1963 SC966
DEPUTY COMMISSIONER’S POWERS
Where the question whether a temple is a public or private temple is in dispute, the Deputy Commissioner should in (he first instance decide the dispute (which he is empowered by Section 57 of the Act to do), and it is only thereafter that the Commissioner would have power to demand contribution and audit fees under Section 76. — Sri Varadaraja Venkataramana Temple v Commissioner of Charitable Endowments, W.P. No. 178/1957, dated 21-3-1960. Suit for declaration of right to Archakship and emoluments — The Deputy Commissioner has, under Section 57(e) of the Act, jurisdiction to determine whether a person is entitled by custom or otherwise to the office of archak of a temple, and to the emoluments and perquisites attached to that office. Hence under Section 93 of the Act a suit for declaration of the right to Archakship would be barred. The Deputy Commissioner has jurisdiction to determine not only the right to perquisites and emoluments, but has also jurisdiction to determine the right to hold the office to which the emoluments or perquisites are attached. The power conferred on the Deputy Commissioner under Section 57 of the Act is a power to adjudicate on certain disputes relating to religious institutions and hence such power of adjudication cannot be regarded as interfering with the right to the denomination to manage the affairs of the institution. Hence Section 57 is not violative of the fundamental right guaranteed under Article 26 of the Constitution. Shamaraya v Beloor Sri Mariamma Temple (1973) 2 Mys. L.J. 131.
RIGHT TO ARCHAKSHIP OR RIGHT TO EMOLUMENTS
When a person asserts his right to archakship or right to emoluments and the opposite party disputes the claim, the authority has the power to decide whether he had right to office and if so what was the emoluments to which he was entitled to. Further, it may be seen that clause (e) of Section 57 provides that the Deputy Commissioner can also decide as to what the established usage of a religious institution is in regard to any other matter. Therefore, if the plea of the claimant in a given case is, having regard to the established usage, that the persons belonging to a particular group are entitled to perform pooja in the temple for a specific period, that would also fail within the scope of the words 'any other matter'. — Kaduveera Mada Thammadi v Madathimmadi, G.P., 1987(1) Kar. LJ. Sh. No. 98 : ILR1986 Kar. 1051 (DB).
ALLEGATION OF, AGAINST GOVERNMENT — MALA FIDE INTENTIONS CANNOT BE ATTRIBUTED TO GOVERNMENT IN THE ABSENCE OF ALLEGATIONS IMPLICATING ANY PARTICULAR PERSON/S IN THE GOVERNMENT
The High Court will not investigate the allegations of mala fide intentions whether made expressly or impliedly unless any specific person is named to be behind such mala fide action. The Government is in animate in certain aspects or in a certain sense. To whom the mala fide, action has to be traced must be made clear by those who have accused the Government of any mala fide action, Such person then may offer proper defence. In the absence of such allegations implicating any person in the Government, it will not be proper for this Court to attribute mala fide intentions to the Government in passing the impugned order. — Quraish Educational Society and Another v State o/Karnataka, 1987(1) Kar. LJ. 66,
MYSORE RELIGIOUS AND CHARITABLE INSTITUTIONS ACT, 1927
MUZRAI LANDS RESUMPTION
A Muzrai Officer could exercise the power for summary resumption of muzrai lands under Section 10 of the Act only if the lands are inam lands granted by the Government to the institution either for its upkeep or for the maintenance of persons rendering service in connection therewith. The mere fact that the lands are extensive or that they are situated close to or around the institution cannot by itself support the inference that they must necessarily be inam lands granted by the Government. — Abdul Rehab Khan v State of Mysore, 1963(1) Mys. L.J. 184
LEASE OF PROPERTY
Section 9(2) prohibits the lease of a property belonging to Muzrai Institutions for a term beyond five years without the previous approval of the government or by such officer as may be empowered. Under Government Order dated 30-11-1944 the Muzrai Commissioner is given power to sanction leases of non-agricultural lands upto a period of 20 years when the lease amount exceeds Rs. 500 and this order is still in operation. The order would amount to previous approval envisaged by Section 9(2). — State of Karnataka v S.K. Rama Rao, 1977(1) Kar. LJ. 75 : ILR 1976 Kar, 1587.
