CUSTOM SEARCH

IF THE FUNDAMENTAL RIGHTS OF A CITIZEN ARE INFRINGED THEN THE LIABILITY OF THE STATE, ITS OFFICIALS AND INSTRUMENTALS IS STRICT 2011 SC

READ FULL JUDGMENT
Justice R.V. Raveendran, Justice K.S. Radhakrishnan in Municipal Corporation of Delhi VS Association of Victims of Uphaar Tragedy & Ors. Decided on 13 October, 2011 In a case, where life and personal liberty have been violated the absence of any statutory provision for compensation in the Statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high, compared to the statutory powers and supervision expected from officers functioning under the statutes like Companies Act, Cooperative Societies Act and such similar legislations. When we look at the various provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity Laws the duty of care on officials was high and liabilities strict.

Law is well settled that a Constitutional Court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for determining the compensation payable in a private tort claims are not as such applicable when a constitutional court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens.

This Court in Union of India v. Prabhakaran (2008) (9) SCC 527, extended the principle to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies which may be social utility undertakings not working for private profit. In Prabhakaran (supra) a woman fell on a railway track and was fatally run over and her husband demanded compensation. Railways argued that she was negligent as she tried to board a moving train. Rejecting the plea of the Railways, this Court held that her "contributory negligence" should not be considered in such untoward incidents - the railways has "strict liability". A strict liability in torts, private or constitutional do not call for a finding of intent or negligence. In such a case highest degree of care is expected from private and public bodies especially when the conduct causes physical injury or harm to persons. The question as to whether the law imposes a strict liability on the state and its officials primarily depends upon the purpose and object of the legislation as well. When activities are hazardous and if they are inherently dangerous the statute expects highest degree of care and if someone is injured because of such activities, the State and its officials are liable even if they could establish that there was no negligence and that it was not intentional. Public safety legislations generally falls in that category of breach of statutory duty by a public authority. To decide whether the breach is actionable, the Court must generally look at the statute and its provisions and determine whether legislature in its wisdom intended to give rise to a cause of action in damages and whether the claimant is intended to be protected.

PUBLIC TRUST – TRANSPARENCY IN ITS ADMINISTRATION STRESSED – INTEREST OF PUBLIC IS PARAMOUNT – 2011 SC

READ FULL JUDGMENT
JUSTICE R.V. Raveendran, JUSTICE A.K. Patnaik in Trambakeshwar Devasthan Trust & ... vs President Purohit Sangh & Ors. Decided on 13 October, 2011 “By the very nature of the activities in a place used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any Section thereof, it is antithesis to a private and closed door management of its affairs. On the other hand there has to be complete openness and transparency in its administration and above all by observing democratic values or principles. To put it differently, it is public trust for the community, by the community and of the community or any section thereof. If such is the purport of the Trust then diversified representation and involvement of all concerned or the section of the pubic who have interest in the Trust and in particular associated with the day to day activities of the temple of the devasthan is inevitable - and the most appropriate step to further and promote the objectives of such a Trust…………………. A person can be said to be disqualified or would render himself unfit for being appointed as the trustees only when he has direct interest in the trust or the devasthan and is hostile to the affairs of the Trust and his object is to see that the Trust is destroyed. To put it differently, there is a perceptible difference between person having interest in the trust and person having conflict of interest. The former is the quintessence for being eligible to be considered or for being appointed as the trustee……………… Law is however well settled that the interest of the public is paramount in any religious public trust.”

WOMEN RIGHT TO ANCESTRAL PROPERTY – WOMEN WHO DIED BEFORE 09-09-2005, WHEN THERE IS NO PENDING CASE – IS NOT A CO-PARCENER – JUSTICE SMT ROSHAN DALVI

READ FULL JUDGMENT
SMT. ROSHAN DALVI, J of Bombay High Court, in Sadashiv Sakharam Patil & Ors vs Chandrakant Gopal Desale & Ors Judgment passed on 6 September, 2011 It is stated "Only on and from 9th September 2005 on which date the Amendment Act 39 of 2005 came into force that the daughter who was then living would become a coparcener."

