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 partySpecific 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. 59Whether 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 contractNo 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 shareIn 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 PerformanceNotwithstanding 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 PURCHASERSeller 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 REFUSEDNo 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 REFUSEDSuit 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 BACKRespondent'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: 11/5/2005TRUE 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 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 case law index on civil procedure code

CIVIL PROCEDURE CODEcompiled bySridhara 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 properILR 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 DISCIPLINEApplication 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 SALESpecial 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 recordILR 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 MODE OF MANAGING A RELIGIOUS OR CHARITABLE INSTITUTION

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 DIFFERENCE BETWEEN LEASE AND LICENCE

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 such licence was given to the petitioners to run the theatre for and on behalf of him. If really the petitioners were permitted to run the theatre for and on behalf of the 3rd respondent, there was no occasion for the petitioners to pay such huge amount to the 3rd respondent. On the other hand, the 3rd respondent himself would have paid amount to the petitioners for the services rendered by them and the money realised from the sale of tickets would have been taken by the 3rd respondent. The stand taken by the 3rd respondent in this regard is wholly untenable and such a stand is taken to suit his convenience. The 3rd respondent has admitted that the monthly rental of the premises would be Rs. 8,823.52. ... It is no doubt true that the lease deed is not registered and it is void. Non-registration of lease deed does not take away the relationship of landlord and tenants. Therefore, it is held that the petitioners are statutory tenants under the 3rd respondent and their possession is lawful. . . . Admittedly, the theatre is a non-residential building. The monthly rental of the theatre is Rs. 8,823.52 p.m. for a period of 68 months. Hence, the Karnataka Rent Control Act is not applicable. Therefore, for the eviction of the petitioners, the 3rd respondent has to file a suit for ejection, after determining lease of the premises. .... The petitioners took possession of the theatre by virtue of the lease deed, pursuant to which possession was delivered to them. Thus, they entered into the possession of the theatre lawfully. After the expiry of lease period, their continuance in possession will not be unlawful until they are evicted by due process of law as they are the statutory tenants under the provisions of the Karnataka Rent Control Act. In this view of the matter, both the impugned endorsement and the order of the Appellate Authority are bad in law and are liable to be quashed. — R. Sreekanth and Another v The Divisional Commissioner, Bangalore Division, Bangalore and Others, 2003(2) Kar. L.J. 231.

When a person remains in possession after termination of tenancy, he becomes statutory tenant. Although he can remain in possession he cannot enforce the terms of original tenancy. — Anand Nivas Private Limited v Anandji Kalyanji's Pedhi and Others, AIR 1965 SC 414.

There is a distinction between a tenant continuing in possession after the determination of the term with the assent of the land lord and the tenant doing so sans his consent. The former is a tenant at sufference and the later a tenant holding over. Mere acceptance of amounts equivalent to rent by land lord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on well

defined grounds as in the Act. If the tenant asserts that the land lord accepted the rent not as Statutory Tenant but only as a legal rent indicating his assent to the tenants continuing in possession it is for the tenant to establish it. Where he fails to establish it cannot be said that there was holding over by him. — Bhaitxmji Lakhamshi v Himdatlal Jamnadas Dani, AIR 1972 SC 819.

NOTICE TO QUIT

a) A notice to quit must be interpreted not with a desire to find flaws in it which would render it defective, but it must be construed ut res magis valeat quam pereat. — Bhagabandas Agarwala v Bhagwandas Kanu and Others, AIR 1977 SC 1120

b) A person in occupation of property under an unregistered but compulsorily registerable lease does not become a tenant from month to month and a notice terminating the tenancy under Section 106 of the T.P. Act, is not necessary. — H- Mohammad Khan v H.K. Copal Shetty, 1963(2) Mys. L.J. 494.

c) A statutory tenant is not entitled to notice as envisaged by Section 106 if the transfer of property before an action in ejectment is commenced against him under any of the enabling provisions of the relevant rent restriction Act. — Firm Sardarilal Vishwanath v Pritam Singh, 1978(2) Kar. L.J. Sh. N. 25 (SC).

d) Before maintaining a petition for eviction under Section 21(1) of the Karnataka Rent Control Act, 1961, it is not necessary for the landlord to determine the contractual tenancy by issuing to the tenant a notice under Section 106 of the T.P. Act Papinayakanahalli Venkanna and Others v Janadri Venkanna Setty, AIR 1981 Kant. 20 (FB)

e) In order to get a decree or order for eviction against a tenant under any State Rent Control Act, it is not necessary to give a notice under Section 106 of T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage, because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to find the proceedings on the basis of the determination of the lease by issue of notice in accordance with Section 106 of T.P. Act Dhanapal Chettair v Yasoda, 1980(1) Kar. L.J. Sh. N. 90 (SC).

f) Ground of Eviction need not be set out in the notice. Reasons stated in notice does not estop landlord from pleading and proving another reason. Issue of second notice to quit not necessarily waiver of earlier notice. See Kamataka Rent Control Act, Sections 11, 21(d) and 26. — Raghavendra v Maratha Co-operative Credit Bank Limited, 1977(1) Kar, L.J. 382.

g) It must be deemed that there is due service of the notice of termination of a tenancy where the letter is sent by registered post, it being properly addressed, pre-paid and the letter contains the document. The contrary that is required to be proved to take away the presumption is with reference to the four requirements referred to above. It is only to meet the contingency of a person who is to be served with the notice trying to evade it, that the service shall be deemed to have been effected if the four conditions are fulfilled. Section 106 Para 2 does not prescribe that the notice should be sent by registered post; it could also be sent by ordinary post. Where the notice is sent under certificate of posting a presumption arises under Section 114, Evidence Act, that there has been due service. If tender or delivery to the party is known as impracticable, it is open to the landlord to adopt the procedure of affixture. —Achamma Thomas v E.R. Fairman, 1969(2) Mys. L.J. 179.

h) Notice by telegram : A notice through counsel by telegram determining the tenancy complies substantially with Section 106- — Aldelli Gurusidappa v Veerabhadrappa, 1975(1) Kar. L.J. Sh. N. 76.

i) Notice terminating tenancy should not be interpreted with strictness but should receive a liberal interpretation. If the.notice is sufficient to give impression that the tenancy is terminated at the end of the tenancy month, the notice is valid — Cherilal K. Wadhva v R. Chandrasekhariah, 1969(2) Mys. LJ. 564.

j) Person in occupation under an unregistered but compulsorily registerable lease does not become a tenant from month to month and notice terminating tenancy is not necessary. — V. Ramu v M.V. Venkatappa, 1971(1) Mys. L.J. 443,

k) Possession after expiry of lease under unregistered deed notice to quit not necessary. — Doddappa alias Sidramappa Nagappa Yatgiri and Others v Basavanneppa Basappa Chinniwalar, 1978(1) Kar. LJ. 414: AIR 1978 Kant. 140.

l) So long as there are words in the notice, justifying the view that the notice itself determined the tenancy, the mere fact that there is no termination in so many words will not make it any the less a notice under Section 106. — Sheshacharya Balacharya Morab v MaUawwa, 1965(1) Mys. LJ. 697.

m) When a suit for eviction and mesne profits was instituted without giving notice to quit under Section 106 of the Transfer of Property Act against a tenant in occupation of the rented property after expiry of the lease the suit would not be maintainable. Such tenant is a tenant holding over and notice of eviction under Section 106 of the T.P. Act was necessary. It cannot be said that on expiry of the specified period under the unregistered Lease Deed executed before the filing of the suit he became tenant at sufference under Section 111 (a) of the T.P. Act and the suit was maintainable without notice under Section 106 of that Act. — Satish Chand Makhan v Govardhan Das Eyas, AIR 1984 SC 143

n) When the defective notice given by the tenant if accepted by the landlord, it will determine the tenancy. — Calcutta Credit Corporation Limited and Another v Happy Homes (Private) Limited, AIR 1968 SC 471.

o) When the landlord fails to serve notice under Section 106, it does not mean that such failure estops him from claiming a decree for eviction of tenant. — Krishanadeo Narayan Aganval v Ram Krishan Rai, AIR 1982 SC 783.

p) When the notice terminating tenancy does not grant longer time for handing over possession, it does not mean that such failure affects the validity of the termination of the tenancy. — Arjunsa Shidramasa Mirajkar v Ganapatsa Hanmantsa Bakale and Others, 1964(2) Mys. L.J. 164.

q) Where the monthly tenancy was according to English calendar a notice to determine possession on or before 30-11-1967 is valid. Eventhough the quit notice asked the tenant to vacate the house on or before 30-11-1967, the tenant was entitled to remain in possession till the midnight of 30-11-1967 and thereafter vacate it and still comply with the notice to quit. The notice was thus perfectly valid and complied with the requirements of Section 106 of the T.P. Act Peter Paul Coelho and Others v Constance D'Souza and Others, 1979(1) Kar. L.J. 219 : AIR 1980 Kant. 28.

r) When a lease terminates by efflux of time, notice of termination is not required. See Karnataka Rent Control Act, 1961, Section 31. — Raghunandan Prasad Garg v Sreeramiah Setty and Others, 1970(2) Mys. L.J. 250.

s) Where a lease is for a specified term it expires by efflux of time in view of Section 111(a). Therefore service of a notice under Section 106 is not necessary for termination of lease. — Smt, Shanti Devi v Amal Kumar Banerjee, AIR 1981 SC 1550.

t) A notice which is defective may still determine the tenancy if it is accepted by the landlord. A notice which complies with the requirements of Section 106 of the Act operates to determine the tenancy, regardless of the fact whether the party is served with the notice or not or whether the party assents thereto or not — Calcutta Credit Corporation Limited v Happy Homes (Private) Limited, AIR 1968 SC 471.

u) Once a notice is served terminating the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is terminated, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. — Calcutta Credit Corporation Limited v Happy Homes (Private) Limited, AIR 1968 SC 471.

v) Landlord giving first notice to quit on grounds of arrears of rent tenant fails to vacate and land lord gives second notice after one year and demands rent for period between 1st and 2nd Notices. In a suit for eviction land lord claims damages for use and occupation for period subsequent to second notice. It was held that the first notice was waived and the land lord had treated the tenancy as subsisting. — Tayabali Jaferbhai Tankiwala v M/s. Ahsan and Compamj, AIR 1971 SC 102.

DENIAL OF TITLEA person cannot be given the benefit of right to continue as a tenant and also contest the title of the landlord at the same time. When the tenant disputes the title of the landlord, irrespective of the technicalities of Section 106 of the T.P. Act, the landlord should be entitled to possession. — Rachavva and Another v Kariyappa Siddappa and Another, 1981(1) Kar. L.J. 186.

The experience shows that in many HRC cases, tenants take up a plea of denying the title of landlords and also set up title in themselves. Ultimately, those contentions are found to be baseless. These pleas are taken up in most cases only to prolong the litigation and as by raising such a plea, the tenant is not going to lose anything. On the contrary, he will gain time. The effect of such contentions is that the proceedings get prolonged. Even after the order of eviction is passed, and sometimes even during the pendency of the eviction proceedings, suits are filed by the tenants claiming title in themselves and denying the title of the landlord and even setting up a title in third parties. In order to curb such ungoing to cost him with the order of eviction and also to see that the objects of the Karnataka Rent Control Act are given effect to, it is necessary to make a provision enabling a landlord to make it a ground for eviction in the event the denial of title of the landlord by the tenant is found to be not bona fide even if such a denial is made in the objection to the eviction petition filed under Section 21(1) of the Karnataka Rent Control Act. — Smt. Govindamma v Murugesh Mudaliar and Others, ILR1990 Kar. 2639 (DB)

MANUFACTURING PURPOSE AND LEASE PERIOD

To constitute 'manufacture' there must be such transformation in the change out of which a new and different article must emerge having a distrinctive name, character or use. Generally coffee includes coffee powder. When coffee seeds are powdered without adding anything more, the resulting powder cannot be said to be another article with a distinctive name, character or use. The process out of which coffee seeds are converted into powder is not 'manufacture'. Where the tenant had taken the premises for grinding coffee seeds into powder and selling them, he cannot be said to be engaged in the manufacture of coffee powder and notice to quit giving 15 days time is sufficient. — Meghraj v Seshagiri Rao B., AIR 1977 Kant. 163

To be understood in popular sense in accordance with meaning in dictionary — Mere running of printing press cannot tantamount to engagement in process of manufacturing. Held: The expression 'manufacturing purpose' as used in Section 106 has to be understood in a popular sense in accordance with the meaning given in the Dictionaries. Therefore, the said expression cannot be construed keeping in view the special definition set out to those expressions in special statutes like Factories Act. According to the Dictionary meaning, the word 'manufacture' implies a change. But every change is not manufacture. For identifying a given change in an article as manufacturing, there must be a transformation, a new and different article must emerge having distinctive name, character or use. Keeping in view the facts of the present case, mere running of a printing press cannot tantamount to an engagement in any process of manufacturing though the process

of printing results in some change on the paper surface over which the printing is done. — Virupakshaiah alias Veeraiah v Shivaputrappa Basappa Golappanavar, 1996(5) Kar. L.J. 53B.

A lease of premises for carrying on business of retreading of tyres is not a lease for a manufacturing purpose, within Section 106 of the Transfer of Property Act. The broad test for determining whether a process is manufacturing process if whether it brings out a complete transformation for the old components so as to produce a commercially different article or commodity. Retreading process does not cause the old tyres to lose its original character. Definitions of manufacture in other enactments such as the Factories Act or the Excise Act should not be blindly applied to the Transfer of Property Act. — P.C Cheriyan v Darfi Devi, 1979(2) Kar. L.J. Sh. N. 99 (SC).

When a lease is granted, the test to ascertain whether the lease is granted for manufacturing process, the following points should be noted.—1. There must be evidence that a certain commodity was manufactured;2. That the process of production must involve either labour or machinery;3. That the product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use.where lease was granted for running a flour mill wherein wheat waft transformed by manufacturing process which involved both labour and machinery, into flour it was held that all the three tests were fully satisfied and hence the lease was one for manufacturing process and could be terminated by giving 6 months notice under this Section. — Idandas v Anant Ramchandra Phadke (dead) by LRs., AIR 1982 SC 127

Section 106 — The lease deed was silent in regard to the purpose for which the premises was leased. It showed that what had been leased was shop premises. It did not say that what had been leased was a workshop premises. The word "Shop" ordinarily indicated that it was a place for buying and selling goods. The Court below rightly came to the conclusion that the lease was not for a manufacturing purpose, though the Appellant infact might have used the premises for a manufacturing purpose a couple of years after the premises was leased to him. As the lease was not for a manufacturing purpose, the notice of 15 days given in the case was proper and valid in Law. — Vittal Narayana v Channappa, 1973(2) Mys. LJ. Sh.N.12.

Where the lease was taken for carrying on bakery and saw mill business, if a lease for manufacturing purpose and the notice of termination require is of 6 months duration. Notwithstanding what is contained in Section 107, the Provisions of Sec. 106 of the Act will apply to a manufacturing lease, whether the lease deed is registered or unregistered, so as to make it a lease from year to year for the purpose of that Section, (i.e) to control duration of the period of the notice. — Rev Fatner John Augustine Peter Miranda v N. Datha Naik, 1971(2) Mys. LJ. 204

RELATIONSHIP OF TENANT AND LANDLORD

The H.R.C. Tribunal has given a finding that there is no relationship of landlord and tenant in the earlier proceedings between the same parties. Subsequent thereto the present suit came to be filed and the finding given by the H.R.C. Tribunal has become final and conclusive. Therefore, when on the question of legal-jural relationship between the parties competent Court of law has already given a verdict, despite the said verdict if plaintiff were to repeat and describe the relationship as landlord and tenant it would be only a contention without legal basis and non-description of the defendant's position as that of a trespasser also does not appear to be a fatal one since the suit is based on title and if some other person is in possession the owner of the property can always maintain a suit for possession basing on the title. Hence, under the circumstances suit is maintainable. — M.S. Narayana Rao v S.K. Pundareeka, 2001(3) Kar. LJ. 339A (DB).

ATTORNMENT TO SUBSEQUENT LANDLORD

The month of tenancy was from 27th of each month and was to expire on 27-7-1974. Respondent purchased the property on 17-4-1967 and the tenant attorned to the purchaser. Held, attornment implies a continuity of tenancy created by the original landlord in favour of the tenant and the month of tenancy does not get altered. Therefore, the notice to quit issued by the purchaser requiring the tenant to quit and deliver possession on the expiry of 16-11-1967 on the basis that the tenancy was from the 17th of each month by virtue of the attornment was not according to law and the purchaser acquired no right to evict the petitioner. As a purchaser with knowledge of the petitioner being in possession as tenant, the respondent was bound by the terms of the lease. — Karupakale R. Govindiah v C. Veerabhadriah, 1974(2) Kar. LJ. Sh. N. 135.

Where sale of a tenanted premises recited that vendor has attorned the tenants to the purchaser and the tenant attested the sale deed, it was held it proved attornment of tenancy to the purchaser. Sohanraj v Kanyalal Daga, 1979(1) Kar. L.J. Sh. N. 45.

Rights of lessor's transferee to rent — Transfer of property by lessor without notice to lessee creates no privity of estate between lessee and transferee — Attornment of tenancy is legal pre-condition in case of transfer of property, if contract of lease is to be created between lessee and transferee — If lessee, not having notice of transfer, had paid rent to lessor even after transfer, lessee shall not be liable to pay such rent over again to transferee. Attornment of tenancy is a legal precondition in cases where changes take place with regard to the transfer of ownership. The tenancy is a legal obligation between two parties and if a new person comes into the shoes of the landlord, it is very necessary that notice of this fact be given to the opposite party and that the tenancy be attorned. In the absence of this being done, the right on the part of the new landlord to demand and receive the rent cannot be enforced. . . . The record clearly indicates that the petitioner had no notice of the change of ownership nor was the tenancy attorned. . . . The

decree passed against the petitioner is vitiated in so far as it is impermissible to sustain that decree both on facts and in law. — T. Ratna Pandyan v P. Subramanyam Chetty, 1997(2) Kar. L.J. 365.

PERMANENT LEASE

A lease of 1914 for erecting a factory and appurtenant buildings stated: it was to be for a term of 20 years certain, on payment of Rs. 350 as annual rent; even though the lessee may not continue to occupy the land, the lessee was granted the right to continue the lease as long as he desired to do so; on his choosing to continue to enjoy the leasehold, the lessee was obliged to pay annually the enhanced rent of Rs. 400 for the next ten years after October 1,1934, and after the expiration of ten years, the rent was further enhanced to Rs. 500 per annum; the lessee was given the option to give up the lease at any time after October 1, 1934 without further liability; the lessor bound himself not to call upon the lessee at any time to give up possession of the leasehold as long as the lessee was prepared to observe the terms of the lease. The lease was heritable and assignable. Held, the lease was intended to create a permanent lease and after the lapse of the first 20 years did not become a tenancy at will or even one for an indefinite term and therefore a lease for the lifetime of the grantee. Where land is let out for building purposes without a fixed period, the presumption is that it was intended to create a permanent tenancy. This presumption was not weakened by the fact that the lessee had stipulated to be entitled to give up possession if and when he decided to do so. It was an advantage specifically reserved to the lessee and did not confer any corresponding benefit on the lessor. That the lease was not intended to be for the life only of the grantee was clear not only from the facts, that it was meant for building purposes, was heritable and assignable and had*not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least 20 years. — Sivayogesivara Cotton Press, Davangere and Others v M. Panchaksharappa and Another, 1961 Mys. L.J. 1043 (SC).

No permanent lease could be granted either orally or even by means of an unregistered deed. Once it is held that the lease as a permanent lease is invalid, then that lease will have to be treated as a precarious lease. Where a lease is invalid (by reason of absence of a registered instrument as required by Section 107 of the Transfer of Property Act), the fact it is invalid in law is a matter which the lessee must be presumed to know and he is not entitled to compensation for the permanent structure erected by him. He is only entitled to have it removed. — Rama Devadiga v Ganapami Karantha, 1962 Mys. L.J. 861: ILR 1962 Mys. 250.

UNLESS THE LEASE IS DETERMINED IN ONE OF THE BODIES UNDER SECTION 11 OF T.P. ACT, THE LANDLORD WOULD NOT BE ENTITLED FOR RECOVERY OF POSSESSION

Section 21 Karnataka Rent Control Act refers to recovery of possession of any premises by the landlord, before the landlord approaches the Rent Control Court

under Section 21(1), it is necessary that he should be entitled for recovery of possession. Unless the lease is determined in one of the bodies under Section 11 of T.P. Act, the landlord would not be entitled for recovery of possession, hence an action under Section 21 Rent Control Act cannot be instituted without first determining the lease. — Church of South India Trust Association v Sampangiraman, 1979(1) Kar. LJ. 85.

CONTRACTUAL TENANCY – CONTRACT TO CONTRARY

Section 106 of the T.P. Act applies to a contractual tenancy, though governed by Rent Control Act. — Bhaiya Punjalal Bhagwanddin v Dave Bhagwatprasad Prabhuprasad and Others, 1962 Mys. LJ. 712 (SC).

When the compromise petition which was incorporated in compromise decree provided that the transferee should collect arrears of rent due, it is a contract to the contrary and hence the transferee is entitled to arrears of rent due before transfer. — Girdharilal (dead) by L.Rs. v Hukum Singh, AIR 1977 SC 129.