PUBLIC OR PRIVATE TRUST
The scheme of the Act is that the Court on a reference under Section 13 of the Act would determine only whether any charitable or religious trust has been actually created in respect of any institution and in a suit instituted under Section 21 the Court would determine whether such a trust was dedicated for the benefit of the public. Section 13 does not cover an investigation regarding the nature of the trust. —Muzrai Officer (Assistant Commissioner) Kolar v Dakappa and Others, 1982(1) Kar. L.J. 392 (DB).
SUIT CLAIMING TO BE THE OWNER OF A TEMPLE
Learned Counsel for the petitioners submitted that the language of Section 13 of the Mysore Religious and Charitable Institutions Act, 1927 which inter alia provides for reference of a dispute whenever a dispute arises as to whether any charitable or religious trust has been actually created in respect of any institution, the muzrai officer, may, with the sanction of the Government, make a reference to the Court of the District Judge in whose jurisdiction the institution or the greater part of the property thereof is situated for adjudication. It is therefore contended that, since the dispute was there, the Court of the District Judge alone was competent to decide and not the High Court. The argument is rejected on the sole ground that the suit instituted by the predecessor in title was not on the basis of Section 13 of the Act, but on the basis of the deed of settlement said to have been executed by one Sukandaramma who had been permitted by the Committee of management to be in possession of the temple and its properties. Therefore, it was not a matter arising under the provisions of the Mysore Religious and Charitable Institutions Act, 1927 simpliciter but a matter arising in regard to civil rights of the petitioners or their predecessors in title on the basis of the instrument said to have been executed by Sukandaramma who has not competent to do so. If ultimately in deciding the essential issue raised in the suit, that is, whether the plaintiff was the owner of the temple, the answer was that it was a public temple, it cannot be said to be a decision without jurisdiction, much less is it possible for any other Judge of this Court to sit in Judgment over the earlier decision of this Court and say that the decision is not binding on the petitioners, who are successors in interest when no appeal was preferred by the petitioners against that finding. — Chandra Prabha and Another v Vijaya and Others, 1992(4) Kar. L.J. 136.
TRESPASSER CLAIMING RIGHTS
Where a trespasser claims in his own right property which is alleged to belong to a trust, the Muzrai Officer has no power to make any order or take action under any of the sections. —1961 Mys. L.J. 708.
MISMANAGEMENT OF MUTT — ENQUIRY
Under the Act a Mutt is a muzrai institution. But Section 17 of the Act cannot be invoked to hold an inquiry against the management of the Mutt. Section 24 excludes the applicability of Section 17 which is in Chapter III to Mutts. Section 26 provides a separate machinery with regard to Mutts. Whether a particular Mutt is private or public would depend upon the construction of the grant if there was one and if there was no grant by which it was founded, then on the custom and usage of the institution. That persons have contributed to the renovation of the institution is not relevant for determining the nature and character of the institution. — Niravanappa N.M. v KRATand Others, 1981(1} Kar. L.J. 477.
TAKING POSSESSION OF ENDOWED PROPERTY
Authority is muzrai officer and not Government — Shree Yogakshatriya Sadhu Shetty Sangh v Muzrai Officer, 1972 Mys. L.J. Sh N. 81.
APPOINTMENT OF ARCHAK — QUALIFICATION PRESCRIBED FOR
In circular issued in 1892 much before Act came into force — Circular is only executive instruction with no legal force behind it — Government is competent to frame rules prescribing qualification.
Tirath S. Thakur, }., Held.—The qualifications in question are said to have been prescribed in the form of an executive order which does not prima fade have any legal action behind it. The circular relied upon and contained in the Muzrai Manual is said to have been issued some where in 1892, i.e., much before the promulgation of the Karnataka Religious and Charitable Institutions Act, 1927. It is therefore, doubtful whether any such qualification prescribed could at all be called in aid for challenging the appointment of the second respondent particularly when the Act does not recognise the same nor is any such qualification prescribed or adopted under the rules that the Government is empowered to frame under Section 41 of the Act. — G.C. Pmbhuswamy v The Special Deputy Commissioner, Tumkur District, Tumkur and Others, 1997(1) Kar. LJ. 261-A.