In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 the first three words of the aforesaid section came to be considered and interpreted in paragraph 24. It has been observed that the words "on and from" mean "immediately and after" - the commencement of the Act. It is observed that in other words as soon as the amending Act came into force the daughter of the coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. In that case the change in law came into effect during the pendency of the Appeals. It was held that the changed law applied to pending Appeals and consequently, the said Appeal. Hence the daughter in that case was held to be the coparcener. It was observed that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners. Hence it was held that even a daughter who was born prior to the amendment Act became a coparcener immediately on and after the Amendment Act.

This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation.

The words "on" and "from" show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words "on" and "from" "the commencement of the Hindu Succession (Amendment) Act, 2005" would lose their significance all together and would be rendered otiose.

This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cutoff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. Counsel on behalf of the original Plaintiff sought to show that the proviso has been held to be ultra vires the constitution by the Karnataka High Court which judgment shall be considered presently.

It has been held in the case of Pravat Chandra Pattnaik & Ors. Vs. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 that the aforesaid Section was enacted for removing the gender discrimination that prevailed leading to oppression and negation of the fundamental right of equality to women and to render social justice by giving them equal status in the Society. The Act came into force from 9th September 2005 and the statutory provisions under Section 6 of Hindu Succession Act, 1956 thereof created a new right. The provisions are not expressly made retrospective by the legislature. The Act is clear and there is no ambiguity. Therefore, words cannot be interpolated. They do not bear more than one meaning. The Act is therefore, prospective. It creates a substantive right in favour of the daughter. The daughter gets a rights of a coparcener from the date when the amended Act came into force. Consequently, the contention that only the daughters who were born after 2005 would be treated as coparceners was not accepted. It specifically clarifies that the daughter gets a right as a coparcener from the year 2005 whenever she may have been born. She can claim a partition of the property which was not partitioned earlier. However, the judgment specifies a rider. That is in view of the proviso to Section 6(1) of the Act.

"But if the same was effected earlier i.e., prior to 20th December, 2004 the same should not be reopened."

It is, therefore, that it is rightly contended on behalf of the Defendants in the suit that Sakharam's succession opened on 4th October 1995 on that date his daughters Muktabai and/or Narmadabai were not coparceners. His coparcenery property would devolve by survivorship to his only son Sadashiv. The devolution of interest in the coparcenery property as specified in the sub- title/heading of Section 6 would take place only to the son. The words in the sub-title "devolution of interest" also therefore, show that for an interest to devolve upon a person that person must be alive. No devolution of interest in coparcenery property can take place upon a deceased coparcener. On the date of the death of Sakharam his daughters were not even coparceners; they were not even alive. No devolution of interest upon them could take place.

In the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8 SCC 581 the Court considered the estate of one Babu Ram who died in the year 1989. He was one of the 5 sons of Tulsi Ram and one of the members of the coparcenery property. He left behind two sons and three daughters. Babu Ram had inherited 1/5th share of the property of his father and 1/20th share through another brother who had died intestate without issues. The succession between the two brothers and their descendants was in issue. The applicability of the Section 6 of the Hindu Succession Act of 1956 was under consideration. Though that is a different matter, observation in paragraph 21 of the judgment relates to the new Act of 2005. It was inter alia observed that the succession was opened in 1989 and hence the provisions of the amendment Act 2005 would have no application. Thereupon Section 6(1) of the old Act of 1956 which related to succession on the death of a coparcener in the event the heirs were only male descendants came to be considered.

My attention has been drawn by Counsel on behalf of the original Plaintiff to the judgment in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 to show that this aspect has been negated in the later judgment of the Supreme Court. Paragraph 49 of the judgment extracts the case of Sheela Devi and the entire paragraph 21 thereof. It is observed that in the case of Sheela Devi the amendment Act had no application as the succession has opened prior to 1989 and hence that contention came to be negatived to consider and interpret the vesting of the right of the coparcener under the old Act. It is, therefore, entirely erroneous to contend upon reading the word "negatived" that the contention that upon the succession opening in 1989 the amendment would have no application was negatived without reading the entire paragraph 49 as a whole. It may be clarified that in the case of Sheela Devi upon the applicability of Section 6 of the old Act, the contention with regard to the applicability of the new Act was negatived and the old Section was considered. Consequently, the fact that succession did open in 1989 when Babu Ram died which did not make the new Act applicable was accepted. We would do well to read the two judgments together.