Second para of Section 110 though refers to a lease for a year or number of years, principles reflected therein will apply even when time limited by lease is a month or a week or a number of months or weeks — Whether the tenancy is for year/s or month/s or week/s, principles contained in para 2 would be subject to an agreement to the contrary — Where the duration of lease was for period from 1-11-1974 to 31-1-1975, tenancy holding over was held to commence from 1-2- 1975 and such tenancy would be from month to month and that it should be terminated at the end of the month of the tenancy — Case-law discussed. — S.P. Gurjar v Muddanna Shetty, 1990(2) Kar. L.J. 213 : ILR 1990 Kar. 3099.

RENT ACCEPTANCE – WAIVER OF NOTICE

The lessee was holding certain land of lessor for running a mill since 1905. In 1936, the lessee transferred his rights to a Company. In the lease deed there was not only an express clause under which the lessee was entitled to remove the stocks and materials within 4 months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings etc., would become the property of the lessor. The lessor sent to the Company a notice terminating the lease deed on the ground of breach by the Company of certain covenants contained therein. The time was allowed to the Company for the removal of machinery stores etc. The Company, however, secured an order from a Civil Court prohibiting the lessor from ejecting it. In land acquisition proceedings at the instance of Company for its own purpose, the questions were whether there was waiver of notice by acceptance of rent by landlord, whether there was forfeiture of tenancy under Section 111(g) of the T.P. Act and whether there was compliance with Section 114-A of the T.P. Act. The Supreme Court held that there was no waiver of notice. When there was no evidence to show that the rent was accepted at any time after the notice was given

to Company, and secondly as the rent was accepted by lessor under protest, it could not amount to waiver because there was no intention on the part of the lessor to treat the lease as subsisting. — Basant Lal (dead) by L.Rs. and Another v State of Uttar Pradesh and Another, AIR 1981 SC 170

When the permanent lease is void for want of sanction, acceptance of rent by landlord makes the tenant a monthly tenant. Non mention of year in the notice can be reasonably construed. Where the intention was clear, not stating that the tenancy is terminated not material. — 1973(2) Mys. L.J. Sh. N. 300.

TRUST PROPERTY

When there are several trustee landlords one of them can terminate tenancy — 1962 Mys. LJ. 57.

LEASES OF INDEFINITE PERIOD

The rule of construction embodied in Section 106 of the T.P. Act is applicable not only to express leases of indefinite period but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. — Ram Kumar Das v Jagdish Chandra Deo, Ohabal Deb and Another, AIR 1952 SC 23

LESSEE AND THE ASSIGNS

Where the lease is with the lessee and the assigns, the lessee and assigns being called lessees, the lease permits sub letting, and consent is lessor is not necessary for sub letting. — 1964 Mys. L.J. Supp. 112.

In the case of a lease there is privity of contract between the lessor and the lessee and the lessee cannot divest himself of his liability to the lessor by merely making an assignment of the lease. Assignment of the lease may result in primity of estate between the assignee and the lessor inconsequence of which both the assigning lessee and assignee become liable to the lessor for the payment of rents. — Devidasa Bhatta v B. Ratnakara Rao and Another, 1965(1) Mys. L.J. 731.

The words "Such consent, however, not to be unreasonably withheld in the case of respectable or responsible persons" contained in the covenant in a lease allowing the lessee to assign his interest only with the lessor's written consent does not amount to a separate or independent covenant by the lessor that he would not refuse consent except upon reasonable grounds in the case of respectable person, but they limit or qualify the lessor's covenant not to assign the defined premises without the consent in writing of the lessor. — Kamala Ranjan Roy v Baijnath Bajoria, AIR 1951 SC 1

When the entire interest in land is transferred by lessee with reservation to take back' possession on failure of transferee to discharge lessee's liability towards lessor within stipulated time and the lessor accepts part payment from transferee without recognising him as debtor, the lessee has right to recover possession according to agreement between the lessor and the lessee. — Parkash Chand Khurana v Hamam Singh, AIR 1973 SC 2065.

When the tenant has sublet the premises and the subtenant caused material damage to building, the landlord can evict the tenant on the grounds that the subtenant has caused damage to the building. There is no privity of contract between landlord and subtenant. The tenants obligation to maintain the building in good condition continues even after creation of sub-tenancy. The tenant is responsible for wrong acts of subtenant and so liable to be evicted for damage caused by subtenant — M/s. Laxmi Narain Gauri Shankar v Gopal Krishan Kahoria and Another, AIR 1987 SC 8.

LEASE BY AFFLUX OF THE TIME

Where the tenant did not vacate the premises on the expiry of the lease by afflux of the time under Section 111(f), T.P. Act, and the case is governed by the provisions of the T.P. Act, the continuance in possession of the tenant after the expiry of the lease is unauthorised and wrongful and a decree for damages are mesne profits is rightly awarded against him. — Shyam Charon v Sheoji Bhai, 1978(1) Kar. LJ. Sh. N. 10 (DB).

CLAIM OF TITLE IN HIMSELF ON THE PART OF THE LESSEE

Where the very case of the landlord is based on a contractual tenancy, it must be determined by a notice in accordance with Section 106, T.P. Act, for the landlord to earn the right to obtain possession of the leased premises under the Rent Control Act. This point was allowed to be taken in revision for the first time. Claim of title in himself on the part of the lessee would not ipso facto put an end to the lease. It confers a right on the lessor, if he so elects, to determine the lease by a notice as required by Section 111(g) of T.P. Act. — Dyamappa Butti v Somappa, 1968(1) Mys. LJ. 221.

NOTICE CLAIMING RENT AT THE ENHANCED RATE

If a notice claiming rent at the enhanced rate is given by a landlord to his tenant giving him the option to vacate in case he is unwilling or unable to pay the enhanced rent and the tenant continues to be in occupation of the premises without protest, the landlord would be entitled to recover rent at the enhanced rate, unless the Court finds that the enhanced rate is itself unreasonable or penal. Where a tenant denied the right of the landlord to enhance the rent unilaterally and refused to pay enhanced rent and the landlord did not take steps to evict the tenant, the tenant is not liable for the enhancement. The landlord could not unilaterally determine what is the fair or reasonable rent for the premises and claim it from the tenant so long as the relationship of landlord and tenant between them had not come to an end. — J.P. Sagar v State of Mysore, 1964 Mys. L.J. Supp. 605.

NOTICE IN THE ORIGINAL WRITTEN LEASE COULD NOT BE IMPORTED INTO THE NEW TENANCY CREATED BY HOLDING OVER

A lease of a premises for a period of 10 years on an annual rent of Rs. 100 expired on 15-10-1958. The lease provided that if after five years from the date of the lease the landlord wants the premises for constructing a house for his own use he should ask for the premises after giving the tenant six months' notice. That occasion did not arise and the tenant continued in possession even after the expiry of the period of lease. On 15-10-1965 the tenant agreed to pay enhanced rent of Rs. 125 per year and an endorsement was made on the original lease deed. On 19-5-1969 the landlord served notice on the tenant to surrender possession after six months. On the expiry of the period of six months, the tenant refused to surrender possession. Held, (1) The notice issued was not in accordance with the terms of the lease. (2) That the term as to notice in the original written lease could not be imported into the new tenancy created by holding over and the necessary consequence was that the notice issued by the landlord was invalid. — E. Keshavayya v R, Namsimha Prabhu, 1975(2) Kar. L.J. 232 : AIR 1976 Kant. 41.

LEASE OF FISHERY

A lease of fishery which is immoveable property as defined by Section 2(6) of the Registration Act, if it is for any term exceeding one year or reserves a yearly rent should be registered by Section 17(l)(d) of the Indian Registration Act, 1908 and Section 107 of the Transfer of Property Act. — Bihar Eastern Gangetic fishermen Co-oper.ative Society Limited v Sipahi Singh, AIR 1977 SC 2149.

ALTERING EXISTING REGISTERED LEASE DEED

Any agreement which alters the essential terms and conditions of an existing registered lease must be registered. — Sunil Kumar Roy v M/s. Bhaiura Kankanee Collieries Limited, AIR 1971 SC 751.

HEREDITABILITY OF TENANCY OF INDEFINITE TERM

The Courts in India cannot apply the principle of Law that if the term mentioned in a lease is definite the interest of the lessee is heritable and if the term mentioned is indefinite, the interest of the lessee is not heritable. Whether the interest is heritable entirely depends on the wordings of the document and the intention of the parties. — Narayan Narasimha Deshpandey v Kasiroya Sangappa, 1960 Mys. L.J. 530.

LEASE — OF IMMOVABLE PROPERTY FOR PERIOD NOT EXCEEDING ONE YEAR

Registration and attestation of lease deed not required — Examination of attestor not required to prove execution of such deed. Held: Section 107 of the Transfer of Property Act deals with the procedure as to how leases have to be made. Section 107 does not require attestation of a lease not exceeding one year. When the lease deed requires no attestation, Section 68 of the Evidence Act will not be applicable

and lease deed could be proved by examining the scribe as done in this case. — T. Anthonidas alias T.A. Das v S.P. Mariyappa, 1996(3) Kar. LJ. 329A.

Lease of immovable property from year to year — Mandatory that such lease should be by registered instrument — Where it is not so made, tease is to be taken as monthly lease for purpose of Section 106 of Act. Held: Under Section 107 of the Act, it has been provided that a lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In view of this statutory provision, it was mandatory to execute a registered instrument, if the tenancy was contemplated to be annual in nature. In the present case, since admittedly it was not made by a registered instrument, the lease cannot be taken to be an annual lease. Therefore, necessarily it has to be taken as a monthly lease for the purpose of Section 106 of the Act. — Virupakshaiah alias Veeraiafi v Shivaputrappa Basappa Golappanavar, 1996(5) Kar. L J. 53A.

VOID LEASE – REGISTRATION COMPULSORY

Where a verbal agreement was made for the grant of a lease for 5 years and in anticipation of execution of a lease deed, the lessee was put in possession by the lessor who received 3 months rent as advance but no lease deed was executed, it was held that lease was void because of the prohibition under this Section. — National Textile Corporation Limited v Malathesha Enterprises and Another, 1980(2) Kar. LJ. 335.

When there is a lease agreement in respect of a building for indefinite period for carrying on business in which the rent payable by the lessee is agreed to be settled on basis of percentage of profits earned after 15 months from commencement of lease. The lease is evidenced by unregistered document. It was held that the lease was one for a period exceeding one year and hence registration was compulsory under Section 107 of the T.P. Act. — Delhi Motor Company and Others v U.A. Basrurkar (dead) by his LRs. and Others, AIR 1968 SC 794.

MULGENI LEASE

Where a mulgeni lease (in South Kanara District) stated that 'if any timber trees were cut and removed, the lease was liable to be forfeited and determined'. Held, this provision indicated that there was a prohibition to cut and remove timber trees and the lessee had no right in respect of timber trees. That the lessor has no rights in future growth has been recognised to be the principle prevailing in respect of trees in South Kanara in regard to permanent leases. Hence, on the basis of the custom or usage prevailing, and in the absence of any specific term in regard to future growth, the tenant would be entitled to rights in trees of

spontaneous growth or that came to be planted after the date of the lease deed : and the landlord would have no right to interfere with the right of tenant to such tree. — Seethamma v Louis Patroo, 1975(1) Kar. LJ. Sh. N. 36.

According to the terms of the mulgeni instrument, the tenant had a right to continue to be in possession of the property from generation to generation, the landlord having no right to resume the land. The only right reserved for the landlord was the right to recover the rent as and when it fell due and to recover it by the enforcement of a charge, which had been created on the property, leased to the tenant. The only process by which the landlord would perhaps be entitled to recover possession of the land was when there was a reversion to him of that land by reason of the death of the tenant for the time being, who left no heirs and died intestate. The tenant cut and removed five trees, which were in existence at the time of the lease. Held, (1) A lessee has no right to cut or destroy trees which existed on the leased premises when the lease was created, but that trees which have subsequently been planted on the premises by the lessee or which have spontaneously grown after the commencement of the lease may be so removed or cut by him. (2) The value of the trees removed would not represent the correct measure of damages, as the landlord had no right to the immediate possession of the land or to the trees. The measure of damages must rest on the dimunition in the value of the reversion and the dimunition in the security. The proper damages would be to estimate the diminution in the value of the property and deduct from it a discount for immediate payment. — Madhwaraya Udpa v Dasa Tantri, 1963(2) Mys. LJ. 416: AIR 1964 Mys. 179.

PUTTING UP FIRST FLOOR ON TERRACE BY LESSEE

Lessee running business of manufacturing vermicelli using terrace portion for drying vermicelli — Lessee commenced putting up first floor on terrace — Lessee obtained an order of temporary injunction — Contended that lessor had not reserved right of re-entry and thus had no right to put up 'building' on thereof — Rights of lessor. Held, The view that roof is not included in the definition of 'building' appears to prima fade wrong. The terrace is the top portion of the roof. Merely because the landlord has not reserved the right of re-entry, it does not mean that he has no right to put up the first floor. His right to put up first storey on the terrace of the building cannot be defeated only in the ground that he has not reserved the right of re-entry. If interference does not affect the object of the lease for which it is taken, then it cannot be said to be an interference with the quiet enjoyment of the building. — Salauddin v Bommegowda, ILR 1985 Kar. 2959.

TERM OF LEASE

When lease is made for a specified term a third person gets into possession under title alleged to be derived from the lessee under certain transfers. Lessor questions the validity of the Transfer and sues the third person for possession. HELD, lessor cannot succeed till the expiry of term of lease — Parashram Mahadeo v Rajen Textile Mills (.Private) Limited, AIR 1975 SC 2079.

COURT IS NOT AT LIBERTY TO BREAK UP THE CONTRACT

When the premises are let for residential and non-residential purposes, the contract of tenancy should be deemed to be single and indivisible. The Court is not at liberty to break up the contract. That the relief should be limited to that portion which is used for residential purposes is not valid. — Miss S. Sanyal v Gian Chand, AIR 1968 SC 438.

ACCESSION TO ADJOINING AREA OF LEASED PROPERTY

Encroachment by tenant during tenancy upon landlord's vacant land adjoining tenanted premises — Presumption is that land encroached upon are added to tenure for benefit of tenant so long as tenancy continues — Tenant cannot acquire title to encroached land by adverse possession but obtain only right of tenancy under landlord — Tenant is obliged to hand over encroached area also to landlord on determination of lease along with premises originally demised. Held.—There is a presumption that whenever a lessee or a tenant encroaches upon the adjacent area to his leased or tenanted premises, then such encroached area or premises or property, also gets included as the 'Leased or Tenanted' property and the tenant is obliged to protect the landlord's rights in respect of the encroached area also, and deliver up unto the landlord at the end of tenancy the said encroached area alongwith the original tenanted or leased area. . . . The open space on the northern and eastern side of the leased portion prima facie belong to the landlord. This disputed vacant land is also to be considered as tenanted property. If it is held as a tenanted property then the relationship of the petitioner in respect of the disputed property is also to be held as one of landlord and tenant. In that view the petition under Section 21(1) is maintainable for eviction. — Syed Nazmuddin v N.S. Krishna Murthy, ILR 1998 Kar, Sh. N. 65.

When the lessee claims accession to lease hold land and makes contradictory pleas in the alternative, the claim for accession of land by the lessee cannot be sustained. — Chapsibhai Dhanjibhai Dand v Purushottam, AIR 1971 SC 1878.

ACT OF COURT SHALL NOT INJURE ANY ONE

Section 108(e) — Kamataka Rent Control Act, 1961, Sections 21(l)(h) and (j), 25, 26 and 27 — Lease and right of re-entry — Termination of lease not automatic when leasehold is destroyed — It is at option of lessee — Right of entry under Rent Control Act is traceable to provisions of Section 108(e) of Transfer of Property Act — Interest of tenant does not survive in case of eviction under Section 21(l)(h) — His interest survives in case of eviction under Section 21(l)(j) — Court has ample power to protect tenant's interest in case of eviction under Section 21(1 )(j). Held: The interest of the tenant does not survive in view of the order of eviction under Section 21(l)(h) of the Act. This power of the Court can be traced to the analogous rights of the parties that subsists under Section 108(e) of the Transfer of Property Act. Under general law as codified in the Transfer of Property Act, the tenant is entitled to treat the lease as subsisting in the event the landlord of his own accord destroys the tenament. His remaining in possession of

the premises in question would be legal and the landlord is not entitled to prevent his retaining possession. But in a case under Section 21(l)(j), such entry and demolition of the tenament has taken place under the authority of law. The authority of law conferred on the landlord permitted him to enter into the leasehold property, pull down the building only on his undertaking to reconstruct the same. If he abuses this permission, namely, fails to honour his undertaking, his remaining in possession of the premises after demolishing the building is tantamount to remaining there without the authority of law. It is as if he had no permission at all to enter the property and pull down the building. If that be so, the principle that the act of Court shall not injure any one should be applied and the Court be empowered to give all directions as is in law a party is entitled to, so that the parties will be restored to the position prior to the permission being granted under Section 21(l)(j) of the Karnataka Rent Control Act. This can be achieved only if permission is granted to the tenant to resurrect or reconstruct the building that is demolished by the landlord. If that be so, in a case of eviction under Section 21(l)(j), the Court has ample power and is bound as well to issue such appropriate directions to meet the ends of justice which will enable the tenant to reconstruct the building as well. — Baburao Ganpatrao Tirmalle v Bhimappa Venkappa Kandakur since deceased by his L.Rs., 1996(2) Kar. LJ. 32F.

TENANT ATTEMPTING TO CARRY OUT REPAIRS TO RENTED SHED AND PUT UP PERMANENT STRUCTURE WITHOUT LANDLORD'S PERMISSION, ILLEGAL.

The suit is in between the landlord and tenant. The rent karar was for a period of 11 months and therefore the defendant's position is that of a tenant holding over. Even then if the defendant felt insecurity or wanted certain repairs to the building as a measure of security, he had every right to approach the landlord, obtain his permission and put up construction. There is nothing to indicate in the evidence that defendant at any time approached the plaintiffs and obtained permission. Section 108(f) of the Transfer of Property Act provides a remedy in a situation where the landlord neglects or refuses to effect necessary repairs. Sub-section (h) empowers him to remove such fixtures even after the determination of the lease subject to the condition that he leaves the property in the state in which he received it. These things and the question of law on the point have been ignored by the Appellate Court in considering the evidence both oral and documentary. It is an error in law and defect in procedure which requires to be corrected in appeal. — Noorulla Amin Musuba and Others v Chandru Sheniyar Naik, 1996(6) Kar. LJ. 275D.

LESSOR IS ENTITLED TO REMOVE COMPOUND WALL PUT UP WITHOUT HIS CONSENT.

Even to effect repairs the tenant is expected to give notice to the landlord. In the instant case the appellants have not even bothered either to intimate the landlord

or obtain necessary permission for the purpose of erection of compound. Further, the appellants also never bothered to know from the landlord regarding measurement of the premises bearing No. 17. Further, the appellants are also not able to establish that they had put up the compound within the premises bearing No. 17. Under these circumstances the Trial Court is justified in not exercising its discretion in the matter of granting injunction in favour of the appellants. .... The Trial Court having considered all the materials placed before it declined to grant injunction in favour of the appellants. If that is so, there is no reason to interfere in the order of the Trial Court in these two appeals. — The Home School, Bangalore and Another v M. Shaft Ul Haji and Another, 2001(6) Kar. L.J. 93.

OWNERSHIP/REMOVAL OF BUILDING CONSTRUCTED BY TENANT – DEPENDS ON CONTRACT.

Lease of vacant land — Condition permitting lessee to construct building on leasehold land and requiring him to surrender possession of land with building on expiry of lease without compensation — Ownership of building vests in lessee so long as lease is subsisting, and on expiry of lease, it passes on to lessor — Matter is one of contract between parties. Normally, under Section 108 of the Transfer of Property Act, before the expiry of the lease, a lessee can remove all structures and building erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership, therefore, of the building in this case was not with the lessors but was with the lessees. Under Section 108 of the Transfer of Property Act, there was nothing to prevent the lessees contracting to hand over any building or structure erected on the land by them to the lessors without receiving any compensation. In other words, although under Section 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessors without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however did not transfer the ownership in the building to the lessors while the lease subsisted. — S. Shivamthan (deceased) by L.Rs. v S.G. Narayana, ILR1998 Kar. Sh. N. 90.

A lessee who has put up a building with the consent of the landlord on the leased premises, is not entitled to be compensated for the costs incurred by him in respect of the structures put up by him, when the tenancy is terminated and when he is called upon to quit and deliver the possession of the property to the lessor — Mohammad Hayat Sahab v Radhakrishna Bhaktha, 1968(1) Mys. L.J. 63

Where lessee has agreed to construct building of value of not less than Rs. 15,000/- which at the expiry of the lease was to become the property of the lessor and the building valued at Rs. 50,000/-, the lessor is entitled to building and not merely structures worth Rs. 15,000/-. Y:V. Srinivasa Murthy by L.Rs. v Pillamnw and Others, 1973(2) Mys. L.J. 399.

When the Lease deed provides for passing of ownership of superstructure built by lessee to lessor after expiry of tenancy, the lessor is under obligation to pay certain percentage of market value of structure to lessee under the agreement. The

lessee cannot retain possession until amount is paid — Madan La! v BHai Anand Singh, AIR 1973 SC 721.

The lessor is not debarred from determining the lease or filing a suit for ejectment merely because the lessee has made construction to the knowledge of the lessor — Jagat Ram Sethi v Rai Bahadur D.D. Jain, AIR 1972 SC 1727.