POWER TO APPOINT AND DISMISS AN ARCHAK
The power to appoint and dismiss an archak is conferred on the Muzrai Officer. Muzrai Officer is the Deputy Commissioner or the Assistant Commissioner to whom power is delegated. Hence the Tahsildar has no power to dismiss an archak under the Act. — Shivalingaiah v Tahsildar, (1974)2 Kar. LJ. Jr. 64 Sh N. 236. SEE ALSO Chandrappa, P.B. v The Special Deputy Commissioner, Tumkur and Others, 1987(2) Kar. L.J. 144.
(TO BE UPDATED)
CASES ON LEASES OF IMMOVABLE PROPERTY
Whether particular agreement creates lease or licence has to be gathered from circumstances of agreement — Party claiming benefit of lease has to prove existence of lease — Annual auctioning of right to run hotel in premises at bus stand belonging to Village Panchayat — Agreement between Panchayat and successful bidder in auction — Agreement creates no lease but only licence. Held: There is a very clear and distinct distinction in law between the concept of tenancy and that of a licence. It is true that in certain cases an arrangement between parties regardless of what it is called or defined has been construed by a Court to be one that confers tenancy rights particularly in cases where the person has been in occupation for a long period of time. Various circumstances attendant in each of such cases must unmistakably indicate that the contract was one of tenancy arid that in order to deprive the occupant of the benefits and protection of the statute, the document was given a different colour. The first essential requirement is that these circumstances must be present but more importantly, it is for the party claiming those benefits to aver very specifically that the agreement was one of tenancy and thereafter to establish this to the satisfaction of the Court. The arrangement emanated from the usual auction of conducting rights for a period of one year and therefore even to set up a plea of tenancy would be extremely far-fetched. The agreement only conferred a licence for a period of twelve months and nothing else and further more, what needs to be taken cognizance of is the fact that the agreement and its execution itself are unchallenged. In these circumstances, the petitioner herself would be virtually estopped from even pleading any status other than that of a licensee. Under these circumstances, the respondents who are the authority in-charge of the premises would be justified in removing anybody including the petitioner, if such persons come in the way of the party to whom the contract has been awarded from functioning there. — Smt. Prathima S. Bhat v Uppinangadi Grama Panchayath, Uppinangadi, Puttur Taluk, D.K. and Another, 1995(6) Kar. LJ. 136.
The Forest Department held an auction in respect of various items of forest produce and the auction notice required purchasers to comply with sales tax and stamp law. The auction agreements were for a period of nine to ten months and the purchasers were merely granted the right to cut and carry away the forest produce. Held, the purchasers did not acquire any interest in the soil but merely a right to cut the forest produce and therefore the agreements were in the nature of licences and not leases so as to attract Article 31 (e) of the (Indian) Stamp Act. A study of the definition of 'immovable property' in Section 3{26) of the General Clauses Act, Section 3 of the Transfer of Property Act, Section 2(6) of the Stamp Act and Section 2(7} of the Sale of Goods Act shows that it is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. No rights over the earnest deposits made by bidders pending auction were created in favour of the State Government and hence the security deposits were not in the nature of mortgages and the purchasers could not be called upon to pay stamp duty under Section 35(c) of the Stamp Act. — Board of Revenue v A.M. Ansari, AIR 1976 SC1813
Section 105 — Easements Act, 1882, Section 52 — Karnataka Rent Control Act, 1961, Sections 21 and 31 — Lease or licence — Suit for eviction of tenant after termination of tenancy in building exempted from operation of Rent Control Act — Compromise decree under which tenant handed over portion of suit building to landlord and promised to vacate remaining portion before specified date and also agreed to pay "rent" till date of vacating — Agreement under compromise decree, held, did not create fresh lease even though word "rent" is used — Tenant has become licensee — Compromise decree can be executed when licensee has breached his promise to vacate suit building — Fresh order of eviction under Section 21 of Rent Control Act — Not necessary even though exemption from operation of Rent Control Act in respect of suit building has since been removed. Held.—The decree was passed on 21-4-1984 much prior to 1-7-1986. (the date on which Section 31 was struck down). If under the terms of the decree the party has agreed to abide by certain conditions and if by those conditions the petitioner has handed over a portion of the suit premises and retains some other portion of the premises, agreeing to pay damages till vacant possession is delivered, it would be difficult to go behind the decree and hold that the petitioner is still a tenant. If the petitioner is not a tenant pursuant to the compromise decree and pursuant to him handing over the possession of a portion of the suit premises, then, it would not be possible to hold that the petitioner retains the remaining portion of the property only as a tenant. Petitioner will undoubtedly be, under the terms of the compromise only a licensee and not a tenant. ... It is the intention of the parties which is the decisive test, notwithstanding the fact that the word 'rent' being used in the compromise decree. If it can be culled out from the decree passed by a Court of competent jurisdiction that the intention of the parties was that the tenant willingly acquiesced to be a licensee rather than a tenant then he will undoubtedly be a licensee and nothing more. In these circumstances the landlord was certainly entitled to execute the decree of a Civil Court. ... In the first execution case, the tenant did not question the jurisdiction of the Court but sought time to deliver vacant possession till 7-1-1991. It is only when the tenant did not deliver vacant possession on 7-1-1991 as agreed by him, the landlord was compelled to file the second execution petition. ... It is difficult to impute an intention to create a fresh lease and that pursuant to the compromise decree there was no intention for the parties to enter into a relationship of landlord and tenant. In the facts and circumstances of the case, it has to be necessarily held that the petitioner was only a licensee pursuant to the compromise decree and that such decree is executable. — C.L Seetharam v J.C. Rudra Sharma, 1997(3) Kar. L.J. 37 (DB).