We are concerned with only the aspect of the applicability of the amendment Act on the date the succession opened. Since it was held that the new Act would not apply when succession opened prior to the date on which it came into force - in that case in 1989 - the Court considered Section 6 of the earlier Act.

In fact the observation in paragraph 8 of the judgment in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India & Anr. AIR 2010 Karnataka 27 to which also my attention has been drawn by Counsel on behalf of the original Plaintiff would be material. It runs thus: "It follows, therefore, that the provisions of the Act can be enforced when the right to succession opens and not before. The petitioner's father is said to be alive and hence her right to succession as a co-parcener has not opened." In that case the Plaintiff/Petitioner applied for partition of the coparcenery property whilst her father was alive under Section 6 of the new Act of 2005 upon the premise that she, as a coparcener, was entitled to all the rights of coparcener including partition. Her father was alive at that time. It was held that Section 6 of the new Act of 2005 was the law relating to intestate succession which regulates the succession of properties of all Hindus by its heading itself which speaks of "devolution" of interest. It was held that "Devolve" means to pass from a person dying to a person living. Hence, the right of a daughter to be treated like a son should be construed only with regard to the share that "devolves" on her when her right to succession opens having regard to the scope and ambit of the Act itself. Hence the judgment in the case of Ms. R. Kanta shows the restrictive operation of Section 6 as applying to devolution of interest upon the death of coparcener only.

SALE TRANSACTIONS BY GPA DOES NOT CONVEY TITLE

READ FULL JUDGMENT
Bench consisting of JUSTICE R.V. Raveendran, JUSTICE A.K. Patnaik, JUSTICE H.L. Gokhale in their Judgment in case of Suraj Lamp  Industries (P) ... vs State Of Haryana & Anr. Decided on 11 October, 2011

ILL-EFFECTS OF SA/GPA/WILL TRANSACTIONS

1. Suraj Lamp & Industries Pvt.Ltd. vs. State of Haryana & Anr. - 2009 (7) SCC 363 noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes.

2. Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

3. Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.

4. Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin. Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.

5. When the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.

6. It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.

DECISION

1. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property.

2. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act.

3. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records.

4. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease.

5. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.

HARDSHIP PLEADED

It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.

REPLIES AND RELIEFS GIVEN TO HARDSHIP

1. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities.

2. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.

3. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance.

4. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions.

LEGAL REASONS FOR SUCH JUDGEMENT DISCUSSED BY COURT

1. Section 5 of the Transfer of Property Act, 1882 transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and to transfer property ; is to perform such act.

2. Section 54 of the TP Act defines `sales' thus: Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

3. Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

4. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

5. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

6. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

7. Section 53A of the TP Act defines `part performance' - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance.

8. Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on `Conveyance'. In many States appropriate amendments have been made whereby agreements of sale acknowledging delivery of possession or power of Attorney authorizes the attorney to `sell any immovable property are charged with the same duty as leviable on conveyance.

9. Section 17 of the Registration Act, 1908 which makes a deed of conveyance compulsorily registrable. We extract below the relevant portions of section 17 Section 17 - Documents of which registration is compulsory- (1) The following documents shall be registered, namely:--… (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property……. (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

10. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.

11. Section 49 of the said Act (Registration Act, 1908) provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.

12. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property.

13. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.

14. Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent.

15. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property.

16. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another....

17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held: Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. 

18. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

19. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. Creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

20. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

21. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

INTERIM ORDER WHICH AMOUNTS TO FINAL RELIEF SHALL NOT BE PASSED

The Hon'ble Apex Court has consistently held that the Court should not pass an interim order which amounts to a final relief. Whether the petitioner is entitled for any relief has to be adjudicated upon at the time of final disposal of the writ petition. The Court should not pass an interim order without considering the issues of public interest, balance of convenience, as to whether prima facie case is made out; as to whether the party concerned could be compensated in terms of money etc., and other relevant considerations. 

SOURCE:- 
Assistant Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 330; 
State of Rajasthan v. Swaika Properties and Anr., AIR 1985 SC 1289; 
A.P. Christians Medical Educational Society v. Govt. of A.P., AIR 1986 SC 1490; State of Jammu and Kashmir v. Mohd. Yakoob Khan and Ors., (1992) 4 SCC 167; U.P. Junior Doctors Action Committee and Ors. v. Dr. B. Shitat Nandwani, AIR 1992 SC 671; 
Guru Nanak Dev University v. Parminder Kumar Bansal and Anr., AIR 1993 SC 2412; 
St. John's Teachers Training Institute (for Women) and Ors. v. State of Tamil Nadu and Ors., (1993) 3 SCC 595; 
Dr. B.S. Kshirsagar v. Abdul Khalik Mohd. Musa, 1995 Suppl (2) SCC 593; 
Bank of Maharashtra v. Race Shipping and Transport Co. (P) Ltd., AIR 1995 SC 1368; 
Commissioner/Secretary, Government of Health and Medical Education Department v. Dr. Ashok Kumar Kohli, 1995 Suppl (4) SCC 214; 
Shiv Shankar and Ors. v. Board of Directors, U.P. State Road Transport Corporation and Ors., 1995 Supp (2) SCC 726 ; 
Union of India v. Shree Ganesh Steel Rolling Mills Ltd., (1996) 8 SCC 347; 
State of Madhya Pradesh v. M.V. Vyavsaya and Co., AIR 1997 SC 993; 
Central Board of Secondary Education v. P. Sunil Kumar, (1998) 5 SCC 377;  
Stale of U.P. and Ors. v. Ram Sukhi Devi, 2004 AIR SCW 6955

CIVIL BREACH MAY ALSO CONSTITUTE CRIMINAL BREACH OF TRUST

READ FULL JUDGMENT
Justice P. Sathasivam, Justice B.S. Chauhan of Supreme Court of India in M/S Thermax Ltd.& Ors. vs K.M.Johny & Ors. on 27 September, 2011 The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under Section 420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence.

LAW OF ADVERSE POSSESSION ENCOURAGING CRIMINALS TO GET JUDICIAL PROTECTION 2011 SC

CLICK HERE TO READ FULL JUDGMENT
Supreme Court of India, State Of Haryana vs Mukesh Kumar & Ors. on 30 September, 2011, Bench: JUSTICE Dalveer Bhandari, and JUSTICE Deepak Verma, observed “The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. …. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people………….. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. ………….. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change……… If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.”

TRANSFER OF TITLE DEPENDS UPON INTENTION OF PARTIES, NOT MERELY BY REGISTRATION OF SALE DEED

Justice R V Raveendran and Justice Markandey Katju Janak Dulari Devi v. Kapildeo Rai, (2011) Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.

READ FULL JUDGEMENT

SETTLED POSSESSION AND UNLAWFUL EVICTION

JUSTICE Venkatachalliah, M.N. In STATE OF U.P. v. DHARMANDER PRASAD SINGH 1989 AIR 997, 1989 SCR (1) 176 while dealing with the rights of the State Government on cancellation of a lease granted by it, the Supreme Court held that the fact that the lessor is the state does not place it in any higher pedestal or better position. The Supreme Court observed thus: "Under law, the possession of a Lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited.... ...... Therefore, there is no question in the present case of the government thinking of appropriating to itself an extrajudicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It can resume possession otherwise than in accordance with law. Government is accordingly prohibited from taking possession otherwise than in due course of law."