CHALGENI LEASE

A lessee under a chalgeni lease may, in the absence of a prohibition contained in the lease itself assign his lease hold interest for the duration of the term of the lease or the balance of it at the time when the assignment is made. After the expiry of the term of the lease, the assignee has no interest subsisting as to entitle him to a declaration of his being a chalgeni tenant. A renewal of the lease by the tenant holding over and the landlord receiving the rent, is a renewal of pre existing contractual relationship, and the benefit of such renewal cannot be claimed by the assignee after the expiry of the term. — Umamaheshiuara Temple by Trustee v Leo Cresta, 1966(2) Mys. LJ. 483.

LESSEE FILING SUIT FOR MANDATORY INJUNCTION

Certain part of land was leased to a person. The lease granted a portion of a land on license to another for a specified period. The license was terminated after the expiry of the period. The lessee against licensee filed a suit for mandatory injunction. The licensee claimed to have purchased the land from the owner. Suit by lessee for possession is maintainable. See Specific Relief Act, 1963, Section 6. — Sant Lal Jain v Avtar Singh, AIR 1985 SC 857.

SUB-LESSEE RIGHTS

Premature surrender of leasehold rights by main lessee and its effect on right of sub lessee — Such surrender does not operate as eviction of sub lessee — It only brings sublessee into direct contact with lessor, making sub lessee himself main lessee under lessor on terms of existing sublease — If, after such surrender, new lease is entered into with third party, such third party who has become new lessee, does not step into shoes of his predecessor lessee who had created sublease and does not ipso facto become landlord of sub lessee for purpose of evicting sub lessee — Where main lessee, partnership firm, had prematurely surrendered its leasehold rights after creating sublease, and on such surrender, third party individual became main lessee, new lessee does not become landlord of existing sublessee for purpose of evicting him. Held: It is well established that the lease is a transfer of interest in immoveable property. Section 105 of the Transfer of Property Act, 1882 provides that a lease of immoveable property is a transfer of

right to enjoy such property made for a certain time, express or implied, and for consideration. Clause (j) of Section 108 of the T.P. Act, subject to any contract to the contrary, authorizes the lessee to sublease the whole or any part of his interest in the leasehold property. .... During the subsistence of the lease, the sublessee in whom the lessee's interest is vested, acquires right to continue in possession over the demised premises during the subsistence of the lease. Therefore, coming to the facts of the present case, but for the surrender of the lease by the head lessee i.e., the firm, the petitioner was entitled to continue his possession over the petition premises till 1978 in his own right since the lease in favour of the firm was for a period of 9 years. . . . .Despite the above noted statutory provisions and consequent right of the petitioner flowing there from, the same was sought to be destroyed by the respondent on the strength of a registered lease deed dated 6-2-1974 obtained from the owner by taking a plea that he had obtained the said lease on surrendering of its leasehold rights by the firm and thus, he has stepped into the shoes of erstwhile lessee firm. Thus, according to him, he has become landlord of the petitioner as defined under Section 2(h) of the KRC Act. According to the said provision, in respect of a subtenant, the tenant, who has sublet the premises is the landlord for the purposes of the said Act.. . .It is no doubt true that the sub lessee's interest being carved out of lessee's interest, it will, as a general rule, be determined by the determination of the lease itself. But, determination by surrender of the lease by the lessee is an exception to this general rule. Surrendering being a voluntary act on the part of the lessee, the principle that a man cannot derogate from his own grant will come into play and the lessee's action will not be allowed to prejudice the sub lessee. It is this equitable principle, which has been incorporated in Section 115 of the T.P. Act. By operation of this statutory provision on surrender of the lease by the head-lessee, the sub lessee becomes a lessee of the lessor on the terms of the sublease. Thus, the under lessee, by operation of law is brought into direct contact with the lessor, except where surrender is made by the head lessee for obtaining new lease. .... .The plea raised by the respondent is that before the lease was granted to him on 6-2-1974, the firm had expressly or impliedly surrendered the lease granted in its favour. If that be so, then by operation of the statutory provisions under Section 115 of the T.P. Act, the petitioner being the under lessee, himself became the head lessee under the Math. Therefore, there could not have been any occasion for granting any competing lease to the respondent in respect of the petition premises. For this reason, it has to be held that respondent at no point of time, became the landlord of the petitioner for the purpose of the K.R.C. Act entitling him to maintain any eviction proceedings there under against the petitioner. — Krishnasa Kheerasa Habib v Shah Parasmal Pittaji Jain, 2000(1) Kar. LJ. 12.

THE TENANT IS NOT ENTITLED TO SUSPEND PAYMENT OF RENT

When landlord fails to give possession of one out of three bed rooms of demised premises, the tenant is not entitled to suspend payment of rent, but he must pay proportionate rent. — Surendra Nath Bibra v Stephen Court Limited, AIR 1966 SC 1361.

PURPOSE OF LEASE

The purpose of lease of certain land was that the premises was not to be used for any purpose other than the specified purpose. When the tenant uses the premises for other purpose which is connected with the main purpose, it could not be said that the premises was used for the purpose other than that of the lease. The inhibition of Section 108(o) is not attracted. — Jnan Ranjan v Arun Kumar, AIR 1975 SC 1994.

POSSESSION ON THE EXPIRY OF THE LEASE

A condition that the lessee has to put the lessor in possession on the expiry of the lease is to be read in the lease even in the absence of such condition. — Thayarammal v People's Chanty fund and Others, 1978(1) Kar. LJ. 438.

FUTURE LESSEE RIGHT TO EVICT EXISTING LESSEE

When the lease is to commence from expiry of the existing lease, the lessee can sue for eviction of original lessee. The right of transferee under the Section is not curtailed by Rent Control Act. See Karnataka Rent Control Act, Sections 3, 4 and 31. — N. Venkataramana Bhat v A. Prabodh Naik and Others, 1975(1) Kar. LJ. 262.

DETERMINATION OF LEASE

Where a widow having a right of residence in a family house created a tenancy, such lease stood determined on her death. Section lll(c). See T.P. Act, Section 6(g). — Bhujabalappa Anandappa Baragali and Another v Veerappa Mahabaleshappa Doddamani, 1966(2) Mys. L.J. 56.

Lease is determined on expiration of notice to determine thereof — Lessee is bound to put lessor into possession of property, on determination of lease — Question of bona fide requirements of landlord not required to be gone into — Provisions of Section 21(1) of Karnataka Rent Control Act, 1961 regarding eviction of tenant are not attracted when suit is under Transfer of Property Act and suit premises are situated in place to which provisions of Rent Control Act do not apply. Held: The suit instituted by the appellant under the provisions of the Transfer of Property Act, 1882. The property in dispute is situated in Akki-Alur

village to which admittedly the provisions of the Karnataka Rent Control Act, 1961 do not apply. Therefore the question of bona fide requirement of the premises for appellant's use was not a matter that was required to be gone into. The appellant incidentally or inadvertently referred to the requirement of the premises for his bona fide occupation but the appellant was not required to prove that averment of bona fide requirement of the premises for a decree of eviction. In a suit under the provisions of the Transfer of Property Act, 1882 under Section 108 of the Transfer of Property Act, 1882 under clause (q), on the determination of the lease the lessee is bound to put the lessor into possession of the property. Section 111, Transfer of Property Act which deals with determination of lease states that lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. — Shantaveerappa Puttappa Chaushetti v Gangaram Hemajeppa Kalal (since deceased) by L.Rs. and Others, 1996(3) Kar. L.J. 338.

SALE OF AGRICULTURAL LAND - WHERE TENANCY EXISTED

An agreement to sell was executed in favour of the plaintiff, a tenant and the tenant continued in possession and in execution of a money decree against the plaintiff-tenant, the property was brought to sale and purchased by the decree-holder and thereafter the plaintiff brought a suit for declaring the execution sale as void and not binding on him. No objections were filed by plaintiff after the notice under Order 21, Rule 66 of the CPC was served on him. Section 28 of the Bombay Tenancy and Agricultural Lands Act prohibited Sale of tenancy rights. Held, that the question whether the plaintiff's rights of tenancy in the suit land got merged in the rights acquired by plaintiff under Section 53-A of the Transfer of Property Act cannot be raised for the first time in second appeal. Since only the right to ask for specific performance had been acquired by the plaintiff under the agreement to sell and since such right does not constitute an interest in immoveable property, there was no merger of the tenancy rights of the plaintiff with the right under the agreement to sell, under Section 111(d) of the Transfer of Property Act. Therefore, there was no bar of constructive res judicata to the plaintiff's suit, which was in respect of his rights as tenant and which were not brought to sale. The bar under Section 34 of the Specific Relief Act applies when the plaintiff is entitled to ask for consequential relief but abstains from doing so. As the plaintiff did ask for the consequential relief of possession but the Court found that he was not entitled to it, the bar under Section 34 of the Specific Relief Act did not apply and the plaintiff was therefore entitled to a declaration that the execution sale was void. — Rangarao Ramarao Deshpande v Channappa Basappa Lakshmanahalli , 1974(2) Kar. L.J. 208 : AIR 1975 Kant. 155

TENANT PURCHASING LAND FROM ONE OF MEMBERS OF JOINT FAMILY

Lease — Determination of — Tenant of land forming part of joint family property purchasing land from one of members of joint family — Since what he has purchased is only undivided share of member in joint property, he has no right to

possession, either exclusive or joint, and consequently there is no merger of interests of lessee and lessor in property in himself — Lease in such case is not determined. Held: Section 111(d) of the Transfer of Property Act provides that lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. Therefore, it is clear that it is only in case the interest of the lessee and the lessor in the whole of the property stands vested at the same time in one person in the same right, there would be determination of lease. In the instant case, where the original tenant has acquired only one-fifth undivided interest of the lessor, it cannot be said that there is determination of the lease. If there is no determination of lease, the agrarian relationship of landlord and tenant continues. In the instant case, both the original tenant as well as his sons did not seek for partition of one-fifth undivided interest in the land and take even symbolic possession of the same. Therefore, the conclusion reached by the Appellate Authority that since the original tenant had purchased one-fifth undivided interest in the land in question from the landlord, the petitioners are not entitied for conferment of occupancy right, is unsustainable in law. The order impugned is liable to be sot aside. — Tukaram Govind Naganvakar (Deceased) by LRs. and A nother v State of Kamataka and Others, 2001(4) Kar. LJ. 505C

LESSEE ENTERING INTO CONTRACT FOR PURCHASE

Lessee entering into contract for purchase and entitled to possession under Section 53-A — Lease stands extinguished. — Champalal Bhaktawarmal v Smt. Sumithramma by LRs, 1972(2) Mys. LJ. 242 : AIR 1973 Mys. 110.

For some years prior to 1949 the suit property was let out by plaintiff to defendant and defendant was running a Hotel. On 19-12-1949, plaintiff conveyed the suit property to defendant for Rs. 7,000/- with a covenant for re-purchase for the same consideration within ten years of the documents. It is also stipulated that during the period subsequent to reconveyance, defendant should not be dispossessed for the 10 years from the date of the sale and that the defendant should be hi occupation as tenant on the same rent as before. Plaintiff sued for specific performance of agreement for reconveyance. Held.—The transaction of 1949 was a sale and not a mortgage, and it brought about the extinguishment of the previous lease by merger under clause (d) of Section 111 of the T.P. Act. The covenant that during the period between the reconveyance and the expiry of 10 years from the Deed, the defendant should be in occupation as a tenant should be regarded as an agreement by plaintiff to grant a lease on the happening of a future contingency and not as providing for a revival of the previous lease. Further, no deed of reconveyance having been executed within time, the plaintiff was relieved of necessity of granting the lease. Hence plaintiff was entitled under the deed of 1949 to a Deed of reconveyance and to possession — Shankara Rao Rama Rao v Ekiwth Mallappa, RSA No. 360/1963, dated 13-7-1966.

RELINQUISHMENT OF THE LEASE - SURRENDER

A letter by the lessee stating that the leased premises had been kept vacant does not amount to relinquishment of the lease — State of Mysore v B.R. Ramoo, 1967(2) Mys. LJ. 625.

Implied surrender determining lease — Surrender can be implied from act of lessee abandoning possession and that of lessor taking over possession — Doctrine of Estoppel is basis of implied surrender — One of joint tenants vacating premises amounts to implied surrender on his part. Held: Section 111(f) of Transfer of Property Act provides that a lease of immovable property determines by implied surrender. Surrender can be implied from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Implied surrender has its basis on the Doctrine of Estoppel. If a tenant abandons or relinquishes possession of the leasehold premises and the landlord acting on the basis of such conduct of the tenant either takes over possession or where the tenant who has abandoned that premises happens to be one of the joint tenants does something to his detriment there would be an implied surrender of the right of such tenant or joint tenant. — Akkatai alias Sujata v Baburao SattappaAngol (dead) by L.Rs. 1995(6) Kar. LJ. 219B.

A waiver is an intentional relinquishment of a known right. There could be no waiver unless the person against whom the warver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. — Associated Hotels of India Limited v S.H. Sardar Ranjit Singh, AIR 1968 SC 933.

AGREEMENT RESERVING RIGHT OF RE-ENTRY TO LANDLORD — RIGHT DOES NOT AUTHORISE BOARD TO FORCIBLY RESUME POSSESSION

Determination of — By forfeiture — Agreement reserving right of re-entry to landlord — Right does not authorise Board to forcibly resume possession — Possession to be resumed either by initiating proceedings under Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 or by filing suit. Held: The power of re-entry and 'resumption' that is reserved by the Board in the lease-cum-sale agreement, does not authorise the Board to directly or forcibly resume possession of the leased land, on termination of the lease. It only authorises the Board to take possession of the leased land in accordance with law. In this case, that can be either by having recourse to the provisions of the Public Premises Act or by filing a Civil Suit for possession and not otherwise. — M/s. Hanuman Silks and Another v Karnataka Industrial Areas Development Board and Others, 1996(7) Kar. LJ. 277C

MERE ACCEPTANCE OF RENT FOR AND ON BEHALF OF THE LAND LORD WILL NOT CREATE A TENANCY BY HOLDING OVER

The Touring Cinema of Respondent 1 was located on a site, which he obtained under a Lease on 3-1-1979 for 11 months. After the expiry of the lease, he has been paying rent to the son of the owner til] May, 1980. When the renewal of the Cinema Licence was sought for, the owner objected that Respondant 1 had no right to continue in possession. Respondant No.l had filed a suit against the owner and obtained a temporary injunction restraining interference with his possession the District Magistrate granted Renewal of Licence. The same was challenged in a Writ Petition. It was held that Respondant No. 1 cannot be said to be in lawful possession of the site within the Rule 6 of the Cinema Rules. The temporary injunction only protected Respondant 1 against unlawful interference by the owner and was not conclusive, much less indicative of the fact that Respondant No.l was holding over or a person in lawful possession of the site. There being no evidence that the owner's son was authorised to receive rents for and on behalf of the owner, nor any evidence that during the term of the written lease, the son was also receiving the rent, mere acceptance of rent for and on behalf of the land lord will not create a tenancy by holding over. — Kanthamma v S.A. Sudarshan and Another, 1981(2) Kar. L.J. 249.

LEASE CONSISTING OF AGRICULTURAL LAND AS ALSO HOMESTEAD.

Main lease consisting of Agricultural land as also homestead. When Sub lease of homestead only is made all such sub-leases are Agricultural leases. The question should not be reopened even though the correctness of the view is open to question. The rule that where terms of Statutes or ordinance are clear then even a long and uniform course judicial interpretation of it may be over ruled, if it is contrary to clear meaning of enactment, is in applicable to decisions on the basis of which titles and transactions must have been founded. — Nirshi Dhobin and A nother v Dr. Sudhir Kumar Mukherjee and Others, AIR 1969 SC 864.

ILLUSTRATIONS IN T.P ACT

(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and 6 remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.

(c) A lets a house to B for 5 years. B underlets the house to C at a monthly rent of Rs. WO/-. The 5 years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month to month.(d) A lets a farm to B for the life of C. C dies,,but B continues in possession with A's assent. B's lease is renewed from year to year.

(TO BE UPDATED) CASE LAW ON CHARGE AND MORTGAGE OF IMMOVEABLE PROPERTIES CHARGE

The word 'charge' is described in Section 100 of the Transfer of Property Act. I hasten to add here that the charge referred to in Section 100 of the Transfer of Property Act relates to immovable property. However, the definition of the word 'charge' given in Section 100 of the Transfer of Property Act will give an inkling as regards as to what exactly is meant by charge. Charge can be created in respect of immovable property and charge can be created also in respect of movables. A charge is nothing but a devise to create security, which is enforceable in a Court of law. In order to create a charge in respect of immovable property, it is necessary that the same is required to be embodied in a document. However, in order to create a charge relating to movables it need not be in writing. Further in order to create a charge, it is not necessary to employ any technical or any particular form of expression. All that is required is that there should be a clear intention to make a particular property as a security for the payment of money. In other words, creation of enforceable security is the essence of charge either in respect of immovable property or in respect of movables. Hypothecation though not necessarily accompanied by possession of the property and though it may not create a title as such would indeed provide a security. This Court has stated that the Bank is entitled to even retain possession and sale and also to exercise the right of private sale in respect of property hypothecated. One thing is clear from the sum total of the decision viz., that hypothecation does create a charge. As pointed out earlier, the learned counsel Sri Bhagawan has not disputed the fact that the machineries have been hypothecated in favour of the Bank. If that be so, it is obvious that the said hypothecation did create a charge in favour of the Bank relating to the machineries described in the suit and which were undisputedly the subject-matter of the deed of hypothecation. From what is stated hereinabove, it becomes clear that the undertaking reflected in the decree does not create a charge in favour of defendant 2 (appellant) and that the same also does not render invalid the charge created in favour of the Bank. Further, the hypothecation in favour of the Bank does create a charge. — Hindustan Machine Tools Limited v Nedungadi Bank Limited and Another, 1994(3) Kar. L.J. 555.

Charge on immoveable property — Creation of — Where immovable property is made security for payment of money, it creates charge on property — Such charge is enforceable against subsequent transferee of property, unless subsequent transferee is shown to have acquired property for consideration and without notice of prior charge — Where such charge is for amount exceeding Rs. 100/- and has been created under compromise decree which is compulsorilv registrable under law and has in fact been duly registered, subsequent transferee cannot feign ignorance of charge — Registration operates as constructive notice of charge and vested right of subsequent transferee is subject to such prior charge. Held: The said compromise decrees are money decrees passed on the basis of compromise between the parties, creating a charge on the property in question. Both the said

decrees were duly registered by the concerned Sub-Registrar. .... .The vested right of any transfer of immoveable property acquired by any lawful transferee thereof would be subject to prior charge created on it either by act of parties or operation of law, unless the transferee is shown to have acquired the same for consideration and without notice of the charge. In the instant case, the property was purchased by the petitioners under valid registered sale deed dated 4-6-1988 and that it was purchased subsequent to the compromise decrees dated 11-11-1987 creating charge on the said property for realisation of the decretal amounts thereunder. Therefore, the petitioner .could avoid legal effect of the said charge on the property only when and if they establish satisfactorily that the same was purchased by them without notice of the charge. — Sha Champalal Oswal v Peralu Achanna and Another, ILR 1997 Kar. 3434.

Decree for charge on property over which the person has a life interest — Charge cannot be operative beyond lifetime of person. — Subbakka by L.Rs v Appayya Rai, 1973(1) Mys. L.J. 71: AIR 1973 Mys. 230.

If a recurring charge is created for the payment of maintenance and the property on which the charge so created is brought to sale for recovery of such maintenance which had become due, the sale of the property for recovery of such maintenance cannot destroy the right of the decree-holder to enforce the charge in respect of maintenance which subsequently becomes due. So long as the decree-holder has the right to recover future maintenance and the payment of that maintenance is secured by a recurring charge, on each occasion on which the maintenance due is not paid, the property can be brought to sale in enforcement of that charge, notwithstanding the fact that the property is in the hands of purchaser who has purchased it in execution of the decree for maintenance on a previous occasion. — K.T. Venkata Gowda v Devamma, 1963(1) Mys. LJ. 582 : AIR 1964 Mys. 40.

Non-mention of charge of maintenance in the sale-proclamation issued by the Court — Auction purchaser cannot avoid charge of maintenance on that ground — Scope of the provision explained. — Ramachandm Siddappa Kamgond v Lingaivwa and Others, ILR1985 Kar. 470.

MORTGAGE

MORTGAGE BY CONDITIONAL SALE

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. Bishwanath Prasad Singh v. Rajendra Prasad and Another (SUPREME COURT OF INDIA) D.D : 24/2/2006

A document of mortgage is compulsorily registrable. If not registered, the deed can only be used to evidence debt. AIR 1964 Pat 241.

In a mortgage by conditional sale the debtor and creditor relationship is found where as sale is the out and out transfer of all the rights of the owner and in a sale with a condition to repurchase, the additional ingredient is that, the seller reserves a personal right to repurchase the property. Bhoju Mandal case: AIR 1963 SC 1906. Where there is no debtor and creditor relationship, the transaction cannot be termed as mortgage by conditional sale. Tamboli Ramanlal Motilal case: AIR 1992 SC 1236.

The mortgagor’s right to redeem the mortgage survives until the sale of mortgaged property by the mortgagee is completed by a registered sale deed. Narandas Karsondas case AIR 1977 SC 774.