GRANTED ONLY BY A PERSON COMPETENT TO CONTRACT
A Lease can be granted only by a person competent to contract and the lessor must have title to the property or authority from the owner of the property. — Lakshman Gidwani v Thimmamma, 1987(2) Kar. L.J. 426.
TENANT AT WILL
Even if it is held that a tenant at will has no sure interest or estate, he cannot be evicted without a notice, the duration of which would be depended upon the nature of the lease. In the case of an Agricultural Lease, the notice must expire with the end of the agriculture lease. A tenant at will is none the less a tenant the concept of tenancy at will has reference to duration and interest in the Sand. He is not a tenant at the sweet will and mercy of the landlord. The status and possession of a person who was admittedly a tenant of premises covered by local rent restriction Act till date of commencement of a fresh lease, which turns out to be void for want of registration during and at the expiry of the period purporting to be reserved by such void lease would be that of a tenant. Such a tenant could only be removed by proper legal proceeding and he is not a licence without interest in the premises and could not be forceably evicted by the landlord entering on the premises and locking the same. Such tenant could defend his possession by a suit seeking a declaration and mandatory injunction. — Biswabani (Private) Limited v Santosh Kurmr, 1979(2) Kar. L.J. Sh. N. 98 (SC).
Even if it is held that a tenant at will has no sure interest or estate, he cannot be evicted without notice, the duration of which would be dependent upon the nature of the lease. In the case of an agricultural lease, the notice must expiry with the end of the agricultural lease. A tenant at will is nonetheless a tenant. The concept of tenancy at will has reference to duration and interest in the land. He is not a tenant at the sweet will and mercy of the landlord. Hence, possession of the tenant at will, where notice to quit has not been issued, is not on behalf of the landlord and the landlord cannot to be in khas possession within Section 6 of the Bihar Land Reforms Act. The right to take possession is not khas possession. A tenant at will enters possession with the consent of the landlord and till his tenancy is determined, he is in lawful possession and cannot be styled as a trespasser. — Ramesh Bejoy v Pashupati Rai, 1979(2) Kar. LJ. Sh. N. 97 (SC).
Where the lease contained a specific condition that the tenant shall give up possession of the house at the will of the landlord without demur and no definite period was fixed in the lease, the tenancy is one at will. Such tenancy can be determined either by demand to give up possession or by operation of law at the death of the lessor. — Bhimangoud v Golangouda, 1983(1) Kar. LJ. Sh. N. 23.
A RIGHT TO CARRY ON MINING OPERATION
Section 105 — Every interest in Immoveable property or a benefit arising out of land will be immoveable property for the purpose of Section 105 of T.P. Act. A right to carry on mining operation in land to extract a specified mineral and to remove and appropriate it, is a right to enjoy immoveable property within Section 105 of T.P. Act, more so when it is coupled with a right to be in its exclusive has possession for a specified period, — Shri Shri Takeshwar Sio Thakur Jiu v Hari Dass. — 1979(1) Kar. L.J, Sh. N. 71 (SC).