JUSTICE K Singh, and JUSTICE M Kania, In KRISHNA RAM MAHALE v. SHOBHA VENKAT RAO AIR 1989 SC 2097, while considering the claim of a licence, who has been wrongly dispossessed by the licenser before the expiry of licence period, for restoration of possession, the Supreme Court observed thus: "It is well settled law in this Country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse of law." The Supreme Court held that the dispossessed licence was entitled to restoration of possession in spite of the fact that by then the term of licence has expired.

JUSTICE S.S.Ahmad, JUSTICE D.P.Wadhwa. In STATE OF HARYANA v. MOHINDER PAL 2003(1) WLC (SC) Civil 499 the Supreme Court rejected an appeal filed against a decision of the Punjab and Haryana High Court which had held that the Government cannot take law into its own hand while dispossessing persons in possession of land by putting up khokhas (on the ground that they were unauthorized occupants to Government land) but should have followed the due procedure prescribed by law. The Supreme court held that: ".... Question of examining the title of the parties does not arise at all as admittedly respondents were in possession of the property in question and put up structures thereon. On that admitted position, High Court took the view that ejectment of the respondents forcibly without due recourse of law was not in due process. No exception can be taken to that view at all. In fact, this view is consistent with what has been stated by this Court........"

JUSTICE M Venikatachaliah, and JUSTICE D V Rao, In PATIL EXHIBITORS PVT. LTD. v. BANGALORE CITY CORPORATION AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533 a Division Bench of Karnataka High Court observed thus: "It is part of the concept of "Rule of Law" that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by Courts. Such a right in the respondent cannot be recognised regardless of the question whether or not the appellant (Licencee) 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 litigious 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 not forcible dispossession. .... Under our jurisprudence, even an unauthorized occupant can be evicted only in the manner authorized by law. This is the essence of the Rule of law."

Hegde, K.S. SIKRI, S.M. SHELAT, J.M. In MUNSHI RAM v. DELHI ADMINISTRATION 1968 AIR 702, 1968 SCR (2) 408 the Supreme Court succinctly stated the legal possession regarding settled possession thus; "It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted endue course of law, he is entitled to defend his possession even against the rightful owner. But, stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitle to defend against the rightful owner much be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary, such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force."

FAZALALI, SYED MURTAZA, BHAGWATI, P.N., KRISHNAIYER, V.R. Supreme Court in RAM RATTAN v. STATE OF UTTAR PRADESH 1977 AIR 619, 1977 SCR (2) 232 as follows: "..... It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or prices of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the owner should dispossess the trespasser by taking recourse to the remedies available under the law..... it may not be possible to laydown a rule of universal application as to when the possession of a trespasser becomes complete and accomplished"

V. Gopala Gowda, J. D. Narayanappa vs The State Of Karnataka, ILR 2005 KAR 295, Having regard to the principles laid down in the above said decisions, we may conveniently cull out the legal position in regard to a true owner vis-a-vis a trespasser as under.
i) A true owner (even if it is the State or a Statutory body) has no right to forcibly dispossess an unauthorized occupant (including a trespasser) in settled possession, otherwise than in accordance with law.
ii) A trespasser or unauthorized occupant in settled possession can be dispossessed, only in accordance with an order/decree of a competent Court/tribunal/authority or by exercise of any statutory power of dispossession/demolition entrusted to the State or statutory Authority.
iii) A person in unauthorized possession shall be deemed to be in settled possession, if his entry into the property was lawful or authorized.
iv) a person in unauthorized possession, whose entry into the property is illegal or unauthorized, can claim to be unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner.
v) A surreptitious and unauthorized entry into another's land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to settled possession only when the true owner having knowledge of it, acquiesces in it.
vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession. The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorized construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorized occupant.
vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 years, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question."