Mortgage is transfer of interest in immovable property for purpose of securing loan — Lease, on other hand, is transfer of right to enjoy property till determination of lease — If person desiring to take premises on lease, makes deposit in lieu of monthly rent, transaction is not mortgage, but only lease, irrespective of how transaction is described in written agreement — In suit for eviction of tenant in occupation of premises under such lease, tenant cannot deny existence of relationship of landlord and tenant and set up relationship of debtor and creditor. A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. On the other hand, a lease is a transfer of a right to enjoy a property and is not a transfer of an interest in a property and me usufruct of the property belongs to the tenant till the determination of the lease. Once there is a debt with security of the property for its redemption, then the arrangement is a mortgage. Where the relationship between parties was described as creditor and debtor and the debtor gave his property as security for the amount advanced, the document was a mortgage. In other words, if the money paid is a loan advanced and the transfer of possession is for the purpose of security for the repayment of such loan, the transaction would be a usufructuary mortgage. .... Merely because an amount is advanced and possession is delivered, a transaction will not become a mortgage. In a lease for money advanced or deposit made, there is no relationship of debtor and creditor between the landlord and tenant. In such a transaction, the tenant who desires to take the premises on lease, agrees to make a deposit, instead of making a monthly payment as rent, with the' understanding that the landlord will continue to hold the said advance or deposit so long as the tenant continues in possession and he should refund the same when the tenant vacates the leased premises. It may be noticed that in such a transaction, the property is not given up security for the amount advanced. While the primary transaction in a mortgage is advancing of a loan and securing the advance by an immovable property, in a lease against deposit, the primary intention is to make „. available the premises to the tenant and receive the consideration therefor by way of interest free advance. .... The

very fact that the respondent approached the owner requesting him to make available the premises for her residence and agreed to pay a consideration of Rs. 10,000/- as deposit to be held during the period of occupation and refundable on vacating the premises and the fact that there is no reference to a request for any loan or the premises being held as a security for the amount discloses that the document was a lease for deposit/advance, and not an usufructuary mortgage. Therefore, the description of the document as 'Bhogyada Kararu' (usufructuary mortgage agreement) is misleading and not correct. .... Where the petitioner's ownership/title is not disputed by the tenant, and where the respondent admits that he was inducted into the premises by the petitioner or his predecessor-in-title, and where the respondent does not set up title in himself or herself, and where petitioner gives evidence that he is the landlord and respondent is the tenant, in the absence of any evidence to the contrary by the respondent showing that his/her possession is either as a mortgagee or as a licensee, the landlord's claim that the respondent is in possession as a tenant will have to be accepted by the Court. The Trial Court committed a serious error in holding that the relationship of landlord and tenant is not established. — K. Amarnath v Smt. ' Puttamnw, 2000(4) Kar. L.J. 55E.

The mortgagee by executing the sale deed of the mortgaged property in favour of the appellant conferred no better title than what he had under a deed of mortgage viz., no more than the right of a mortgagee. — T. Diwakam vM. H. Ananthaswamy & Others, 1991 (1) Kar. L.J. 597.

MORTGAGE BY CONDITIONAL SALEDocument styled as conditional sale deed conferred right on transferee to enjoy property from generation to generation, but also contained a clause for retransfer by means of separate sale deed within two years — There was no stipulation for the transferee to realize the sale price in the event of vendors not opting to repurchase — Whether document could be treated as a mortgage by conditional sale. In determining whether a transaction is a mortgage by conditional sale or sale with condition of repurchase, the vital question that should be required to be considered is the question of intention of the parties, and that intention must be considered on consideration of the contents of the documents with such extrinsic evidence of surrounding circumstances. The Court should not be guided by the mere term of ostensible sale, but it should ascertain the reality by proper consideration of the term contained in the document and the manner in which the language of the document is related to the existing facts. On a proper reading of the document, it clearly went to show that there was no word as to mortgage by conditional sale. The purchaser was given the right of ownership stating that he would enjoy the property as owner conferring on him the right to mortgage or sell. There was no stipulation regarding payment of interest, except the condition that the vendor could repurchase the property within two years for the same price at which it was sold. These facts, coupled with the surrounding circumstances, such as the property mutated in the name of the purchaser/defendant and the constructive possession given to him as there was a tenant at the time of sale of the suit property, whom he later got evicted by taking eviction proceedings, clearly spelled out that the transaction 'was out and out sale and not mortgage by conditional sale. The proviso to Section 58(c) cannot be interpreted as laying down a rigid rule that if the agreement to sell and the covenant of repurchase is

embodied in the document, the inference of mortgage would not necessarily arise or that when the condition of repurchase is embodied in the document of sale, the transaction should necessarily be regarded as one of mortgage. It is well laid principle of law that the first appellate court is the final court of fact and very important duty cast upon it. In a case of reversal, it is all the more important for the court of first appeal to consider the evidence and the reasoning of the trial court and only thereafter give the reasons for not agreeing with the findings of the trial court. In this case, the first Appellate court had considered the evidence by applying its mind independently and considered the reasoning of the trial court and thereafter gave its reasons for not agreeing with the findings of the trial court. Since the findings of the first Appellate court is sustainable from the reasoning given by it, that finding cannot be interfered with in second appeal. — S.N. Swamy v Smt. Goiuramnta, 1992(3) Kar. L.J. 244.

Mortgage is a completed transaction and hence suit to declare a mortgage void for want of consideration does not lie. — Siddanna Bovi v Hanumantha Reddy, 1971(2) Mys. L.J. 62: AIR 1972 Mys. 23.

CONDITION TO RECONVEYA mortgage is a transfer of an interest in specific immovable property as security for the repayment of a debt. In a simple mortgage what is transferred is a power of sale which is one of the component rights that make up the aggregate of ownership. The characteristic feature of mortgage is that the right in the property created by the transfer is accessory to the right to recovery the debt. It is thus a matter of construction whether the security is a simple mortgage. For a simple mortgage there must be a personal covenant either express or implied and in the absence of such a covenant the security is generally but not necessarily a charge. ... When a deed gives a mortgagor the option of repaying the loan by selling the mortgaged property, that does not exclude the personal covenant in cases where there is one. Therefore, in a simple mortgage the security for the debt is two-fold: (1) the personal obligation, and (2) the property.... Though there may not be any specific averment in the deed stating that the interest in the property is transferred, when the right to recover money by sale of the property is given to the creditor, impliedly it amounts to transfer of an interest in the property. — Nagabhusappa v Laxminarayana, ILR 1985 Kar. 1742.

LEASE OR MORTGAGE

The executant of the document owed large sums of money to the other party and the document provided the manner of discharging the debt, namely, that during the subsistence of an existing lease, the other party should receive the rent from the lessees and appropriate a certain sum on account of interest and pay a sum of Rs.............. as rent to the executant and that after the expiry of the existing lease, the other party should take physical possession of the land and appropriate the produce towards interest and pay Rs. ............. as rent to the executant and that on the expiry of 15 years, the executant would pay the entire principal amount to the other party. The document also declared that the property was given as security

for the loan. (1) Under the document, there was a relationship of creditor and debtor between the parties and the property was given as security for the payment of the amount advanced with interest and therefore, the document was a mortgage and not a lease; and(2) Under the deed the mortgagee undertook an unconditional obligation to pay the rent and had the right to take the entire receipts from the land in lieu of interest; therefore there was a contract between the mortgagee and mortgagor within the meaning of Section 77 of the Act, to the effect that the receipts from the mortgaged property should be taken in lieu of interest: and the mortgagee was not liable to render accounts to the mortgagor. The mention of a specific rate of interest in the document does not necessarily lead to the conclusion that the mortgagee would have to take only such parts of the net receipts sufficient to discharge the interest and credit the balance to the mortgagor. It cannot be held from the mere fact that the rate of interest is mentioned, that the document does not come under the purview of Section 77. — Mahant Ramdhan Puri v Bankey Bihari Saran and Others, 1958 Mys. L.J. 775 (SC)LEASE OR MORTGAGE

Under a document it was agreed; that the land should be delivered to the possession of the defendant on condition that he pays a rent of Rs. 40 a year, that he makes a deposit with the plaintiff of Rs. 500, that a rent of Rs. 40 a year should be paid for five years in respect of five crops; that at the end of five years, the defendant should restore possession of the property if she paid the principal sum of Rs. 500; and that in the event of plaintiff not returning the sum of Rs. 500 at the end of 5 years, defendant should be in possession and enjoyment till the amount was repaid. Held, there were many features, which were more consistent with a lease than a mortgage, and the transaction was one of lease. Tayawwa v Gangaiowa, 1966(2) Mys. L.J. 560.

LEASE OR MORTGAGE

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 aspect' of the transaction. There is one most essential feature in a mortgage which is absent in a lease that is, that the property transferred is a security for the repayment of debt, whereas, in a lease it is a transfer of right to enjoy the property! Where this essential feature of the mortgage is missing, the document is not a mortgage. — Puzikkal Kuttappan v Rhargavi, ILR 1977 Kar. 469.

Tenant who has taken the property in his possession on mortgage, on redemption would not become a tenant again — He is deemed to surrender his leasehold rights while executing mortgage deed — Explained. — Krishnamurthy v Puttappajiah, ILR 1987 Kar. 3867.

Section 58(a) of the Transfer of Property Act which defines 'mortgage' specifically says that a mortgage is a transfer of interest in a specific immovable property as security for the repayment of a debt. The nature of the right so transferred depends upon the form of mortgage. In a simple mortgage, the right to

sell which is one of the component rights of ownership is transferred. Even after such transfer, he still remains the owner and if he transfers by way of sale after the mortgage, he would be selling the property itself and not mere right of redemption. Ownership is a bundle of rights and merely because the owner mortgages his property, it cannot be said that he is not entitled to transfer the property itself thereafter. In a mortgage, the mortgagee gets an intangible right for the purpose of securing the payment of debt or the performance of an engagement which may give rise to a pecuniary liability. Only the owner, i.e., the mortgagor, can transfer the property itself, subject to the interest which he has transferred to others, out of the totality of his rights which constitute the ownership. The auction sale held thereafter did not effect the title of the plaintiff who was not a party thereto. He is, therefore, entitled to the reliefs sought for. — Medar Nagamma and Others v Medar Sanna Siwnna and Others, ILR 1992 Kar. 650.

WHERE EXECUTION OF DEED IS DENIED BY PERSON PURPORTED TO HAVE EXECUTED IT, IT IS MANDATORY TO PROVE ITS EXECUTION BY EVIDENCE OF ONE ATTESTING WITNESS AT LEAST.

In absence of such positive evidence to prove execution of mortgage deed, Court, held, is justified in dismissing Bank's suit based on such unproved deed of mortgage. No doubt, the deposit of title deeds need not be in writing. The deed of mortgage other than the mortgage of deposit of title deeds is required to be attested by two witnesses. In the instant case, as the mortgage is by depositing of title deeds under Section 58{f), there is no need to execute any document in order to create a charge in respect of an immovable property, as delivery of the title deeds itself is sufficient to create a charge in respect of an immovable property for the money borrowed. But, in the instant case, the Bank did not accept the list of documents said to have been delivered by the 2nd defendant to the Bank, since the title deed delivered is only a certified copy and not the original. As delivery of certified copy since has not been accepted by the Bank, the memorandum of deposit of title deed was got executed and registered. As the memorandum of title deed is a registered document and when that document has been specifically denied by the 2nd defendant in his reply notice and in the written statement filed by the L.Rs of the 2nd defendant, the plaintiff-Bank ought to have examined one of the attesting witnesses to the said deed. In the instant case, no attesting witness has been examined in order to prove the execution of the document by the 2nd defendant. Further, the signature is disputed and as there is discrepancy in the spelling of the name in the absence of any positive evidence adduced by the plaintiff to prove the documents the Trial Court is justified in dismissing the suit insofar as the 2nd defendant is concerned. — Syndicate Bank, Dr. D.V.G. Road Branch, Bangalore v M, Sivarudrappa (Deceased) by L.Rs., 2003(2) Kar. L.J. 226.

CONDITION TO RECONVEYUnder a document styled as 'Muddathu Kharidi, which implied that it has to take effect as a sale deed in future, possession was delivered to the vendee and it was stipulated that if the vendors paid Rs. 1,800 after 31st March each year thereafter or within five years from the date of the document, the document should be returned to the executants with endorsement of satisfaction and possession of the

property delivered back to the executants and that if payment was not made within five years the vendee becomes the full owner of the property. The property was worth Rs. 6,000 or 7,000. Held, in the present case the inadequacy of consideration for a sale, the absence of a condition in the document to reconvey title to the executants on payment of the stipulated amount within the stipulated period and the condition that on payment by the executants, the vendee should return the document with endorsement of satisfaction and re-deliver possession of the property to the executant and the fact that the Khata of the property was not transferred to the vendee's name after the document, all signified that the intention of the parties was to treat the transaction as a mortgage by conditional sale and not as a sale with an agreement to re-purchase. — Kallappa Shettappa Chougule v Mahadev Laxman Shahapurkar, ILR 1975 Kar. 723.

CONDITION TO RECONVEYEven after executing 'absolute sale' parties can enter into an agreement of reconveyance either orally or by written document and such an agreement may either be contemporaneous or subsequent to execution of sale deed, Proviso to Section 58(c) applicable only where deed itself contains a clause for reconveyance — Explained. — Rudra Muniswamy v Mallikarjunagoud and Another, 1989(3) Kar. L J. 367.

CONDITION TO RECONVEYExtension to Part B Mysore State — Applicability to agricultural land — Mysore Transfer of Property (Extension to Agricultural Lands) Act (32 of 1951). The provisions of the Transfer of Property Act, 1882, were applied to the former State of Mysore by the Part B, the States Laws Act, 1951 (Central Act 3 of 1951), with effect from 1st April, 1951, to the extent that any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws. Section 6 of the Act repealed any law in force in the State corresponding to any of the Act? or Ordinances extended to that area. After the enactment of Central Act 3 of 1951, the Mysore State Legislature enacted the Mysore Transfer of Property (Extension to Agricultural Lands) Act (Mysore Act 32 of 1951) replacing the corresponding Ordinance which had extended the provisions of the Transfer of Property Act, 1882 to the Mysore area. Held, the effect of Mysore Act 32 of 1951 was that provisions relating to mortgages in the Transfer of Property Act became applicable to the former Part B, State of Mysore. Hence, where in a transaction entered into after that date, the condition to reconvey is not embodied in the document effecting the sale, the transaction cannot be considered to be a mortgage and the vendee cannot lead oral evidence contrary to the recitals in the sale deed. — Chikka Venkatappa v Papanna, 1965(1) Mys. L.J. 141.

"MORTGAGE BY CONDITIONAL SALE" AND "SALE WITH CONDITION OF REPURCHASE"

Question is to be decided by gathering intention of parties from words used in deed and if there is ambiguity therein, surrounding circumstances can be looked into — In doubtful cases, construction favourable to party claiming right to redeem, is to be adopted — Where transaction recorded in single deed, though described as sale with condition that purchaser will reconvey property to seller if seller repays within specified period, sale consideration only and not market value

that may prevail at end of specified period, and where sale consideration was found to be less than market value prevailing at time of transfer, it is to be held that transaction "mortgage by conditional sale", creating relationship of debtor and creditor, with right to redeem remaining with debtor. Held: The following tests can be employed to distinguish 'a mortgage by conditional sale' with "a bona fide sale, with a clause to repurchase". Whenever the documents embodying the transaction has to be construed, the intention must first be gathered in the first place from the document itself. If the words are explicit clear effect must be given to them, if however there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. If the sale and agreement to repurchase are embodied in separate documents the transaction is not a mortgage. If the entire transaction is embodied in a single document, a presumption can safely be raised that the transaction is a mortgage, though such a presumption is always rebuttable by evidence. If a reading of all the clauses in the document indicate that the relationship of "debtor" and "creditor" subsists between the parties then it is safe to lean in favour of the transaction being a mortgage. Some of the methods of finding out "whether the relationship of creditor and debtor subsists".are: If the buyer agrees to transfer the property to seller for the same sum (with or without interest) "advanced by him and described as a sale price". If money paid by the buyer was not a fair price for the 'absolute purchase' of the property. This test to be applied in conjunction to the above tests. In doubtful cases Courts lean strongly to the construction most favourably to the person claiming right to redeem. - . . The transaction regarding sale and repurchase is embodied in a single document. It states "that the first defendant who was in need of money for improving certain other lands, house repairs and clearing debts wanted to sell the property and the plaintiff has agreed to purchase fora sale consideration of Rs. 2,000/-", that after the execution of the said document, the plaintiff shall enjoy the same as an absolute owner with all the rights of ownership. But the further statements or conditions "that in case the first defendant repays the sale consideration of Rs. 2,0007- after 6 years within 7 years from the date of sale, the plaintiff should reconvey without any obstructions or objections"; and the document is described by the parties as "a conditional sale". .... Regarding the market value of the property on the date of the document though neither of the parties have adduced any clear evidence during trial the plaintiff has pleaded her ignorance to a suggestion that market value of each gunta of the dry land in the year 1978 i.e., on the date of deed was valued for Rs. 500/-, i.e., more than 20,000/- per acre. 15 guntas of the land was mortgaged by the defendant for a sum of Rs, 1,500/- on 30-4-1979 which factor clearly shows the market value of the property alleged to have been sold is certainly very much more than Rs. 2,000/-, per acre. .... Thus, the deed fulfills the tests to hold it as a mortgage viz., the clauses regarding sale and condition of repurchase are expressed in a single document. The seller should resell the property at the same price advanced by the buyer and the market value is more than the price stated. .... For the reasons stated above, the substantial questions of law framed are answered holding that the transaction is a "mortgage by conditional sale" and the Courts below are correct in holding so and dismissing the suit of the plaintiff for declaration of title. — Smt. Nanjamma v H.N. Siddaiah, 2002(1) Kar. L.J. 239.

"MORTGAGE BY CONDITIONAL SALE" AND "SALE WITH CONDITION OF REPURCHASE"

In determining whether a given document is a mortgage, by conditional sale or outright sale with covenant to repurchase, the essential test is whether there has been a pre- existing relationship of debtor and creditor between the parties to the document or has the transaction evidenced by the document by itself created or brought about such relationship between them. In the absence of a debt owing by one to the other, no question of creating a mortgage can ever arise. All other considerations are relied upon or taken into account for the main purpose of determining whether there was such a relationship of debtor and creditor between the parties which was the cause or the occasion for the transaction evidenced by the document. AIR 1960 SC 301 and AIR 1966 SC 902, applied. Even, if a transaction could be regarded as a mortgage, where shortly after the execution of the document, the property had been transferred from hand to hand, every transferee purporting to purchase the entire interest in the property, the position would attract Article 134 of the Limitation Act. If the clause for repurchase may be regarded as specifically enforceable, the matter is one of discretion with the Court whether or not to grant such a relief to the plaintiff. The most important circumstance governing the exercise of that discretion is delay. Where, the right to enforce the covenant of reconveyance arose after a specific period, the right would get barred three years thereafter. The fact that there have been series of transfers wouid be a strong circumstance to exercise the discretion against the plaintiff. The intervention of the rights of the parties who could reasonably have taken the view that the document was not a mortgage or that the covenant for repurchase was subject to period of limitation, is also a consideration which is relevant to the exercise of discretion against the plaintiff. — Rajanna v Vs Bhandary, R.S.A. No. 367 of 1963, DD: 24-6-1966.

Where the deed guaranteed enjoyment of suit lands by mortgagee for a period of at least 8 years, and only thereafter the mortgagor had a right to claim a reconveyance on payment of full amount, held, the prescription of a longer period is indicative of intention of parties to create a mortgage — Explained. The learned Civil Judge has observed that the prescription of a longer period is indicative of the intention of the parties to create a mortgage, because in a case of outright sale with a condition to repurchase, a shorter period is normally prescribed. In my view the circumstance that the vendor had no right to repurchase the lands within 8 years is strongly indicative of a mortgagor-mortgagee relationship, rather than a vendor-vendee relationship. — Shankarappa v K. Srinivasa Murthy, 1990(4) Kar. L.J, 522.

MORTGAGE WITH A CONDITION TO RECONVEY OR OUT AND OUT SALEThe petitioner is the purchaser under the document for a total consideration of Rs. 8,000/- in the year 1967. The properties conveyed under the said documents are agricultural lands. Though, the antecedent relationship between the parties was that of decree-holder and judgment-debtor, the circumstances under which the respondent 1 and his brother sold the lands was with the object of protecting the other family properties from being sold for the debts and also to satisfy the decree and other debts. It can, therefore be reasonably inferred that the vendors voluntarily and with the unambiguous intention of disposing of the properties in order to discharge the several debts executed the deed of sale. No doubt, the document contained one other recital that in case the vendors were in a position to

repay the entire sale consideration to the purchaser after a period of five years from the date of the sale deed, the purchaser must reconvey the properties to the vendors. On the facts of the case it cannot be contended that the relationship of the parties was that of a debtor and creditor and that it continued even after the property was conveyed under the said document. It can safely be concluded from the facts of the case and surrounding circumstances that it was an out and out sale, and the agreement to reconvey which was incorporated in the sale deed, does not spell out any relationship of debtor and creditor though there was an obligation to Retransfer the property within the period specified and on satisfying the requirements of the said stipulation. The vendors lost this right of repurchase and the purchaser-petitioner perfected his title on account of their failure to ask for the reconveyance of the property within the stipulated time. — Kukappa Gowda v Veerappa Cowda and Another, 1988(1) Kar, LJ. 478.