TENANT DIES THE LEGAL REPRESENTATIVE HAS NO HERITABLE RIGHT TO THE TENANCY
Houses and Rent — Statutory tenant — termination of tenancy — The legal representative has no right to inherit the tenancy. The relationship of landlord and tenant is regulated by the Provisions of the T.P. Act once since relationship, which is Contractual, is terminated under Section 111 of the T.P. Act, the tenant, if he continued in possession of the premises is called statutory tenant, Since tenancy can be terminated only by having recourse to the Rent Control Act. When the Court passes an order of eviction, the tenancy stands terminated. If subsequently, the tenant dies the legal representative has no heritable right to the tenancy — Radheshyam Modi v Jadunath Mahapatra, AIR 1991 Ori. 88.
PERPETUAL LEASE
Whether perpetual or for term — Proof — Onus — Though there is no presumption in law against perpetual lease, unambiguous language is required to infer such lease which has effect of depriving owner of his right to enjoy property for ever — Mere fact that lease is for 99 years at uniform fixed rent, with stipulation for renewal under same terms and conditions at option of lessee and fact that lease is binding on heirs, administrators, executors, successors and legatees of both lessor and lessee and further fact that lessee has made constructions on leased property at his own cost, would not raise presumption that lease is perpetual lease — Onus of proving that lease is perpetual is on lessee — In absence of provision for renewal at option of lessee for indefinite length of time and from generation to generation, lease is to be held term lease only with option for renewal for only once. Held: Though there is no presumption against perpetual lease, clear and unambiguous language is required to infer such a lease. If the language is ambiguous, not clear and admits of some doubt, the Court is required to opt for an interpretation rejecting the plea of a perpetual lease. This is necessary because if the Court leans in favour of a perpetual lease in the absence of the language being clear and unambiguous, the effect of such interpretation would be to deprive a owner of his right to enjoy the property for ever. There is no presumption in favour of the perpetual lease and the Courts are required to lean against perpetual lease in the absence of stipulations in that behalf being unambiguous or clear. . . . .The lease is for a period of 99 years. Therefore, there cannot be any doubt that when a period of 99 years is fixed in the lease deed, it is a term lease. The renewal, even if done at the option of the lessee, again could be for a term of 99 years only. Whether it be during the original period of Sease or even in the renewed period, the option is given to the lessee to surrender at his discretion. There is no provision in the lease deed which says that the renewal of the lease is for an indefinite period. In the absence of a specific provision in the lease deed providing that the renewal is required to be made at the option of the lessee for an indefinite length of time and from generation to generation, it is not possible to come to the conclusion that merely because the lease provides for a renewal of the term fixed in the lease deed under the same terms and conditions, that renewal is for an indefinite period and the lease is a permanent lease. The lease is only for a term of 99 years; and the option can be exercised to renew the lease only once. .... -Since the lease was for construction of a building and for establishing a Pressing and Ginning Factory, the term of the lease is fixed fairly long and a clause for renewal of the lease also is provided. Therefore, the long term provided in the lease with a renewal clause, cannot be understood as meaning that the lease is a permanent lease. Though the power of transfer or assignment of the lease is reserved to the lessee, the said provision specifically states that the transfer or assignment of leasehold interest of the lessee should not in any way affect the other conditions of the lease. The lease deed also provides that in the event the lessee is required to cut any tree growth in the land leased if the said tree growth becoming an obstruction to make use of the leased land for the purpose it was let out, the lessee can cut the trees, but hand over the tree growths to the lessor. This clearly shows that the lessor has reserved substantial interest in the leased premises and he has a right to the tree growths on the leased land in the event of the said tree growths are required to be cut. It is also provided that in the event of lessee vacating the demised land, he is required to deliver wood, stone and tiles used for the construction of the building to the lessor and take only the machineries and zinc sheets. — Channabasappa Gurappa Belagavi and Others u Laxmidas Bapudas Darbar and Another, 1999(1) Kar. L.J. 216A.