FAMILY ARRANGEMENT NEED NOT BE REGISTERED

Fakirappa Bailappa Kambar v. Kristappa Bailappa Kambar, ILR 1985 KAR 3063. Wherein the Division Bench of Karnataka High Court has held as follows: "It is open to the members of the coparcenary to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether co-owners in exclusive possession of different portions of joint family property held the same in the partition or under an arrangement as to the possession, depends upon the intention to the parties which has to be gathered from the facts and circumstances of each case. Where direct evidence of intention is available, there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties, separately may be taken into consideration in arriving at the conclusions but that is not conclusive... where exclusive possession of land by co-owners is not in conformity with the shares of respective parties, generally, the indication is that it is not a partition, but it may be an arrangement not intended to be permanent. Therefore, the fact that the parties were in possession of different properties and different properties have been entered in their individual names in the record or rights, is not by itself sufficient to hold that there was such a partition .... Nothing turns out from the long duration. It depends upon the affinity and nature of relationship of the parties. A provisional arrangement which for some reason continued for a long time without objections does not take away its provisional character and make it permanent. There must be some other evidence indicating that the parties have been living separately under a permanent arrangement or partition".


Dayal, Raghubar Supreme Court in Bharat Singh v. Mst Bhagirathi, 1966 AIR 405, 1966 SCR (1) 606 wherein Hon'ble Supreme Court has observed as follows: "There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the Joint Hindu Family to prove it. The mere fact that after the death of the father mutation entry was made in favour of three brothers and indicated the share of each to be one-third, by itself could be no evidence of the severance of the joint family which, after the death of the father consisted of the three brothers who were minors" …. The appellants filed a suit for a declaration that the entry in the name of the respondent in the Jamabandi papers of certain villages was incorrect and alleged that they along with their brother, the husband of the respondent, constituted a joint Hindu family, that their brother died as a member of the joint Hindu family and thereafter his widow- the respondent--lived with the appellants who continued to be owners and possessors of the property in suit, the widow being entitled to maintenance only, and that by mistake the respondent's name was entered in village records in place of the deceased husband. The respondent contested the suit alleging, inter alia, that her husband did not constitute a joint Hindu family with the appellants at the time of his death and also that the suit was barred by time as she had become owner and possessor of the land in suit in 1925 on the death of her husband when the entries in her favour were made, and the suit was brought in 1951. The respondent had admitted in certain documents about the existence of the joint Hindu family or a joint Hindu family firm. The trial Court decreed the suit, which on appeal, the High Court set aside. The High Court did not use the admissions of respondent as she, when in the witness box, was riot confronted with those admissions; and as those documents, if read as a whole did not contain any admissions on behalf of the respondent that there was any joint family still in existence. In appeal by certificate to this Court. HELD : (i) There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of joint Hindu family to establish it. The mere fact of the mutation entry being made in favour of the respondent on the death of her husband was no clear indication that there was no joint Hindu family of the appellant, and the respondent's husband at the time of the latter's death. 


Fazalali, S Murtaza Supreme Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 AIR 807, 1976 SCR (2) 202  wherein the Hon'ble Supreme Court has laid down as follows : "The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore, not compulsorily registrable. The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement".
 The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth, instead of concentrating tho same in the hands of a few, is a milestone in the ad ministration of social justice. Where by consent of the parties a matter has been settled, the courts have learned in favour of upholding such a family arrangement instead of disturbing it on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or 1 formal defect, the rule of estoppel is applied to shut out the plea of the person who being a party to the family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
(i) The family settled must be bona fide so as to resolve family disputes. (ii) It must be voluntary and not induced by fraud, coercion or undue influence; (iii) It may be even oral, in which case and registration is necessary; (iv) Registration is necessary only if the terms are reduced to writing but where the memorandum has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself do not create or extinguish any rights in immovable property and, therefore. does not fall within the mischief of s. 17(2) of the Registration Act and is not compulsorily registrable; (v) The parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. But, even where a party has no title and the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then, the antecedent title must be assumed and the family arrangement will be upheld by the courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement. such family arrangement is final and binding on the parties to settlement.

K Ramaswamy, B Hansaria Hon'ble Supreme Court in Digambar Adhar Patil v. Devram Girdhar Patil, AIR 1995 SC 1728, 1995 (2) SCALE 802, 1995 Supp (2) SCC 428 wherein Hon'ble Supreme Court has held that under Hindu law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof.

KARNATAKA LAND LAWS