The effect of the proviso to Section 58(c) of the Transfer of Property Act is that no document of sale can be treated as mortgage unless the document effecting the sale itself contains a recital to that effect. — B. Amin Bee v Sub-Divisional Magistrate, Sakaleshpur and Others, AIR 1980 Kant. 154.

MORTGAGE WITH A CONDITION TO RECONVEY OR OUT AND OUT SALE

Sale and unregistered agreement to reconvey — Construction — Registration — Indian Evidence Act, Section 92. The explanation added to Section 58(c) by Act 16 of 1938 which came into force on 1-1-1939 is not retrospective. Hence, a person is not precluded from making out a case of mortgage on the basis of more documents than one executed prior to 1-1-1939. By virtue of Section 92 of the Indian Evidence Act oral evidence for ascertaining the intention of the parties to the deeds is not admissible and the issue between the parties on the subject has to be decided on a consideration of the documents themselves with only such extrinsic evidence of circumstances as might be required to show in what manner the language of the documents is related to existing facts. What is ultimately decisive in all cases is the intention of the parties. In ascertaining that intention, the Court and the parties are limited primarily to the terms of the documents themselves, If the terms are clear and unambiguous, the only question would be, what is the legal effect of the words used in those documents. It is only in cases of ambiguity that it is possible to adduce and rely upon oral evidence within the limits prescribed by proviso 6 to Section 92 of the Indian Evidence Act with a view to ascertain how the language employed is related to existing facts. If upon such an enquiry the Court comes to the conclusion that the two documents together constituted a single transaction of mortgage, then both the documents, one of sale and the other of agreement to reconvey, must necessarily be registered before the transaction can be he!d to be valid and enforceable. If on the other hand the conclusion is that the transaction was one of absolute sale accompanied by a separate agreement for reconveyance or repurchase of the property, then the agreement would be one which evidences a collateral transaction nor required by law to be registered, because the agreement in view of Section 54 of the Transfer of Property Act will not create any interest in immovable property. The mere fact that the two documents were executed contemporaneously or that they came to be executed by virtue of a single arrangement or understanding between the parties

need not necessarily mean that they constitute a single transaction. — Janaki Bai v K. Subba Rao, 1962 Mys. L.J. Supp. 534.

SALE AND AGREEMENT TO RECONVEY — IF MORTGAGE.Where the registered deed was one of outright sale for consideration and there was no reservation therein to reconvey, and there was an unregistered agreement of same date to reconvey the property after five years on repayment. Held, they did not form part of the same transaction and the transaction was not one of mortgage. — Manjegowda v Shivalingegowda, 1980(1) Kar. LJ. Sh. N. 43.

SALE AND AGREEMENT TO RECONVEY — IF MORTGAGE.

One R executed a sale in favour of V his elder sister's husband who was a school master in another village 35 miles away. It recited that R was indebted to the vendee in Rs. 300 and that another sum of Rs. 100 was to be paid before the Sub-Registrar and that in consideration of Rs. 400 R sold the property to V. It was stated that V should be in possession paying assessment due during a period of 10 years and that R could pay Rs. 400 on the new moon day of Magh in the 10th year and obtain reconveyance and if no such payment was made the transaction would be an absolute sale. In fact, neither delivery of possession was made to V nor was there any payment of assessment by him. Held, the transaction was really a mortgage and not sale with a condition of repurchase. — Gopal Kamath v Krishna Bhat, S.A. No. 779 of 1961, DD: 9-3-1965.

SALE OR MORTGAGE — CONSTRUCTION.

A document entitled a sale, recited that the executants found it difficult to discharge a mortgage debt of Rs. 1,136 due to one R and therefore, they sold the land in favour of the ancestors of defendants for Rs. 1,136 made up of Rs. 1,136 and value of stamp paper, that the vendee might get the patta transferred to his name, that he and his descendants might enjoy the properties, effect improvements and that the executants and members of their families had no longer any right over the properties. Then the deed recited, that the executants had the right to pay up the sum of Rs. 1,136 within a period of 15 years and get the land freed, that if no payment of that amount was made within 15 years, the person in whose favour the document was executed would be entitled to enjoy the property 'on permanent right'. A charge was created on the property for the payment of the sum. The document recorded only a mortgage transaction and not a sale. The question whether a document which is ostensibly a sale deed is in reality a sale deed or only a pretence for a mortgage deed is in every case a question of fact to be determined by the contents of the document with such extrinsic evidence of the surrounding circumstances as might be required to show their relation to existing facts. — Kela Rajarama Rao v B. Hanumantha Bhatta and Others, ILR 1961 Mys. 542.

SALE OR MORTGAGE — CONSTRUCTION.

Whether a transaction is a mortgage by conditional sale or a sale with a condition for repurchase should be ascertained from the provisions of the document viewed in the light of surrounding circumstances. Where the document stated that if the transferor failed to pay within 8 years the sum of Rs. 600 (which was the consideration for the sale), then the sale should be treated as having become absolute. Held, the real intention was that no absolute title should pass to the transferee before the expiry of 8 years and therefore the transaction was a mortgage by conditional sale. In order to attract Section 58(c) it is not necessary that there must have been pre-existing relationship of debtor and creditor between the parties. While a provision for payment of interest may be a useful factor to indicate that the transaction was a mortgage, the absence of such provision does not mean it could not be a mortgage. The subsequent conduct of the transferor and his successors would not be admissible as evidence. — Veerabhadrappa v Rachappa Siddappa, (1957).

SALE OR MORTGAGE — CONSTRUCTION.

Where deed of conveyance stipulates that vendee who was put in possession of property, shall reconvey property to vendor if vendor repays within period of three to five years from date of deed, amounts received from vendee, the deed is to be held deed of sale with right to purchase, and not deed of mortgage by conditional sale — Vendor retains under such deed, right to repurchase and right is assignable — Agreement to sell suit property executed by vendor in favour of third party during subsistence of his right to repurchase is enforceable against vendor and vendee. The document executed is not a mortgage and it is only a sale with an option of right to repurchase by the vendor. ... By looking to the terms of the document, it become clear that whatever the rights which the second respondent had in respect of the suit property has been made over with an undertaking that the second respondent himself would clear off the debts payable to the appellant and get the deed registered. . . . The plaintiff has fully established her rights in respect of the suit property for a specific performance of the suit property in question. In that view of the matter, the 2appeal lacks merit and the same is dismissed. — S. Jyothi v Smt. N. Mariyamma (Deceased) by LRs and Others, 2000(5) Kar.LJ.603.

SALE OR MORTGAGE — CONSTRUCTION.

In the instant case though the document is described as a Sale Deed, nevertheless it contains the recital that if the vendors were to repay the consideration received under the contract within a period of six years, the vendee was to return the properties, of course by reconveyance. Therefore, the document satisfies the condition contained in the proviso to Section 58(c) of the Transfer of Property Act, thereby it enable the court to find out whether the transaction in question is in its true effect a sale or a mortgage transaction. As the parties themselves have treated the document as mortgage and the same has also been redeemed as per the evidence of D-l examined as P.W, 3, there should not be any difficulty in holding that the Exhibit P-4 was a mortgage by conditional sale and not a sale with a

condition of repurchase. — E.S. Venkatesha Gupta v Savithramma & Others, ILR1991 Kar. 2445.

SALE OR MORTGAGE — CONSTRUCTION.

Mortgage by conditional sale or sale with condition of repurchase — Transaction of sale and agreement to repurchase embodied in two separate documents — Transaction cannot be construed as mortgage even if two documents are contemporaneously executed — Intention of parties to be gathered from documents itself — Words used to be given effect to — Extraneous enquiry into or evidence regarding intention of parties — Ruled out. If the transaction of sale and agreement to purchase, these two transactions are contained in two separate documents even though those documents might have been executed at one and same time, the transaction cannot be considered or deemed to be a mortgage. Apart from that, it is also one of the well settled principle of law that if the terms of the transaction and the documents are express and clear, this Court has to gather the intention from the documents itself. Even in those cases where the agreement of sale and agreement to sell are contained in one and single document and the extraneous enquiry regarding the same is ruled out. "If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out". — Pandumng Gurunath Kulkarni and Others v Smt. Rukmini Bai and Others, 1996(1) Kar. L.J. 287A

SALE OR MORTGAGE — CONSTRUCTION.

Transfer of property — Whether amounts to mortgage by conditional sale or sale with condition of repurchase — Interpretation of deed — Deed putting transferee in possession in order, not only to clear existing debt of Rs. 1,000 due to him, but also to obtain from him another loan of Rs. 1,000, and condition in deed requiring transferee to reconvey property to transferor if latter repays Rs. 2,000 within six months from date of execution of deed — Deed, held, effects only transfer of possession and not transfer of ownership and money paid by transferee is not price but only by way of loan — Deed, in effect, does not create immediate sale but creates only agreement to sell at future date — Deed creates relationship of debtor and creditor, and not of vendor and vendee — In absence of anything in deed to suggest transfer of ownership for price, deed cannot be considered as deed of sale with condition of repurchase, and same is therefore to be held as deed of mortgage by conditional sale — Since it is held to be mortgage suit for redemption filed in January 1974 is within period of 30 years from date of execution of deed on 25-7-1951, as prescribed in Article 61 (a) of Limitation Act and is maintainable. Document does not per se indicate nor does it contain any expression to the effect that the property in the suit is being herewith transferred with full ownership rights or that the transferor was transferring full ownership rights in the property in favour of the transferee. What has been stated is that earlier B. Siddappa had taken a loan of Rs. 1,000/- on 25-6-1951 as he required money to run cinema business and he executed a mortgage deed which was registered with the Sub-Registrar. It has further been stated that for discharge of

said loan he required money and as he required further money to run the business, the site which was given in security the transferor, having agreed to sell, on the date of registration of Ex. P-3had received a sum of Rs. 1,000/-and that the other sum of Rs. 1,000 /- was going to be adjusted towards the old mortgage deed and thus he received entire sum of Rs. 2,000/- as sale consideration. In the deed it has been stated that possession of the property was given to the transferee and the transferee was free to make use and enjoy the said property in his own way, as he may wish. The deed does not per se state in clear and express terms that the owner of the property after having agreed to sell, is selling or is transferring the full ownership rights in favour of the transferee for consideration of Rs. 2,000/-. The deed further provides that if the sum of Rs. 2,000/- was returned within six months, the transferee would reconvey the property to the transferor. Having agreed to sell does not mean that by this deed, the owner has done an act to transfer the ownership rights in the property in favour of the transferee. It means actual sale has to take place subsequently by some act of the parties i.e., by transferring of ownership rights by the owner in favour of the transferee. Possession of the property no doubt has been given with a right to enjoy the property and its user in the manner and in the way the transferee desires. When ownership rights were not transferred and only possession appears to have been transferred, the deed even does not pass the test of sale, because sale is a transfer of ownership in the property. The possession of the property was given to the transferee to secure payment of Rs. 2,000-00 which the plaintiff had agreed to repay within six months and that is why he had agreed that if the present transferor returned the sum of Rs. 2,000/- within six months the property will be given back and reconveyed by the transferee to the transferor. The last clause in the deed further indicates the intention of the parties that for the present the deed is not to operate as the sale deed because it is very clearly indicated therein that it will start operating as absolute sale deed and be treated as absolute sale deed only in case of the transferor to pay that amount of Rs. 2,000-00 within agreed or stipulated six months period. .... The tenor of the deed and the terms thereof in absence of any expression indicating that the owner of the property was transferring ownership rights in the property, the transaction cannot be said to be a sale with an agreement to repurchase. The intention of the party was to secure the payment of money at the earliest and within six months from the transferor to the transferee. There did exist a relationship of debtor and creditor between the plaintiffs' father and defendant's father as transferor under the deed was indebted to the tune of Rs. 1,000-00. He again wanted to take loan of Rs. 2,000-00. . .... In this view of the matter, the deed cannot be said to be a sale deed or absolute sale deed with agreement to repurchase. It is a deed of mortgage by conditional sale. .... Thus having considered the deed to be a deed of mortgage by conditional sale and it being a mortgage, the suit is governed by Article 61{a). The present suit filed by the mortgagor for redemption cannot be said to be barred by limitation. Article 61 (a) of the Limitation Act provides a limitation of 30 years for a suit of redemption and to recover possession of mortgage. The suit in the present case for redemption having been filed in January 1974 that is well-within 30 years even from the date of Ex. P. 3 i.e. mortgage deed and the Trial Court, as such, rightly held the suit to be within time and rightly decreed the suit. — B. Jayashankarappa and Others v D.S. Gulivadi, 2000(4} Kar. L.J. Sh. N. 35.

On the question whether a usfructuary mortgage and a lease back by the mortgagee to the mortgagor form two distinct transactions, or, whether they form part of one and the same transaction, if the circumstances reveal that in leasing the property back to the mortgagor, the mortgagee intended no more than to resort to a device or arrangement to secure the payment of interest by the mortgagor on the mortgage money, the conclusion is that the lease is not a separate transaction but is really part of the mortgage transaction. The mortgagee in possession is entitled to the income from the property which is mortgaged and that income which he derives during the period he is in possession of the property is really part of the mortgage money to which he is entitled. So, in a given case having regard to the sequence of events and other relevant factors, if it would be legitimate to say that in leasing the property to the mortgagor, the mortgagee intended to secure for himself the income from the mortgaged property to which he would have been undoubtedly entitled if he had been in possession of the property, in the form of the rent payable by the mortgagor to the mortgagee, it would be reasonable to say that what was payable by the mortgagor to the mortgagee really and in substance represented die interest which the mortgagor agreed to pay and the mortgagee wished to receive from the mortgagor during the period, the mortgagor is in possession of the property. — Puttananjamma alias Savitramma and Another v P.M.. Channabasawanna and Others, 1965(2) Mys. LJ. 792.

Description of mortgage by itself not determinative of nature of mortgage but the terms of the mortgage coupled with the contemporaneous document, if any, concerning mortgage and the mortgaged property will be determinative of nature of mortgage — Features stated. — Kamalamma v Ramabhadra Gupta, ILR1988 Kar. 20.

The contents of the mortgage deed clearly bear out that the plaintiff had created an usufructuary mortgage in favour of defendant 1 for a period of 8 years from the date of its execution i.e. 2-8-1935 and it was redeemable on expiry of the said period. But there is a further stipulation in the said deed that if the mortgage money is not repaid on expiry of the said period, the mortgage deed will be treated as 'absolute sale deed'. The obvious purpose of incorporating the said stipulation was to take away the right of redemption on expiry of 8 years. Any such insertion in a mortgage to prevent redemption on repayment has been statutorily forbidden under Section 60 of the Transfer of Property Act, 1882. The stipulation providing for treating the said document as an absolute sale deed on expiry of 8 years on non-payment of debt was clearly void and of no effect. Accordingly, despite the fact that the appellant failed to repay the loan amount, on expiry of 8 years the mortgagee did not acquire any absolute title over the suit schedule property and his right in the property remained to be only that of a mortgagee. — Gundu Rao and Others v Gurrajachar (dead) by L.R. and Another, 1996(2) Kar. L.J. 418A.

The mortgagees were already in possession of the property in question by virtue of a lease executed by the mortgagors in their favour. The mortgage was executed

during the continuance of the lease and by the terms of the mortgage deed, the mortgagees were entitled to appropriate the rent payable towards interest due under the mortgage. The lease thereafter came to an end. Held, (i) On a construction of the document, that it was not a usufructuary mortgage. The mere fact that there was a provision in the mortgage deed that the rent payable by the mortgagees as lessees will be adjusted towards interest payable on the mortgage did not make the document a usufructuary mortgage. According to the definition of usufructuary mortgage, there must be earlier delivery of possession or a promise to deliver possession under the mortgage deed. (ii) The mortgagees must be held to be in possession of the mortgaged property as mortgagees and were bound under Section 60 of the Transfer of Property Act to deliver possession to the mortgagor on redemption. Where after the tenancy has come to an end the mortgagee continues in possession, he will be treated as mortgagee in possession. C. Venkateshiah and Others v M. Venkatakrishniah, AIR 1958 Mys. 20

Redeemable after two years on repayment of only the principal sum — Mortgagee leasing back the property to mortgagor's son for 11 months simultaneously with the mortgage — Stipulation in the lease agreement to enable the mortgagor to redeem the mortgage on the expiry of lease by repaying only the principal sum of the loan — Eviction of the tenant (mortgagor) for non-payment of rent and leasing out of the property to another — Mortgagor's suit for redemption of property without any payment — Whether the suit is maintainable. This is a case where the mortgagor has undertaken to pay only the principal amount and redeem the mortgage after a period of two years, and has given possession of the property to the mortgagee. There is no stipulation regarding the rate of interest in the document. The specific recital that the mortgagor would pay principal without any interest clearly shows that possession of the property was given to the mortgagee in lieu of interest. This is not a case where under the terms of the mortgage the mortgagee who is put in possession of the property is required to appropriate the income from the property towards interest at any particular rate and the balance towards principal. There is no bar for a mortgagee who has secured possession of mortgaged property leasing it back to the mortgagor and the fact that the property is leased back to the mortgagor does not by itself alter the character of the usufructuary mortgage into a simple mortgage, the rent being treated as interest, nor does it make the mortgagee liable to adjust the income derived by him from the mortgaged property towards interest and principal, even though the terms of the mortgage do not require the mortgagee to do so and on the other hand the mortgagor has undertaken to pay the principal and redeem the mortgage. In a case where the mortgagee leases back the mortgaged property to the mortgagor, he can enforce his rights under the lease transaction and recover rent as well as get back possession. While under the mortgage deed it is not redeemable for a period of two years, under the lease is only for a period of 11 months. There is a stipulation in the lease deed that immediately after completion of 11 months on the next day itself the defendant can get back possession. These features clearly indicate that this lease transaction was not a part of the mortgage transaction and it was an independent transaction. It is not disputed that when the plaintiff's son committed default in payment of rent the defendant filed HRC- No. 22 of 1973 for eviction under Section 21(l){a) and an order for eviction was passed. In execution of that order the defendant took possession of the property and the plaintiff at that time

did not file any objection before the Court contending that he was in possession of the property and that he could not be dispossessed on the basis of the eviction order. The defendant in exercise of his rights as a lessor secured possession and has subsequently leased it out to others. Under the mortgage, the defendant was entitled to be in possession till the mortgage money was paid and it is in exercise of that right he has leased the property and realised rents from the tenants. The defendant was not liable to adjust the principal amount out of the rents which he realised from the suit property. — Smt. K.S. Nagaratnamma v B.H. Range Gowda and Others, 1995(3) Kar. L.J. 566.

Plaintiff advanced a loan on the defendant executing a promissory note. Defendant deposited the title deeds relating to the suit property and handed over the letter referring to the equitable mortgage. The letter which contained a mere record of the events and did not contain the terms of the transaction, did not require registration. The essential question to be considered is whether the parties really intended that the document alone should constitute evidence of the transaction. — Rajamma v Mahant P. Krishnanandagiri, Goswamy, AIR 1973 Mys. 310.

The law does not require an actual physical delivery of the title deeds in order to create a mortgage. Even constructive delivery with intent to create security would be sufficient. If the documents have already been delivered to the lender either for the purpose of security of title or by way of safe custody or for any other purpose, it is open to the parties to create a mortgage by clear understanding between them and a clear declaration of intention by the borrower that the documents may be held by the lender as security for the loan advanced by him.A claim under a mortgage and a claim under a promissory note against the same defendants could validity be joined in view of Order 2, Rule 3(1) of the CPC. Even though a subsequent mortgagee was interested only in the mortgage claim and not the claim under the promissory note, Order 1, Rule 3 permits his joinder. Joinder of parties under Rules 1 and 3 of Order 1 and joinder of causes of action under Rule 3 of Order 2 both operate simultaneously. Once the joinder is permissible, the monetary jurisdiction of the Court depends on the aggregate amount or value of the subject-matter at the date of institution of the suit as provided in Rule 3(2) of Order 2 of the CPC. Though the causes of action on the mortgage and promissory note could be joined, they are distinct subjects within the meaning of Section 14, Mysore Court Fees Act. Hence, plaintiff should calculate the Court fees separately on the two claims and pay the aggregate of the fees so separately calculated. — State Bank of Mysore v Kotagi Eswarappa, 1963 Mys. LJ. Supp. 121.