LEASE AND AGREEMENT TO GRANT LEASE
Payment of advance to owner to make necessary repairs and alterations to buildings — Agreement between parties speaking of present demise in favour of payer of advance — Property to be handed over after repairs and alterations —Mere use of expression "present demise" not decisive for holding it to be lease when demise depended on completion of repairs and alterations in accordance with agreement — Contract is mere executory contract and not lease. Held: The covenants between the parties, it is clear that the possession over the property was to be handed over to the plaintiff after construction of the building with necessary alterations and additions as agreed to between the parties. The said clause also speaks of the present demise in favour of the plaintiff. The question is whether despite use of the words 'present demise', the instrument can be construed as merely executory being in the nature of 'agreement to lease' and not 'lease'. The mere words of present demise as set out in the Document are not decisive for holding it to be a lease because in fact the demise is depended on the completion of the building in accordance with the requirement of the plaintiff which was under construction on the date of the execution of the said document. Therefore, the contract entered into by the parties has to be held as a mere executory contract and not one which has created the demise in praesenti. — Sheshagiri v Belgaum District Co-operative Bank Limited, Belgaum, 1995(4) Kar. L.J. 403.
LEASE AND LICENCE
To ascertain the true intent and import of a document, the document should be read as a whole. The proper function of the preamble is to explain certain facts which are necessary to be explained before the enacting part of the statute can be understood. This would equally apply to a deed or a document. The preamble to the suit agreement show that the plaintiff is the owner and the proprietrix of the industry called the "Saravana Industries", that she has been doing business of manufacture and sale of steel furniture, grits, gates, steel windows, industrial works and fabrications pipe and electrical accessories etc., in the said industry and in the last para of the preamble, it is stated that the plaintiff unable to manage the industry more effectively due to her old age and therefore, she is desirous of hiring out the business with the machinery and tools, etc., to the defendant. The mere fact that the word 'factory' is not introduced but only the words 'hiring out the business with the machinery and tools etc.', are used, does not make the transaction any of the less of making over the factory will all the machineries and the tools etc., for carrying on the business subject to the terms and conditions of the agreement that were to follow in the deed. Hiring out the business with the machinery and tools without the entire building including the factory would not carry out the purpose and intention of the parties that the defendant were to carry on the industry which was being carried on by the plaintiff and which she was unable to carry on due to her old age. Reading the suit agreement as a whole, there remain no doubt that it is a lease of the factory along with the tools, machineries, furniture etc., and not merely hiring of the business with the machinery and tools etc. The subject-matter of the suit agreement is not a matter like a shandy place where people are allowed to vend their articles by paying market fee or a cycle stand where a party may keep his bicycle for few hours against payment of certain charges, without having any actual possession of the place or any interest being created in the land on which they transact their business or keep their bicycle. The subject-matter of the transaction between the plaintiff and defendant, in the instant case, is an industrial unit, manufacturing steel article of various kinds and unless the defendant had exclusive possession of the factory premises, the defendant could not carry on the industry of manufacturing various kinds of steel articles he was expected to manufacture. Considering the suit agreement as a whole, there is no doubt that it is a 'lease' and not a 'licence'. — Smt. Sundara Bai Ammal and Others v K.V. Rajagopai and Others, ILR1985 Kar. 1706.
LESSEE IS ENTITLED TO A LIMITED INJUNCTION FROM BEING DISPOSSESSED FORCIBLY OTHERWISE THAN IN ACCORDANCE WITH LAW
A lessee after the expiry of termination of the lease does not yield up possession — Whether entitled to injunction against forcible dispossession by the lessor otherwise in accordance with the law — whether lessee has right to continue in possession and injunction can be granted. There can be no forcible dispossession of a person who has juridical possession and the landlord can be restrained from resorting to high handed acts aimed at forcible dispossession, otherwise than in accordance with law. No claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognised or countenanced by Courts. Such a right in the respondent cannot be recognised regardless of the question whether or not the appellant itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession — Which in the circumstances is litiguous possession and cannot be equated with lawful possession — But a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession.The lessee is entitled to a limited injunction from being dispossessed forcibly otherwise than in accordance with law. — M/s. Patil Exhibitors (Private) Limited v The Corporation of the City of Bangalore, ILR 1985 Kar. 3700 : AIR 1986 Kant 194.
PURCHASE THE PREMISES FROM THE LANDLORD
When a tenant agrees to purchase the premises from the landlord it was held that the tenant continue to be a tenant. — Rudrappa by L.Rs. v Danappa Malasiddappa, 1982(1) Kar. L.J. 284.