MORTGAGE BY DEPOSIT OF TITLE DEEDS(i) Whether a valid mortgage can be created by depositing in a notified town — The title deeds relating to a property situated outside the notified town

(ii) Where a deposit of title deeds is made on a particular day with intent to create security thereon — Whether a subsequent execution and registration of a memorandum supersedes it(iii) If the memorandum confirming the deposit in a notified town is registered in a non-notified town — Does it invalidate the equitable mortgage already created(iv) Whether such a memorandum attracts stamp duty under Article 6 of the Schedule to Karnataka Stamp Act.Held: To create a valid mortgage by deposit of title deeds, there must be a delivery of the title deeds relating to an immovable property by the debtor, to a creditor or his agent, in a notified town with the intention to create a security thereon. In this case, the fact that the title deeds (Exs. P. 29 to P. 60) relating to the plaint schedule properties were delivered by the 4th defendant to the Bank on 17-1-1980 at Mysore which is a notified town and the fact that the delivery of such title deeds was with an intention to create a security on such title deeds for the amount advanced/agreed to be advanced on 16-1-1980, are not disputed. An equitable mortgage of a property which lies outside the territories of notified towns, can be validly created by delivering the documents of title to the creditor or his agent in a notified town. It is now well-settled that no memorandum or writing is necessary to create an equitable mortgage by deposit of title deeds. The equitable mortgage was complete by delivery of the documents with an intention to create security thereon. However, execution of a memorandum or document in regard to deposit of title deeds is not prohibited. If however the equitable mortgage is created by execution of the memorandum or if the memorandum embodies the bargain between the parties, then it will be liable for Stamp duty under Article 6 of the Schedule to the Karnataka Stamp Act and will also require registration. But if the memorandum or document is executed subsequent to the creation of the equitable mortgage, merely in confirmation of or as a record of the transaction, it neither attracts Stamp duty under Article 6 nor requires registration. The terms of the document itself and the surrounding circumstances will have to be looked into to find out whether the document is to be taken as embodying the express bargain between the parties or merely evidential in nature. Territorial restriction referred to in Section 58{f) has reference only to the delivery of the documents of title and not to the situation of the property mortgaged. Thus in regard to the plaint schedule properties situated in Srirangapama Taluk, an equitable mortgage can be created at Mysore which is a notified town. Once the mortgage is created in a notified town, the registration of the memorandum can be either at the town where the equitable mortgage is created or in the office of Sub-Registrar within whose jurisdiction, the mortgaged properties are situated. As long as the memorandum merely confirms an equitable mortgage already created in a notified town, the registration of the memorandum even outside the notified towns, will be valid. —State Bank of Mysore, Branch at Sree Malai Mahadesivara Hills, Kollegal v M/s. S.M. Essence Distilleries Private Ltd., Bangalore and Others, 1993(2) Kar. L.J. 649 (DB).

A mortgage of 1898 described as possessory mortgage stipulated for interest and fixed a period of 2 years for the mortgagor to pay the principal and interest and redeem. The mortgagor undertook to repair and maintain the house. The house did not carry any rent. Three months later a second mortgage was executed also described as possessory mortgage, stipulating interest and provided that in lieu of interest for the said amount the property had been given for a period of three

years. There was a further stipulation that if the mortgagor failed to pay the principal and interest due, the mortgagee could get the house sold through Court and recover personally the balance due, if any. The property mortgaged under the two documents was the same. Held, (1) The first mortgage was not a usufructuary mortgage, as no part of the usufruct was to be appropriated towards interest or even part of it towards interest. The stipulation that the mortgagee should be in possession during the continuance of the mortgage and that he should pay interest rendered it an anomalous mortgage, (2) The second document was also an anomalous mortgage, possession being with the mortgagee under one of the conditions of the mortgage. (3) It followed that though the first mortgage was redeemed, the mortgagee would be entitled to continue in possession until the other mortgage also was redeemed. (4) Further the mortgagee could insist upon the mortgagor redeeming both the mortgages under Section 61 of the Transfer of Property Act as it stood before its amendment by Act 20 of 1929. Even if the second mortgage could be considered as a simple mortgage and suit to enforce it would have been barred by limitation, the mortgagee was entitled to insist on the redemption of both the mortgages. (5) Section 61 of the Transfer of Property Act as amended by Act 20 of 1929, enabling the mortgagor to redeem one of the several mortgages in favour of the same mortgagee, was not retrospective, so as to defeat the mortgagee's claim for redemption of all the mortgages. The right of the mortgagee under the old Act to insist upon redemption of all the mortgages was a vested right in property. — Venkatesh jivaji Kulkarni v Kushnappa Rayappa 1967(1) Mys. L.J. 126.

One M mortgaged certain land to defendant 1 and later on executed an agreement in favour of defendant 1 under which the mortgaged property was delivered to the possession of defendant 1 'in consideration' of the mortgage debt and interest thereon. It also stipulated that defendant 1 should at the end of 10 years deliver possession of the land to M free from encumbrances. There was no stipulation for payment of the mortgage debt nor was the property delivered to the possession of defendant. 1 made security for the repayment of the loan. Held, the document was not a usufructuary mortgage deed and was admissible in evidence though not registered or stamped as a mortgage. Hirachand v Bharmanna, 1962 Mys. LJ. 669.

UNREGISTERED MORTGAGE DEED

In a suit for redemption, a condition precedent is that there should be a registered mortgage deed evidencing the mortgage of immoveable property for a sum of Rs. 100/- or upwards secured as mortgage money evidencing the mortgage as contemplated under Section 59 of Transfer of Property Act. ... A mortgage does not become complete and enforceable until it is registered as contemplated under the law as above and that if it is not registered, it cannot operate as a mortgage. In the instant case, the position of the respondent is no way better than a trespasser and the best course that was open to the respondent was to sue the appellant on his title instead of resorting to redemption suit, for the provision in Section 59 of the Transfer of Property Act is essentially a rule of law and not a rule of evidence. .... It is not the case of the respondent that the original of Ex. P-10 was a registered mortgage deed compulsorily registrable under Section 59 of the Transfer of Property Act and Section 17 of the Registration Act. Obviously, there is no worth

document produced by the respondent before the learned City Civil Judge to be evidenced as mortgage and as such, institution of the very suit by the respondent for redemption of mortgage is totally misconceived. — Ramlingappa v Gajendra Rao, 1997(3) Kar. L.J. 347.

One M executed a usufructuary mortgage in favour of defendant with a redemption period of three years. On the same day M executed an agreement of sale agreeing to sell the property to defendant within a period of three years. M thereafter sold the property to plaintiff who sued for redemption.

Defendant pleaded that the sale to plaintiff was sham and nominal. The suit was decreed but dismissed on appeal.Held,(1) On the question whether the sale to plaintiff was a sham and nominal transaction, the burden lay on the defendant. Where the Appellate Judge proceeded upon the basis that the burden of proof lay on the plaintiff and had recorded his finding on evidence which did not exist or which was quite opposed to both the pleading as well as the evidence of the defendant, the finding was erroneous liable to correction under Section 100 of the CPC.(2) An endorsement by the sub-registrar on the document that the money was paid in his presence has some presumptive value.(3) While a stipulation which is part of the mortgage may well have to be examined as to whether it is a clog on the right of redemption or not, an advantage obtained by the mortgagee under a transaction which is independent of the transaction of mortgage is never a clog.(4) Considered along with the evidence that the two transactions of mortgage and agreement to sell were being discussed together, the circumstance that there was an earlier usufructuary mortgage executed two years back with a period of redemption of 14 years, and the apparent absence of necessity for executing the second mortgage, the conclusion was irresistible that the two documents were intended to be and were two faces of the same transaction. The question is not whether the bargain is put in two different documents either of the same date or of two different dates or at different places, but one of substance.(5) If the two were parts of the same transaction, the effect was, that while the right of redemption is to arise after the expiry of 3 years, the mortgagee's option to purchase could be exercised before the expiry of the 3 years. Hence, the agreement to sell operated as a clog on redemption and was not valid.A bargain which totally destroys the right of redemption within 3 years when law gives 60 years to redeem should be regarded as unconscionable, AIR 1958 SC 770, ref. — Chikkaramanna v Rajamma, R.S.A. No. 426 of 1963, DD: 11-7-1966.

Mortgagee maintaining possession as against person with paramount title, cannot deny mortgagor's title, who can redeem. — N. Nanjappa v Siddiah, AIR 1973 Mys. 28.

Revenue sale on failure of mortgagee in possession to pay revenue purchase does not give title against all the world. Mortgagor is entitled to redeem. — H.K. Dasappa Setty v M.C. jayakriti, 1974(1) Kar. L,J. 1.

Condition in the mortgage deed that if mortgagors did not pay the amount within 10 years from date (if mortgage, the deed to operate as a deed of sale — Condition held to be a clog on equity of redemption and as such invalid and the mortgage will continue to subsist until period for mortgage for redemption imposed by law of limitation expires. One of the conditions in the mortgage deed was that if the mortgagor did not pay the amount within 10 years from the date of mortgage, the deed of mortgage itself would be treated as a deed of absolute sale. The lower appellate court and the trial court considered that such a condition in the deed of mortgage should not render the mortgage to be a mortgage by conditional sale and considered that the condition imposed was a clog on the equity of redemption. Any condition which will be a clog on the equity of redemption will be invalid and the mortgage will continue to subsist until the period for mortgage for redemption imposed by law of limitation expires. In this case, such period not having expired and mortgage having subsisted, on such findings of fact this court need not interfere under Section 100 of the Code of Civil Procedure. — Raghunathji Sarafv Syed Shah Baqur Hussaini & Others, 1991(1) Kar. L.J. 107.

The puisne mortgagee has a right to redeem the prior mortgage. If he does so he acquires the rights of the prior mortgagee also. But the mortgagor can exercise his right of redemption against every one of the mortgagees. Such a right can be defeated by the mortgagee only by foreclosure. Though the puisne mortgagee can redeem the prior mortgage he cannot deprive the purchaser in the prior mortgagee's suit of the right of redemption. Which belonged to the original mortgagor and has vested in the purchaser in the prior mortgagee's suit. Hence, as between the two purchasers it is only the purchaser in the prior mortgagee's suit who has priority of right of redemption. — Lakshminarasamma v C.V. Raghavachar, AIR 1976 Kant. 209.

The prior mortgagee when he himself purchases the mortgaged property becomes entitled as assignee of the equity of redemption to redeem the subsequent mortgagee. If there is a conflict between the right of the prior mortgagee as assignee of the equity of redemption to redeem the puisne mortgagee and the right of the puisne mortgagee to redeem the prior mortgagee, the right of the prior mortgagee takes priority, while the puisne mortgagee has a right to redeem the prior mortgagee, the prior mortgagee after he himself auction purchased the property has the last right of redemption as the assignee of the equity of redemption; and the transferees of the prior mortgagee would be entitled to possession of the property. — C.V. Raghavachar v Lakshminarasamma, 1980(2) Kar. LJ.Sh.N.105 (SC).

Where the Government had no right to bring the properties to sale in execution of the decree of the Trial Court for payment of Court fee to Government which had been set aside by the Appellate Court, but still the decree was executed, the sale must be held to be void and can be ignored. A sale held in execution of a void decree is inoperative and void in law and does not affect the rights of even the parties to the suit. Hence, the person having an interest in the equity of redemption of the property sold under a void sale can sue for redemption. — Ishwara Bhatta v Subbanna Bhatta and Another, 1963(1) Mys. L.J. 219 : ILR 1962 Mys. 881.

Section 60 incorporates a rule of justice, equity and good conscience and gives statutory recognition to the right of redemption, which cannot be fettered by any condition which impedes or prevents redemption. If it does so, such a condition must be declared void as a clog on redemption. The proviso however provides for the exceptions to the rule, and therefore before a mortgagee can contend that the right to redeem the mortgage has been extinguished he must establish that it has been extinguished by the act of the parties or by decree of a court. The authorities referred to herein clearly support the contention of the plaintiffs appellants that unless the order of the court in clear words extinguishes the right of redemption, it cannot be held that the right of redemption, stands extinguished. The mere fact that a 'preliminary decree had been passed earlier and in terms thereof payment was not made, is no justification for the contention that another suit for redemption of the mortgage cannot be filed. The contention may be valid if a decree is passed by a court in terms of Order 34, Rule 3(2) of CPC, which corresponds to Section 93 of the Transfer of Property Act referred to by the Privy Council in Raghunath's case. Admittedly in the earlier preliminary decree there is no order extinguishing the right of redemption by debarring the plaintiffs from right to redeem the mortgaged property. Obviously therefore, the right to redeem the mortgage was not extinguished and the plaintiffs were therefore entitled to file another suit for redemption of the mortgage. Therefore, in the absence of a clear indication in the decree passed in an earlier suit for redemption debarring the mortgagors from all right to redeem the mortgaged property, the right to redeem the mortgage subsists and a second suit to redeem the mortgage is maintainable. It is neither barred by Section 47 CPC nor is it barred by the principle of res judicata. In view of the above, it must be held that the courts-below erred in law in dismissing the redemption suit filed by the plaintiff. — Kalaiah @ Kalegowda & Another v Lingamma & Others, ILR1991 Kar. 1213.

Plaintiff executed a usufructuary mortgage in favour of defendant on 25-5-1951 for Rs. 3,000, under which the rent of the property was to be adjusted against the interest payable on the mortgage amount and a period of six years was fixed for redemption. Actually, the defendant advanced only Rs. 283. Plaintiff executed a further mortgage on the same property for Rs. 1,000 on 6-9-1953, under which, the parties agreed that within a period of three years the second mortgage would be redeemed and in the event of the mortgagor not doing so, the mortgagor would pay the amount due under the second mortgage before redeeming the first mortgage. The plaintiff filed a suit to redeem the first mortgage. Held, (1) The clause in the second mortgage could not be construed as a contract to the contrary as to take away the right of the mortgagor under Section 61 of the Act to redeem only the first mortgage. The recital in the second mortgage did not debar the mortgagor from redeeming the first mortgage alone without redeeming the second mortgage. In order to deprive a mortgagor the benefit of Section 61, it is necessary to find out whether the recitals lead to one and the only conclusion viz., that the mortgagor is thereby debarred from exercising his right of redemption of the first mortgage without redeeming the second. If the language of the recital is either not clear or equivocal, the construction that should be placed on that should, be one which would enure to the benefit of mortgagor. (2) Since the mortgagee had advanced only a sum of Rs. 283 and had failed to advance the rest of the amount, Section 77 of the Act was not attracted and he was liable to render accounts with regard to the profits of the mortgaged property. — Alamelamma’s case , AIR 1972 Mys. 178.

The Civil Court in a mortgage suit cannot pass an order directing the tenant to deliver possession because it would amount to eviction of a tenant which is exclusively the task of a special Court under the relevant law. But, when the finding is that he is not a tenant, question of giving that benefit under the enactment would not arise. No substantial question of law really arises for consideration and therefore this second appeal is misconceived and it is rejected. — Abdul Aziz v Kubrabee and Others, 1990(4) Kar. LJ. 234.

Premises in possession of tenant mortgaged to him — Possession to remain with mortgagee in lieu of interest on the mortgage amount — Period of mortgage fixed for 5 years — Mortgagee given the right to sell the property to recover the mortgage amount — Whether the mortgagee's rights as tenant was suspended on the execution of mortgage and revived on determination of the mortgage. The terms of the mortgage deed substituted the existing lessor-lessee relationship by mortgager- mortgagee relationship. It is not a case of merger of tenancy rights in the mortgagee's rights, as the mortgagee's rights cannot be considered as superior to tenancy rights. Further, it is not a case of the tenancy rights remaining suspended during the mortgage-period and getting revived on the determination of mortgage, as to tenancy rights survived when they were surrendered on the execution of mortgage. Therefore the mortgager is entitled to possession of the mortgage property on redemption. Recourse to the provisions of the Karnataka Rent Control Act, 1961 is not called for as the mortgagee is not a tenant. The mortgager is entitled to mesne profits also from the date of deposit of mortgage money in the Court. — Narayan Punnappa Khilare (since deceased) by his LRs. and Others v Sripad Gangadhar Sabannawr and Others, 1995(2) Kar. L.J, 237.

Usufructuary mortgage — Creation of, by lessor in favour of sitting lessee, for money lent to lessor by lessee in possession of suit property — Whether creation of such mortgage has extinguished mortgagee's right as lessee and whether he should be directed to deliver actual or physical possession of mortgaged property to lessor-mortgagor on redemption of mortgage, depends upon terms and conditions of mortgage deed — Where mortgage deed stipulates that neither any interest is payable by mortgagor-lessor nor is any rent payable by mortgagee-lessee, both being same amount, and calls upon mortgagee-lessee only to discharge mortgage deed on redemption of mortgage on expiry of ten years, and does not stipulate mortgagee-lessee to deliver actual possession of mortgaged property to lessor-mortgagor, no implied surrender of lessee's right can be inferred therefrom — On redemption of mortgage, held, lease subsisted and mortgagee is entitled to be in possession as lessee, and lease can be determined only according to law. Held: It is seen from the contents of the documents, the mortgagee who was in possession of the property was a lessee and in view of the interest he could be in possession of the property for a period of 10 years. After the period of 10 years, paying the amount, the mortgage would be redeemed. During the expiry of 10 years, if the mortgage is not redeemed when the mortgage amount is paid to the mortgagee he has to discharge the mortgage deed. There is no mention in the mortgage deed that he has to deliver back possession. Thus it is seen that before executing the mortgage deed, the mortgagee was in possession of the suit schedule property as a lessee under the mortgagor. During the pendency of the mortgage the mortgagee in lieu of interest to the money advanced he could be in possession of the property. After the expiry of the mortgage when the amount is paid he has to discharge the mortgage deed. In view of the contents of the documents, it cannot be said that there was merger of the leasehold and the 1st defendant surrendered his leasehold right and the same could not have been revived after the redemption of the mortgage. Even the contents of the document make it clear that subsequent to the payment of the mortgage amount the mortgage stands discharged and no question of delivering the possession of the mortgaged property. Under these circumstances, it is to be held that the contention of the 1st defendant that the leasehold right or his tenancy right would survive subsequent to discharge of the mortgage has to be upheld. Under these circumstances, the appeal has to be allowed in part for the right of redemption of the mortgage but the plaintiffs will not be entitled to recover possession of the same. — Mohammadgouse Mattesab Yavagal v Smt. Pramilabai Kom. Ganeshbhqt-Salihalli and Others, 1998(5) Kar. L.J. 49.

Construction put up, on land mortgaged, becomes accretion to the mortgaged security. — B.S. Madhava and Company v Kapila Tactile Mills Limited by Official Liquidator, 1967(1) Mys. L.J. 567.

Properties acquired by darkhast grant adjoining mortgaged properties not by virtue of the mortgage or as mortgagee do not form accession to the mortgaged properties. — Chinnappa Gowda v Chennappa Gowda, 1975(2) Kar. L.J. Sh. N.71.

Redemption — Kumki land, when accession to mortgaged property — Right of mortgagor to redeem Kumki — Undertaking to pay improvements — Effect. —Where the assignee of a usufructuary mortgagee's rights took the assignment for the purpose of getting lands on darkhast and the orders granting the lands were made under the Madras Board of Revenue Standing Order No. 15 including BSO No. 15, para 14 and in none of the orders was charged on the standing trees. Held, the circumstances showed that the grants were made on the basis ofj the preferential claim of the mortgagee as wargdar of the mortgaged properties. 'The levy of back assessment is only a prima facie indication that the grant was in grantee's own right, where there is no other indication. But in view of the definite indication in the orders of grant in the present case, the grants must be held to be on the basis of the Kumki rights. Hence, the lands formed an accession to the mortgaged property and were liable to be redeemed along with the mortgaged property. As the value of improvements claimed by the mortgagees was 23 times the mortgage money, it cannot be considered to be either reasonable or not a clog on the equity of redemption. The undertaking in the mortgage deed to pay for improvements must be understood as being an undertaking to pay for any reasonable improvement — Mammunhi Beary v Neelamma, AIR 1976 Kant. 21.

Interest is payable by the mortgagor on the cost of improvements effected by the mortgagee only in the absence of a contract to the contrary. There is a contract to the contrary when a clause in the mortgage deed provides that no interest shall be payable by the mortgagor to the mortgagee on the mortgage debt. Where the mortgage deed recites that excess amount spent by the mortgagee shall be treated as part of mortgage amount, no interest is payable on it. — C. Srirama Setty v P.H. Rama Rao, 1968(2) Mys. LJ. 116.

A deed of mortgage with possession which provides that the income of the mortgaged property is to be a substitute for interest and the mortgagor is under no obligation to pay interest as the mortgagee is given a right to enjoy the usufruct irrespective of its quantum in lieu of interest and contains no provision that any portion of the income is to be applied towards the principal and under which the mortgagor expressly binds himself to pay the principal amount within a specified period has the characteristics of both usufructuary and simple mortgages and may be called a simple usufructuary mortgage. The mortgagee is entitled to sue for sale on foot of such a mortgage. The mere fact that persons other than the owner of the property mortgaged join the owner in executing the deed of mortgage cannot imply that they have interest in the property. Hutchappa v Mallappa, 1956 Mys. L.J. 92 : ILR1955 Mys. 15.

Defendants had executed two mortgages Exts. A. 1 and A. 2 in favour of plaintiff. By reason of default in payment of interest, principal and interest due under both

the mortgages became due and plaintiff issued a notice calling for repayment of both the debts, but plaintiff sued for recovery of interest due in respect of second mortgage. Plaintiff instituted the present suit for the entire amount of principal and interest due under both the deeds. Held, (1) Suit for the recovery of the principal sum due under the second mortgage was barred under Order 2, Rule 2 of the CPCUnder Section 67-A of the Transfer of Property Act, the plaintiffs were bound to sue on both the mortgages when a suit was brought for the recovery of interest on Ext. A. 2 and that suit should have been brought for the recovery of the entire mortgage money due under both the mortgages. (2) But the effect of Section 67-A was not to fuse the separate and distinct causes of action into an integrated cause of action and therefore the present suit for recovery of money due under Ext. A. 1 was not barred. In the absence of a prohibition in Section 67-A similar to that contained in Rule 2 of Order 2, a mortgage on which the mortgagee did not sue under Section 67-A does not perish by reason of the omission to conform to the requirement of that section. — Dr. P. Subba Rao v Rudramma, 1964 Mys. L.J. Supp. 456.

Sale of property in execution proceedings — Four separate suits instituted for recovery of various amounts on one and the same property — Decrees also obtained — Whether the sale is invalid as being opposed to Section 67-A on account of failure to consolidate all the claims in one suit — Whether the appellants estopped from agitating the defence open under Section 67-A of the Transfer of Property Act in the execution proceedings after having waived the contentions by consenting to the decrees being passed separately. Held: Admittedly respondent 1-Bank held four mortgages in respect of the same property and in the absence of the contract to the contrary, it is bound to sue on all the mortgages in respect of which the mortgage-money has become due. This contention was required to be raised by the appellants when the suits were filed and were pending in the Court of the learned Civil Judge before they resulted into decrees. The appellants and other judgment-debtors submitted to passing of decrees in all the suits and they put forth no contentions with regard to violation of Section 67-A of the Transfer of Property Act, 1882 when the four suits were pending before the learned Civil Judge. After the execution proceedings were initiated out of which the present appeal arises, on service of sale notice, the apellants failed to put forth these contentions before the Trial Court. Thus for their failure to agitate the matter at the earliest, they are prevented to raise this contention afresh in this appeal. Even otherwise also, there is no error in bringing separate suits though Section 67-A provides for consolidation of the suits. It is apparent that the appellants and respondents 3 to 5 have waived this contention when they consented to decrees being passed separately in four suits as noted above. Therefore by their conduct, they are now estopped from agitating the defence open under Section 67-A of the Transfer of Property Act in execution proceedings. — Ms. Annapurna Industries, Rice and Poha Mills, Hebbandi, Bhadravathi and Another v Syndicate Bank, Bhadravathi Branch and Others, 1993(1) Kar. L.J. 519B

In case where mortgagor fails to deliver possession of the property mortgaged, although the mortgagee is entitled to such possession, the mortgagee acquires a right to sue for the mortgage money on the date on which the mortgage comes into being and there is neglect on the part of the mortgagor to deliver possession. Limitation under Article 132 of the Limitation Act commences to run from the date on which the mortgagor who was under a duty to deliver possession does not deliver possession. Section 67-A of the Transfer of Property Act which provides for consolidation, incorporates no prohibition against institution of a suit on one of the two mortgages in a case where no objection to the form of the suit is taken on the earlier occasion. Puttamadamma v Puttappa, AIR 1969 Mys. 20.

Mortgagee who has lost possession could sue either for money or for possession. — Gundabai alias Saraswatibai v Ramanagouda Mallanagouda Patil, AIR 1971 Mys. 312.

The mortgage deed need not necessarily contain the words "without the intervention of Courts". Where the deed stated that mortgagee shall be entitled to cause the mortgaged property to be sold by revenue sale, it would be sufficient to confer express power of sale without the intervention of the Court. — State of Mysore v Dasappa Naidu by L.Rs, 1968(1) Mys. LJ. 69.

Usufructuary mortgage — Deed providing for reimbursement of amount paid towards kandayam — No provision for interest — Whether mortgage -entitled to interest on kandayam amount paid by him. Where a deed of usufructuary mortgage provided only that the amount paid by the mortgagee on account of the kandayam of the mortgaged property should be reimbursed to him and contained no provision for interest on such amount. Held, that the mortgagee was not entitled to interest on the kandayam paid inasmuch as there was a contract to the contrary within the meaning of Section 72 of the Transfer of Property Act. — Puvadi Chayanna v Nanjappa, 1956 Mys. LJ. 5.

In view of the provisions of Section 73 read with Section 100 of Transfer of Property Act, where land subject to a charge is compulsorily acquired under the provisions of any law, the charge against such land must be enforced against the substituted security. In this case the substituted security is the compensation payable to the defendant. Since the entire lands have not been acquired, and only a portion has been acquired it would be necessary to make an apportionment and to fix liability on the defendant having regard to the extent of land retained by him, which is subject to the charge. — Manjunatha Adiga v Krishnaivniamma, 1990(3) Kar. L.J. 597.

LAND ACQUISITION WHEN, THE MORTGAGEE IS IN POSSESSION

Where a land is being acquired under the Land Acquisition Act and the mortgagee is in possession, there is nothing in Section 23(1) of the Land Acquisition Act, which entitles the mortgagee to claim damages for the loss sustained by him for deprivation of his possession prior to the expiry of the mortgage period. When a mortgaged property is acquired, the mortgage security gets converted into money which the mortgagee may claim. If a part of the mortgage security is acquired, the mortgagee may call upon the mortgagor under Section 68 of the Transfer of Property Act to give additional security and if the mortgagor defaults, the mortgagee could sue for the entire mortgage money. Section 73(2) of the Transfer of Property Act does not deprive a mortgagee of his right to claim any amount representing the value of the structures belonging to him, if any existing on the date of the preliminary notification out of the compensation awarded. — Sankappa Poojari v Deputy Commissioner, Coorg, 1969(2) Mys. LJ. 473.

Applicability of Indian Usurious Loans Act, Sections 2(3} and 3 — General Clauses Act, Sections 3(13) and 5(3) — Coming into operation and commencement of Act — Distinction. Plaintiffs executed a usufructuary mortgage of property situate in the Civil Station, Bangalore on 14-7-1933. In January 1943, the plaintiffs made a deposit under Section 83, but as defendant did not accept the money, the petition filed. The present suit for accounts was not a suit for redemption within Section 2(3)(c) of the Usurious Loans Act. This suit did not ask for any of the reliefs grantable in a suit for redemption recognised by Section 60 of the Transfer of Property Act, viz., delivery of title deed, delivery of possession and right to transfer of the mortgaged property. These reliefs had been obtained on the application under Section 83. The fact that the taking of accounts could have been asked for and granted in a suit for redemption did not render the suit for accounts only a suit for redemption. Nor was the present suit one for enforcement of a loan within Section 2(3)(b). The section envisaged a suit by the creditor and did not cover a suit by the mortgagor or for accounting under Section 76 of the Transfer of Property Act. The further requirement of clauses (b) and (c) of Section 2(3) that the agreement must have been made or security given after the commencement of the Act was not satisfied in this case. Plaintiffs were entitled to interest from the date of suit. K. Manickchand v Elias Saleh Mohamed Salt, AIR 1969 SC 751.

Mortgagee in possession raising crops — Inference is that he received the produce and extends limitation. — Paid Kempegowda and Others v Chanruweeriah (deceased) by LRs, AIR 1958 Mys. 43 :

Municipal taxes are charges of a public nature within Section 76(c) of the Transfer of Property Act. The liability of the mortgagee under Section 76(c) being, so far as public charges are concerned, to pay only such charges as accrue due during the subsistence of the mortgage, he commits no wrong in failing to pay the arrears which have accrued in respect of an earlier period and he cannot be said to take advantage of his own wrong in purchasing the mortgaged property in a sale held for the recovery of such arrears. In order that the mortgagee or other qualified owner should become actionable for any advantage gained by him to the derogation of the rights of the other persons interested in the property, it must be shown that he has availed himself of his position as mortgagee or qualified owner. It cannot be said that a mortgagee avails himself of his position if he purchases the property in a sale brought about for default of arrears which he is not under a duty to pay. In such a case his position is no different from that of a stranger who purchases the property under such a sale. A mortgagee does not become a trustee for the mortgagor in respect of all matters merely on account of the relationship of mortgagor and mortgagee. Before the principles of Section 90 of the Trusts Act can be invoked it must be shown that the advantage gained by the mortgagee is referable to some act or omission which as mortgagee he was under a duty to refrain from. H. Subba Rao v H.D. Payappa, 1963 Mys. L.J. Supp. 1.

It is not a question of mortgagee being in possession of funds which is even part of the mortgage money, but question is one of the obligation on the part of the mortgagee to pay the taxes that had fallen due prior to the mortgagee coming in possession of the mortgaged property. "His liability as a mortgagee" could arise only if he comes in possession of the mortgaged property by virtue of the mortgage under Section 76(c). It is apparently clear from the facts of the instant case that the courts below found that the arrears of tax did not fall due on account of the default or wrongful act committed by the mortgagee to gain an unfair advantage of his possession as mortgagee. Therefore the courts below were right in finding that the plaintiffs cannot seek possession of the properties in question by redemption as the mortgage no longer subsists. — M.V. Premkumar and Others v C. Sreemma Setty (dead) by LRs. and Another, 1991(3) Kar. LJ. 290 : ILK 1992 Kar. 894.

Where the suit was for recovery from co-mortgagors by way of contribution on the change of the mortgage properties, limitation stated from the date when plaintiff made the payment of the money and redeemed the properties. Mohaddinsaheb Shikandar Saheb Maniyar and Others v Hasabsaheb Karimsaheb Maniyar and Others, AIR 1983 Kant. 13

A mere recital in a document as to the existence of a past liability coupled with a statement of its discharge does not constitute acknowledgement. (Where the Transfer of Property Act is not in force) where a mortgage with possession is made by two persons, one of them only redeems discharging the whole of the common mortgage debt, he will in equity, have two distinct rights. Firstly, to be subrogated to the rights of the mortgagee discharged vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the share which belonged to the other co-mortgagor. A correlated right also accrues to the co-mortgagor to redeem his share and get possession on payment of his share of the liability to the redeeming co-mortgagor. This right subsists so long as the latter's right to contribution subsists. Since subrogation of the redeeming mortgagor would give him the right under the original mortgage to hold the non-redeeming mortgagor's property as security to get his share of the liability, it follows that a suit for possession of his share by the non-redeeming co-mortgagor may be filed either within the limitation prescribed for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor. — Valliamma v Shivathanu, 1979(2) Kar. L.J. Sh. N. 94 (SC).

A co-mortgagor is not in the same position as a puisne mortgagee whose position is that of an assignee. Besides, the right of subrogation, the co-mortgagor acquires a right to contribution under Section 82. Limitation for a suit for contribution runs from date of payment and not from when the mortgage debt fell due. — Kenchappa v Rokhade Nagappa and Others, AIR 1957 Mys. 1

A document of mortgage is compulsorily registrable. If not registered, the deed can only be used to evidence debt. AIR 1964 Pat 241.

In a mortgage by conditional sale the debtor and creditor relationship is found where as sale is the out and out transfer of all the rights of the owner and in a sale with a condition to repurchase, the additional ingredient is that, the seller reserves a personal right to repurchase the property. Bhoju Mandal case: AIR 1963 SC 1906. Where there is no debtor and creditor relationship, the transaction cannot be termed as mortgage by conditional sale. Tamboli Ramanlal Motilal case: AIR 1992 SC 1236.

The mortgagor’s right to redeem the mortgage survives until the sale of mortgaged property by the mortgagee is completed by a registered sale deed. Narandas Karsondas case AIR 1977 SC 774.

REDEMPTION

Maintainability of suit for, where property mortgaged is not identifiable — Where mortgage is proved, relief of redemption and actual possession cannot be denied to mortgagor merely because property mortgaged several years ago is not identifiable now— Identification of mortgaged property can be relegated to Execution Court. Held: That the property mortgaged, is not in dispute. It is not open to the parties to contend that either the mortgagor or the mortgagee is not aware of the property mortgaged. The rights of the persons in respect of property can never be denied for want of identity. Whenever a question of identity is introduced, it must be construed as an evasive attitude adopted by the persons to avoid and escape from the consequential liability under a decree which has to be put in execution. Identity can never stand in the way of denial of title or deprivation of possession. . . . An immovable property cannot vanish in thin air. It must be available though there may be addition over it by construction or divisions. No person can be deprived of his property on the ground of want of identity. — Deepchand (deceased) by L.Rs v Amina Bai alias Aminabiyamma (deceased) by L.Rs and Others, 1999(1) Kar. L.J. 403.CASE LAW ON SALE AND GIFT OF IMMOVEABLE PROPERTY 1. A transaction would be a sale only if the entire consideration is money. — P.R. Srinivasan v The Corporation of the City of Bangalore, 1957 Mys. L.J. 418 : ILR 1957 Mys. 167.

2. Incorrect recital regarding consideration by itself does not lead to an inference that intention of parties was to convey title only on payment of consideration, or price can be promised or paid at a later date also — Explained. — G. Hampamma v K.S. Kalingappa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.

3. Dower due to a Muslim wife from her husband is valid consideration to support a sale in favour or the wife in payment of the dower. — Union of India v K. Mohammed Hussain, 1966(1) Mys. L.J. 279.

4. Muhammadan Law — Hiba-bil-iwaz — Gift for consideration is no gift but sale — Transfer of property by Muhammadan husband to his wife in settlement of her claim of mahr or dower debt is sale and not hiba or gift — If property so transferred is immovable property of value of one hundred rupees or upwards, title to property can be conveyed only by registered instrument, and not by mere oral agreement followed by delivery of possession — Where Muhammadan wife was put in possession of immovable property by her husband in settlement of his dower debt, and transfer was not effected by registered instrument, but only by oral agreement, there is no conveyance of title in favour of wife, and consequently sale effected by wife subsequently to third party is invalid. Held: A gift given in lieu of mahr, if not registered within the meaning of Section 17 of the Registration Act, such a gift is invalid in the eye of law. — Smt. Marembi and Others v Umar sab and Another, 1998(4) Kar. L.J. 643.

5. Oral sale of immovable properties over Rs. 100/- in value is of no effect and cannot be specifically enforced. — Mallangowda and Others v Gavisiddangowda, 1959 Mys. L.J. 261 : ILR 1958 Mys. 746 : AIR 1959 Mys. 194.

6. The fact that under Section 54 of the Transfer of Property Act, a sale of property of the value of less than Rs. 100 could be effected by mere delivery of possession does not mean that when parties choose to write out an instrument of sale, such an instrument need not be registered and the unregistered document cannot be used to make out the character of the possession. Section 49 of the Registration Act and Section 54 of the Transfer of Property Act prohibit such use. The vendee can prove by independent evidence that he is in possession of the property, which formerly belonged to somebody else, and that his possession can be traced to delivery of possession by that other person pursuant to a transaction of sale. The benami nature of a transaction or that the real title vests in the claimant has to be proved by evidence a acceptable to a Court of law. Where the documents relating to the property are inadmissible in evidence, custody of those documents by the claimant cannot have any value. In a case where the circumstances and arguments relied upon by the claimant are equally available to the alleged benamidar, the only safe course for the Court is to give effect to documents relating to the property which are registered as required by law. — K. Thimmiah v B.H. Nanjappa, 1965(1) Mys. L.J. 44.

7. RIGHT OF RECONVEYANCE Where the right to get a reconveyance was personal to the promisee, it is a personal right and cannot be transferred. — Thippaiah v Mallamma, ILR 1973 Mys. 738.

8. ABSENCE OF PROOF OF PAYMENT OF SALE CONSIDERATION — SALE NOT INVALID It is well-settled principle of law that a deed of transfer of immovable property whether by sale or mortgage which has been executed according to law and has been registered, becomes operative to pass on the title and the property from transferor to the transferee, namely, from the vendor to the vendee or the like, and further even if in a deed, where, it is mentioned that consideration expressed in the conveyance has been paid, but, as a matter of fact, it has been found that it has not been paid, does not render the transaction to be void for want of consideration. Once the transferring of immovable property has been done by a registered document, transaction becomes complete and effective and the passing of title or interest is not postponed, even till the future date of payment, until and unless there is an express covenant or term to that effect, in the

deed, agreed between the parties. If the consideration has not been paid, then it is always open to the vendor to realise the consideration by legal means. The deed in the present case does not show by any of its terms that the passing of interest or title in the property had been postponed, instead, it is provided that vendor by this deed transfers and conveys the absolute ownership of the property. So, the deed unambiguously appears to be a sale deed. This deed does neither contain any term in writing in it to indicate that the property transferred is a security and the transfer of interest thereunder is suspended, nor does it provide that after the repayment of the alleged loan, the property will stand or be reverted or be reconveyed. No such term is contained therein. — Dr. ]acob Ijjzarus Chelly v Dokka Samuel, 1995(5) Kaj. L.J. 692A.

9. Consideration need not be solely money consideration though in an agreement, sale price is the main consideration — If there are other considerations also by way of reciprocal promise then a party chosing to enforce the contract cannot dissect the same into two parts, namely, one which is favourable to him and the other which is unfavourable/inconvenient to him — merely becasue definition of sale is restricted to payment of prices the argument that the other consideration cannot be considered as part of the agreement held to be not acceptable. — Indira Rai v Pamshumm Kallappa Hande, ILR1988 Kar. 1307.

10. HOUSE PROPERTY WITH 'COMPOUND' According to dictionary meaning, compound is an enclosed space with whatever buildings there are on it. Since it is enclosed there is little point in speaking of a compound wall. In the instant case, the sale deed describes the property in the schedule as house property with compound, etc. Therefore, it is clear that the property sold is with compound which means "compound wall". Compound by itself is used to refer to the wall. Therefore, absence of the word "wall" after the house property with compound in the schedule cannot be made much of. In cities sometimes all the four walls of the compound may not be owned by the owner of the house which is enclosed with a compound. But when the property sold under a sale deed is described as house property with compound and if one takes the dictionary meaning of the word "compound", no further explanation is needed to clarify that the house property and the enclosing compound wall are together sold under the sale deed. It is not open to interpret that the walls of the compound do not belong to the vendor. — Devikarani v Venkatesha Sastry, 1994(5) Kar. L.J. 99A.

11. Sale of immovable property — Execution and registration of sale deed — Plea that consideration is not paid the vendee not put in actual 'possession — Remedy — Non- payment of consideration by itself does not render the sale imperfect or invalid; remedy to vendor is for recovery of the amounts and not for declaration of title and possession — If actual possession not delivered to vendee, open to

vendee to sue for possession — Explained. — Sint. Therojamnia & Another v D.H. Sadashivaiah, 1990(3) Kar. L.J. 504.

12. Future payment of consideration does not arrest passing of title if instrument registered — Title gets conveyed as soon as instrument with stipulation of consideration is registered — Non-delivery of possession does not affect conveyance of title — Delivery of possession not , essential ingredient — Right to possession incidental to right of ownership -Conveyance of title if dependent upon passing of consideration, passing of title deferred till payment of consideration — Explained. — G. Hampamma v K.b.Kalingapa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.

13. The plaintiff had entered into the transaction in question in order to liquidate the loan which he had taken from the defendant-Bank. The document also discloses that the transfer was made for a consideration which could have been best fetched. The plaintiff in the document also admits that Rs. 3,000/-which was over and above the debt of the Bank was received by him in cash. So far as the provision for reconveyance is concerned it was agreed that if the plaintiff repays Rs. 13,000/- along with all the expenses which the respondent-Bank had incurred by way of insurance charges, taxes, repairs, etc., within 5 years, then the respondent-Bank will be obliged to reconvey the property in his favour. The transaction in question was entered into between the parties not in order to establish the relationship of debtor and creditor but was entered only with the sole purpose of liquidating the existing loan. The document is in fact a document of conveyance or sale with a condition to repurchase. — Basappa Shivalingappa Revadigar (dead) by LRs. v Karnataka Bank Ltd., Kundgol, Dhanvad, 1994(5) Kar. L.J. 463.

14. If a sale property of less than Rs. 100 in value is effected by delivery of possession, that sale is as provided by Section 54 of the Transfer of Property Act, a valid sale. It is not rendered invalid by reason of the execution of an unregistered instrument of sale recording it. — Govindappa and Another v Vishivanath alias Eshwarayya, 1961 Mys. L.J. 528 : ILR 1961 Mys. 942.

15. Title to property covered by a decree for specific performance passes only on the execution and registration of the sale deed and not from the date of the decree or the date of the deposit of the purchase money.In the absence of some provision in the sale deed to the contrary, title passes with the execution and registration of the sale deed. A sale deed which is executed by the Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment-

debtor and the sale deed so executed has got all the characteristics of a transfer inter vivos. — Mrs. Christine Pais v K. Ugappa Shetty, 1965(2) Mys. L.J. 692.

16. Municipal Property Register is not title deed. Land Revenue Patta is not. — Hazarat Asmruddin Durga v Hussein Ktian Saheb, 1966(1) Mys. L.J. 772.

17. Where the defendant purported to sell certain sites and convey title therein to the plaintiffs and it was not disclosed in the sale deeds that the Sy. No. in which the sites were situate had vested in the Government under Section 3 of the Inams Abolition Act and that the only right the vendor had in those sites was to apply for being registered as occupant thereof and that he was transferring only such right to the plaintiffs. Held, there was a breach of the duty on the part of the vendor under Section 55(l)(a) of the Transfer of Property Act and the plaintiffs were entitled to avoid the sale and claim refund of the price paid by them. — Hanumappa v Munithimmiah, 1974(1) Kar. L.J. Sh. N. 298.

18. In a suit for damages for breach of the implied warranty under Section 55(2) of the Transfer of Property Act, the non-production of the sale deed is immaterial, where no contract to the contrary is pleaded. Even if the vendee knew the defect in the title of the vendor, still he can avail himself of the statutory warranty. In such a suit, the cause of action arises on the date of dispossession and not on the date of the sale deed. — Basappa v Kodliah, 1958 Mys. L.J. 491: AIR 1959 Mys. 46 : ILR1958 Mys. 237.