VOID LEASE - DEFEND HIS POSSESSION UNDER SECTION 53-A OF T.P. ACT
When there is void lease and consequently the lessee is put in possession of the premises it does not become, a tenant under such void lease. He can only defend his possession under Section 53-A of T.P. Act. — Technicians Studio (Private) Limited v Lila Ghosh, 1978(1) Kar. L.J. Sh. N. 9 (DB).
RENEWAL CLAUSE
Whenever a lease contains a renewal clause it confers an immediate right to a further extension as the covenant runs with the land and it is exercisable by the lesse at any time after the commence of the lease. — R. Kempraj v M/s. Burton Son and Company Private Limited, AIR 1970 SC 1872, relied on. When the Wakf Board has accorded sanction for leasing the suit property with a clause for renewal for a further period of 20 years at the option of the lessee, no further sanction was required to be obtained from the Wakf Board for renewing the lease. After the coming into force of the Transfer of Property Act, leases of immoveable property are governed by Chap. V of the Transfer of Property Act. Therefore, any principle opposed to the provisions in Chap. V of the Transfer of Property Act cannot be enforced. — Vishvarma Hotels Limited v Anjuman-e-lmamia and Others, 1982(2) Kar. L.J. 264.
A licence in respect of a theatre was renewed on 29-12-1980 in favour of the licensee who was a tenant of the premises. The landlord of the premises challenged the renewal in a petition under Article 226 of the Constitution, alleging that the license was not in a lawful possession of the theatre on the date of the renewal. The lease was for 10 years from 10-7-1970 expiring on 9-7-1980. Under the lease deed option to renew the lease was given to the tenant and the tenant exercised the option by notice, dated 27-2-1980. Even after 9-7-1980 the landlord went on accepting rent. The tenant had made a deposit to be adjusted towards the rent of the last month but the landlord did not so adjust the deposit. HELD, when the tenant exercised the option by notice to the landlord before the expiry of the lease, a fresh lease came into existence. When the deposit was not appropriated by the lessor towards the rents for the last months of the tenancy expiring on 9-7-1980, it showed he had no intention to determine the lease. Further, whereafter the period was over, the lessor went on accepting the rents, it brought into effect a fresh tenancy. A subsequent notice issued in November, 1980 by the landlord determining the tenancy could not set at nought the tenancy which had already come into existence Manjunath V.R. and Another v M.V. Veerendra Kumar and Another, 1981(2) Kar. L.J. 147.
A Lessee entitled to renewal of lease and in possession after the expiry of the original period with the consent of the owner is a lessee for a renewed period and is not merely holding over. —1964 Mys. LJ. Supp. 112.
A tenancy for residence renewed by holding over can only be a month to month tenancy, though the rent reserved was yearly. —- Husensaheb Sayadsaheb Attar v Muktabai and Another, 1962 Mys. LJ, 1000.
In the case of a tenant holding over, the question whether the renewal of the lease is from year to year or month to month has to be determined with reference to Sections 116 and 106 T.P. Act and where the lease is not one for Agricultural or Manufacturing purpose, it must be deemed to be a lease from month to month. — Bheemappa Hanumanthappa and Another v Nagaraj alias Shivanagappa, 1966(1) Mys. LJ. 664.
Lease during the period when a tenant is holding over, is renewed from month to month, if the lease is not for Agricultural or Manufacturing purposes. — 1959 Mys. LJ. 165.
Lessee in occupation of property after the expiry of Lease, is a tenant holding over. A suit for eviction without notice to quit under Section 116 is not maintainable. Such a tenant does not become a tenant at sufferance on expiry of term under unregistered Lease Deed executed before filing of suit. — Satish Chand Makhan and Others v Govardhan Das Byas and Others, AIR 1984 SC 143.
LEASE OR MORTGAGE – MERGER OF BOTH
Where a document is of a composite character disclosing features of both mortgage and lease, it cannot be taken as a lease. The Court will have to find out the predominant intention of the parties viewed from the essential aspects of the transaction. There is one most essential feature in a mortgage which is absent in a lease (i.e.) that the property transferred is a security for the repayment of a debt whereas in a lease, it is a transfer of a right to enjoy the property. Where this essential feature of a mortgage is missing, the document is not a mortgage, — Puzikkal Kuttappan v Bhargavi, 1977(1) Kar. L.J. Sh. N. 66 (FB).
Where there were many features in the document which were more consistent with a lease than a mortgage the transaction is a lease. — Tayawwa v Gangaiviva and Others, 1966(2) Mys. L.J. 560.
Usufructory mortgage in favour of lessee already in possession — Stipulation in mortgage deed that possession of mortgagee to be treated as a fresn possession and that until payment of mortgage amounts, mortgagee is entitled to continue in possession — Absence of specific recital as to recovery of possession — Whether lessee had surrendered his lease-hold right was the qviestion that arose for consideration — Held, recitals had the effect of putting an end to relationship of lessor and lessee on creation of new relationship of mortgager and mortgagee — Explained. — Syed Imdad v R. Ramaswamy, 1989(3) Kar. LJ. 422.
Possessory mortgage to tenant effect. Where a possessory mortgage was given to appellant who was in possession as a tenant on 21-5-1953 and it was stipulated that the lease was to exist upto 6-11-1953, the mortgagee was given power to sublet, the mortgagor was to do repairs and the possession was to be under the mortgage deed, and the mortgagee undertook to deliver possession of the property on the expiry of ten years. Held, the appellant had surrendered his tenancy from 7-11-1953 and thereafter the possession was only that of mortgagee and there was no question of the tenancy being kept in abeyance and reviving on expiration of the period of mortgage. There cannot be a merger of lease and mortgage in respect of the same property, since neither of them is a higher or lesser interest than the other. _ Shah Mathuradas Maganlal and Company v Nagappa Shankarappa Malaga, AIR 1976 SC 1565.
Landlord mortgaged the house to the tenant — Tenant effected improvements — Landlord sold the property to respondent and another — Suit for redemption and possession — Contended by the appellants — Decision in Regular Appeal in favour of respondents — Challenged in RSA. – (1)Whether the leasehold rights of the appellant (mortgagor) got merged in the mortgage? Held.—It is well-settled that there is no question of merger as such of a lease with the mortgagee. In other words, it is not as if lease and mortgage cannot co-exist. This is clear from the decision of the Supreme Court in Gambangi Appalaswamy Naidu and Others v Behara Venkataramanayya Patro and Others, (1984)4 SCC 382 : AIR 1984 SC 1728. (2) Whether the lessee (defendant) impliedly surrendered his lessee's rights for the purpose of taking usufructuary mortgage of the property. Held—The fact that there was no stipulation to pay any interest on the mortgage money; the fact that there was no liability on the part of the defendant to pay rent after the mortgage came into force; the fact that there was no agreement to make any adjustment of payment of rent or interest; the fact that the mortgage period is fixed for about eight years; the fact that, if for some reason, plaintiff was unable to make payment even at the end of eighth year, the defendant was given an opportunity to continue on the land till the amount was paid and other circumstances would unmistakably indicate that the intention of the parties was not to continue the relationship of lessor and lessee as between the mortgagor and mortgagee. In the opinion of this Court, if these circumstances are tested by the guidelines given by the Supreme Court in Gambangi's case, the same would unmistakably point to the conclusion that there was an implied surrender of his tenancy on the part of the defendant immediately .before usufructuary mortgage was executed in his favour. —Abdulmsoolsab Chamanasab Phaniband v Ruth, 1990(4) Kar. LJ. 382A.
AFTER CONSENT DECREE – RECEIPT OF RENT DID NOT BRING FRESH LEASE
Where the tenant was given time till the end of 1957 to hand over possession of the property under a consent decree, and he paid the rent in September, October, November and December, 1957 and mesne profits for January, 1958 and the receipt mentioned that what was received was rent, it was Held that the use of the word rent in respect of January, 1958 did not bring about a fresh lease between the parties. — Habighai Meharalli Bhavnagri v Shivaji Rao D. Jadhav, 1965(2) Mys. L.J. 672.
STATUTORY TENANT
There is transfer of immovable property in favour of the petitioners. .... The very_instrument is titled as 'Lease Deed' and throughout in the said deed the words 'Lessor' and 'Lessee' are used. The sum of Rs. 6,00,000/-paid by the lessees was for five years and eight months and the same was paid in advance instead of paying monthly rent every month. The recitals in the lease deed is binding upon the 3rd respondent as the execution of the said document is not in dispute. Having agreed so, it is not open now for the 3rd respondent to turn round and say that it was not a lease' but 'licence' and suc