19. Contract of sale — Vendee's revocation of — Vendor's defective title as ground for — Such ground is available to vendee to revoke contract even if he had prior knowledge of defective title — Even where contract of sale is completed, vendee is entitled to cancel contract and seek refund of purchase money, as statutory provision deems implied contract for title — Where contract is only at executory stage, vendee cannot be compelled to purchase, on ground that he was aware of defective title at time of entering into contract of sale. The provisions of Section 55(2) of the Transfer of Property Act deem implied contract for title and even in cases where there is a completed contract of sale, the purchaser is entitled to cancel the contract and seek the refund of purchase money. .... It is also open to the parties to waive the implied warrantee of title by a contract to the contrary. However, in a contract where it is only at an executory stage, it would not be proper in law to force upon the purchaser to purchase the property on the ground that he was aware of the defective or imperfect title at the time of agreement of sale. It does not prevent in law for the purchaser to revise his opinion before the contract is concluded however with a qualified liability on the purchaser to compensate any loss or damages which the vendor has sustained in

the course of such transaction for which the purchaser has equally contributed by his folly. — R.L Pinto and Another v F.F. Menzes and Another, 2001(3) Kar. L.J. 571C (DB).

20. Section 55(4)(a) has no application to a case where in respect of the transfer of property the prospective buyer is put in possession of the property. Such a case is governed by the equitable principle on the basis of an implied agreement arising out of taking over possession without paying the consideration amount. Where immediately after agreement the prospective buyer is put in possession, the vendor is entitled to interest on the unpaid purchase money. The circumstance that the vendor could not remove the doubts over his title cannot be such a conduct on his part, which suffices to relive the purchaser from the liability to pay interest wholly or in part. — Malkajappa Bhimappa Bennur v Bhimappa Kashappa Parasannavar, 1965(2) Mys. L.J. 229.

21. Section 55(4)(a) is based upon an established rule of law that it is the part of the right of the owner of the property to receive rent and profits of the property owned and that right continues until the title or ownership is lost. As the agreement of sale does not confer any title or transfer any title in the suit schedule property agreed to be sold, and the title continues to vest with the owner/vendor of the property agreed to be sold, evenafter the agreement of sale, it is governed by Section 55(4}(a) of the T.P. Act. — B.R. Midani v Dr. A.B. Asivathanarayana and Others, 1992(3) Kar. L.J. 207B (DB) : ILR 1992 Kar. 2224 (DB).

22. Mere agreement of sale does not have the effect of creating or vesting title in the plaintiff of the suit property. As per Section 55(4)(a) of the Transfer of Property Act, the seller is entitled to the rent and profits of the property till the ownership thereof passes to the buyer. — G.M. Chinnaswamy v Smt. P.K. Prqfulla, 1992(3) Kar. LJ/186B (DB) : ILR 1992 Kar. 2294 (DB).

CASE LAW ON GIFT OF IMMOVEABLE PROPERTIES

ACCEPTANCE OF GIFT BY DONEE — INFERENCE.

There is nothing in Section 122 of the Transfer of Property Act to show that acceptance of a gift should be express. Where the donee knew about the gift, being present at the time of registration of the gift deed and did not object to it, it can safely be inferred that the donee accepted the gift. — Lingaiah v Siddamma and Others, 1982(1) Kar. L.J. 34.

CONDITIONS IN GIFT DEED

If donor has voluntarily executed the deed and donee has accepted during his lifetime, any condition imposed on donee for full and proper enjoyment of property gifted becomes void while validity of gift deed remains intact — not control passing of title in favour of donee — D. Venkatesha Cowda v State of Kamataka and Others, 1990(1) Kar. L.J. 242.

Recital as to maintenance in gift deed in absence of specific recital reserving rights to revocation on failure to perform condition mentioned in gift deed — Held, cannot have the effect of making the gift a conditional gift enabling donor to revoke the same on failure to perform such condition. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

Recital as to maintenance in a gift deed in the absence of specific recital reserving right to revocation on failure to perform condition mentioned therein — Held, not a conditional gift deed — Only remedy available to the donor is to enforce the condition in a Court of law — Donor cannot unilaterally cancel the gift deed. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

The super adding of a condition to a gift is permissible in law under Section 31 of the Act and acceptance of a gift by the donee is necessary for rendering the gift valid in law, therefore, when a donee accepts a gift which is burdened by a condition that a superadded, it is nothing but a donee agreeing to that condition and therefore, the consequences provided in Section 126 of the Transfer of Property Act will have to follow — Defeasance clause would not always affect the rule of perpetuity — It depends on facts and circumstances of each case. — Govindamma v Secretary, Municipal first Grade College, ILR 1986 Kar. 1175.

GIFT — DELIVERY OF POSSESSION.Under the Transfer of Property Act, it is not necessary that possession of the property gifted must be delivered forthwith. Thus, where under a document the right, title and interest in the properties were vested in the donee, he becomes absolute owner, though delivery of possession is postponed, and hence the document is not a will. — Parvati and Another v Mrutyunjaya Gurupadayya and Another, 1983(1) Kar. L.J. 14.

REGISTERED GIFT DEED — DENIAL OF EXECUTION

Registered gift deed — Denial of execution of, by person by whom it purports to have been executed — Burden of proof of execution is on party relying upon deed and burden has to be discharged by calling at least one of attesting witnesses to prove execution — Where burden has not been discharged, deed cannot be used as evidence of gift. Held: Section 123 of the Transfer of Property Act, requires the specific mode in the matter of execution of gift of immoveable property. That gift of immoveable property can be made only by the execution of the registered deed attested by two witnesses. .... The law prescribes the specific mode that it must be effected by a registered instrument or deed signed by or on behalf of the donor

and attested by at least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the production of at least one of the attesting witness to prove its execution. Compliance with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make gift deed admissible in evidence. .... None of the attesting witnesses of the deed has been examined in this case to prove the execution thereof. The deed dated 29-11-1960 could not be used as evidence and its execution cannot be said to have been proved. — Smt. Flora Margaret v A. Larwence, 2000(6) Kar. LJ. 27B.

MODE OF TRANSFER

Gift — Transfer of property under — Mode of transfer — Gift deed may provide for transfer of existing property to donee at future date and/or on happening of certain events — Intention of donor to be gathered by reading deed as a whole — No word thereof to be ignored as meaningless — Effect to be given to every part of deed — Where gift deed in favour of two minor donees jointly concludes with words "you shall enjoy property and live as you wish after you have attained majority and got married", the words to be interpreted that gift would take effect oniy when donees marry on attaining majority — Property not conveyed to donees as marriage between them did not take place. Held: A reading of Section 123 along with Sections 122 and 5 of the Act, it appears to me that in the matter of gift also, transfer or conveyance of the property may be provided to take place in present or in future. The gift deed may also provide that the transfer may be effective on the happening of certain conditions in future. In other words, person making the gift may provide that the interest in gifted property will stand conveyed or transferred as per deed either in present or in future. In the deed, it has to be looked into to ascertain the intention of the parties, whether the transfer has been effected in present or in future, Expression lastly used in the document, "you shall enjoy the above mentioned property and live, as you wish after you attained majority and got married". These expressions have to be taken as controlled by the expression used earlier that the intention of the author is that the right and title as an absolute owner of the property should pass on to the donees on the fulfilment of those conditions. That as the document appears to have been executed with the object of the marriage and the effect of it is that donees could get absolute ownership under the deed on the fulfilment, of both the conditions, namely, attaining the age of majority by both of them and they getting married and until and unless this had so happened, the property had to remain in possession of the husband of the donor. This action shows that till the happening of the condition, namely, the attaining the age of majority by the two donees and their getting married, the property had to remain in possession of the husband of the donor, so, the property had not been transferred to the donees, the transfer could take effect only on the donees attaining majority and getting married. That as the marriage did not takes place in the present case and the plaintiff did not marry the defendant's daughter, deed did not become effective to transfer the title of the property to the plaintiff and defendant 1 and the title of the property re-examined with the donor. Mere execution of the deed of cancellation at subsequent stage will not lead to the conclusion that the gift deed had been acted upon. The deed cancelling the gift deed might have been executed as a matter of mere precaution and for safety protection. — Hutchegowda v Smt. Jayamma and Another, 1996(2) Kar, L.J. 751.

ATTESTATION OF GIFT DEED

In the present case, the gift deed in question has been registered and the necessary endorsements are made by the Sub-Registrar. P.W. 2 has sworn that he had attested the deed. But he has nowhere stated in his evidence that the executrix namely, Gangavva affixed her signature or mark to the gift deed in his presence or acknowledged to him, that she had affixed her signature or mark to the gift deed. Therefore, his evidence does not satisfy the ingredients of definition 'attested'. Hence, it will have to be held that attestation by P.W. 2 and another person as required by law, has not been proved. Therefore, though Gangavva appears to have admitted execution of the gift deed as is seen from the endorsement of the Sub-Registrar, it will have to be held that the gift deed, though registered, does not satisfy the ingredients of Section 123 main part. When that is so, no title in law can be said to have passed from Gangavva to the plaintiffs, even assuming that Gangavva did have such title to transfer. — Anant Somappa Pattar v Kalappa Devendrappa Yarakad, 1987(2) Kar. L.J. Sh. N. 177: ILR 1985 Kar. 1432.

Gift - proof of attestation. Where the attestor called as witness says he does not know who else attested and there is no other evidence, held, the gift deed was not proved as required by law. — Kempamma v Honnamma, 1979(1) Kar. LJ. Sh. N. 85.CASE LAW ON BENAMI TRANSACTIONS 1. Benami purchase — Burden of proof of — Tests for determining — Burden of proving that purchase is benami and that apparent purchaser is not real owner, rests on party asserting it to be so — Source from which purchase money came, relationship between person who paid purchase money and alleged benamidar, custody of title deed and conduct of parties in dealing with property after purchase, are factors relevant for consideration — Where father paid money for property purchased in name of his daughter and put her in possession of purchased property and pf title deed thereof, purchase is to be held not benami purchase by father, but he intended purchase to be gift to his daughter who is to be held absolute owner. Burden of proof to establish a transaction to be benami is to be discharged by party raising the plea. The party raising such a plea, cannot succeed unless it proves that property under the deed of transfer though has been purchased in the name of a person in whose name the deed stands, but the real purchaser is a different person and that the same had not been purchased for the benefit of such person named in the deed as purchaser in addition to establishing the passing of sale consideration and conduct or dealing with property by the parties namely possession, control, etc., over property. . . . .The surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a gift to 'B' and it would then not be a case of benami notwithstanding that the purchase money did not proceed from defendant . . . .The evidence on record regarding possession, user etc., of suit properties and control and possession of title deeds is that, these were all with Smt. Kenchamma-defendant 1. This evidence establishes that Smt. Kenchamma has been the real owner and not benamidar. — G. Chikkapapanna alias G.C. Papanna v Smt. Kenchamma

(Deceased) by LRs and Others, 1998(5) Kar. L.J. 360A: ILR 1998 Kar. 3450. (NOW CERTAIN BENAMI TRANSACTIONS AND RIGHTS ARISING OUT OF IT ARE BANNED)

2. Benami purchase — Onus and proof of — Matters to be considered in determining benami nature of transaction — Where person claiming to be real owner, has in his suit for declaration and injunction against person alleged to be ostensible owner, has proved that it was he who paid purchase money, has produced title deed from his custody, and has explained motive behind such transaction, can be said to have discharged his initial burden of proof, and he is to be held entitled to relief when his evidence has not been rebutted by opposite party. A person expressly shown as the purchaser or transferee in the deed is a document prepared after considerable deliberations, starts with initial presumption in his favour that the apparent state of affairs is real state of affairs. The burden (if proving that the sale is a benami transaction and apparent purchaser is not the real owner, always rests on the person who asserts it to be a benami transaction and thus, burden, has to be discharged strictly by adducing legal evidence of definite character. For determining whether a particular safe is a benami transaction or not, there is no absolute formula or a test to be uniformly laid for all situations, but there are certain guiding factors as mentioned below which may help the Court to arrive at the decision on this part and decide further the real intention and to determine the nature of transaction. — The source from which the purchase money came; The nature and possession of the property, after its purchase namely in whose possession the property purchased has been and in what capacity; The intention of the motive behind the transaction being given the benami character; The position and relationship of the parties and in particular between the claimant and the benamidar; The custody of the title deeds after the sale and the conduct of the parties, even subsequent to the transaction, in dealing with the property, (para 12) D. Victor v L. Sundaram (Deceased) by LRs, 1998(5) Kar. L.J. 501B. ( NOW CERTAIN BENAMI TRANSACTIONS AND RIGHTS ARISING OUT OF IT ARE BANNED)CASE LAW ON DOCTRINE OF PART PERFORMANCE 1. To invoke the doctrine a part from proving agreement of sale, transferee must prove that he, in part performance of the contract, taken possession of the property or any part thereof, or in case transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract; Otherwise the doctrine of equity of part performance cannot be invoked. In the instant case either of the two things is not established. Defendant 4 in whose favour the agreement of sale as per Ex. D. 1, dated 15-12-1968, is executed, is no other than the wife of the defendant 3 (sub-tenant). In the earlier proceeding under the Rent Act for eviction, it was the case of the owner that defendant 1 was the tenant of the suit premises and he had sublet the suit premises to defendant 3- Thus, defendant 4 being the wife of defendant 3 was residing in the suit premises along with defendant 3. No evidence is adduced to prove that defendant 4 was continued in possession pursuant to Ex. D. 1 and she had done some act in furtherance of the agreement-Ex. D. 1. The agreement-Ex. D. 1 is silent. It does not state that pursuant to the agreement defendant 4 was put in possession of the suit premises. In the absence of specific evidence to satisfy the doctrine of equity of part performance, defendants 3 and 4 cannot

successfully clam protection or defend their possession of the suit premises under Section 53-A of the Transfer of Property Act. It "only follows that defendant 3, as claimed by Dr. Ali Hussain in the H.R.C. No. 13 of 1973 was in possession as sub-tenant under defendant 1 and defendant 4 being his wife was residing with him. They (defendants 3 and 4) had not taken possession of the suit premises in part performance of the agreement-Ex. D. 1. Further, they have also not proved that they have done any act in furtherance of the contract. Thus, defendants 3 and 4 are not entitled to the benefit of Section 53-A of the Transfer of Property Act. — Kareeni Baig and Others and Dr. Mohamnwd Kliizar Hussain and Others, 1988(1) Kar. L.J. 227 (DB): ILR 1988 Kar. 631.

2. Part performance — Defence of — Condition necessary for making out such defence to action for ejectment by owner — Party taking such defence must prove that he has taken possession in part performance of contract to sell and that he has performed or is willing to perform his part of contract — Where document relied upon by party does not satisfy requirement of enforceable contract to sell, and party is guilty of laches and has failed to show any act done by him in furtherance of contract, party is not entitled to claim equities in law. The recital in the document does not indicate that the possession of the property was handed over under the terms of the document. Recitals in the document only discloses that the documents and keys pertaining to the property has been handed over for scrutiny. The totality of the reading of the receipt also does not spell out any other terms and conditions of the agreement of sale excepting the statement of fact about the amount of sale consideration and payment of Rs. 9,900/- as part payment towards the sale consideration. The receipt does not disclose that possession of the property was delivered by virtue of terms of the document. The documents also does not show as to when the possession came to be delivered. ...... Another requirement for invoking equity under Section 53-A of the Act the transferee has to show that he has done some act in furtherance of contract and that he has performed and willing to perform his part of contract. In this regard the conduct of the defendant has been hopeless. Nothing is done as to show what are the acts done in furtherance of the contract. He remained on the property for over 14 years.-The date of contract of agreement of sale is also not convincingly placed on contract. The appellant has remained totally indifferent and there are laches on his part in not making any efforts and has not shown that he has done any substantial acts which may give advantage to claim any equity in law like improving the property in any manner. . . . . . The appellant is not entitled to invoke provisions of Section 53-A of the Transfer of Property Act to claim any equities in law. — M.S. Narayana Rao v S.K. Pundareeka, 2001(3) Kar. LJ. 339B (DB).

3. Though based on equity, doctrine forms part of substantive law granting transferee right to retain possession on ground of part performance — Object of provision, inter alia, is to lift bar of limitation in protecting possession on basis of agreement to transfer — Provision, in effect, relaxes rigour of Act and also that of Registration Act — It is exception to provision which requires contract to be registered — Where under written contract to sell, transferee has, in part performance of contract, taken possession and continues to be in possession and

has also performed his part of contract by paying full amount of consideration, transferor is estopped from seeking recovery of possession on ground that transfer was not effected under registered deed and that transferee had failed to bring suit for specific performance of contract within period of limitation prescribed therefor in Limitation Act. Section 53-A of the Act creates a statutory right in favour of transferee though the inspiration for incorporating the same might have been derived from the English equitable doctrine of part performance. But, it is now more than settled that in India the right of a transferee to defend his possession over a immovable property acquired pursuant to a contract and subject to fulfilment of statutory conditions contained in the said section is statutory in nature and cannot be whistled down on the equitable concept of latches or implied limitation. . . . Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53-A of the Act by way of defence in a suit brought against him by his transferor for recovery of possession. . . . The law of limitation does not apply to a defence raised under Section 53-A of the Act since the Section does not provide for any limitation on expiry whereof the defence contemplated in the Section will be lost or will extinguish. . . . Therefore, the right of the transferee to defend his possession envisaged under the above provision is statutory in nature and it has not been subjected to any limitation either express or implied. In that view of the matter, the Division Bench decisions of this Court cannot be said to have laid down a good law and are accordingly overruled on the legal issue involved herein. . . , The Trial Court has found that the defendant has fulfilled all the conditions which are statutorily required to be complied with to defend his possession. Without disturbing the said findings of the Trial Court, the lower appellate Court has decreed the suit on the plea of limitation which, is not tenable. Narasimhasetty (deceased) by LRs v Padmasetty, 1998 Kar. L.J. 73C FB : ILR 1998 Kar. 3230.

4. S. 53-A — Part performance — Unregistered sale in favour of usufructuary mortgagee — Consideration for sale partly discharge of mortgage and partly additional amount paid by mortgagee — Payment of additional amount an act in furtherance of contract of sale. A land which had been mortgaged with possession in favour of the defendant was subsequently sold to the plaintiff who sold it to the defendant under two deeds by which the defendant's mortgage debt was discharged and the plaintiff received some amount in order to make up the full purchase money. These deeds were not registered. The plaintiff sued for redemption of the mortgages in favour of the defendant. Held, that payment of money by the defendant (the mortgagee purchaser) under the unregistered deeds of sale as part of the consideration was an act in pursuance of the contract of sale within the meaning of Section 53-A of the Transfer of Property Act and the defendant was entitled to the benefit of the section. The mortgage debt having been already discharged under the terms of the sale in favour of the defendant, there was no further right left in the mortgagor to redeem. — chikkannaswamy v Haji Hayat Khan, 1957 Mys. L.J. 31.

5. Part performance of contract — Suit for declaration of title and possession of property — Whether defendant, who claims that he was put in possession of the property pursuant to an agreement to sell, can seek protection under Section 53-A after his remedy for specific performance had become time barred. Held.—The plaint averments and reliefs sought in the suit did clearly and unequivocally amount to denial of the agreement dated 16-12-1972. Therefore, the defendant was required to exercise his right under the agreement by filing a suit for specific performance within three years from the date he was served with the suit summons. Section 53-A incorporates doctrine of equity. Therefore, in order to invoke the protection under the doctrine of part-performance, the person invoking, must possess the right to enforce the agreement of sale. If the right under the agreement is lost by law of limitation, even if it is lost during the pendency of the suit, it is open to the party to take advantage of the same and the court to take note of it. The delay defeats equity. When the person in possession of the suit property loses his right to remain in possession, he cannot resist the suit of the true owner for possession of the same. — K. Gururao v M. Subba Rao, ILR 1992 Kar. 429 (DB).

6. Where the case of the appellant is that ever since his purchase he was in possession of the property, his possession has to be protected against interference by someone who is not proved to have a better title, and he is entitled to an injunction for that purpose. M. Kallappa Setty v M.V. Lakshminarayana Rao, AIR 1972 SC 2299

7. Person in possession under a void lease does not acquire any interest in the property, but only a right to defend possession. — M/s. Technicians Studio (Private) Limited v Smt. Lila Ghosh, AIR 1977 SC 2425.

8. Plaintiff put in possession of the property pursuant-to the agreement of sale — Entitled to protect his possession — Claims mesne profits — Whether the Trial Court was right in refusing the claim. Section 53-A of the Transfer of Property Act will provide a valid defence to a person to protect his possession who has been put in possession of an immovable property in part performance of the contract and the same cannot be pressed into service to claim mesne profits. — T. Dase Goivda v D. Srinivasaiali and Others, 1993(4) Kar. LJ. 108C (DB)

9. Where in a suit for recovery of arrears rent, the defendant pleaded that he was not a tenant, that he requested plaintiff to advance Rs. 6,500 and get a sale deed of the property in his name, and plaintiff executed an agreement to reconvey the property to defendant within 2 years, and therefore he was in possession of the house as owner under the agreement to reconvey. Held, it did not amount to a plea of part performance within Section 53-A of the Transfer of Property Act. —M. Mariappa vA.K. Satyanarayana Setty, 1983(2) Kar. LJ. 185 : AIR 1984 Kant. 50.

10. For Section 53-A to apply, the terms necessary to constitute the transfer should be capable of ascertainment with reasonable certainty from the agreement. The transferee should have in part performance of the contract, taken possession of the property, or if he is already in possession and continues in possession in part performance of the contract, he should have done some act in furtherance of the contract. Where, the agreement of sale in favour of the mortgagee in possession made no reference to the antecedent mortgage, but recited that the vendor had agreed to sell for a sum of Rs. 1,550/- and to receive the consideration before the Sub-Registrar, it is not possible to say whether out of Rs. 1,550 the mortgage debt had to be deducted or it was in addition to the mortgage debt and hence the terms of the sale could not be reasonably ascertained. Further, the continuance of the mortgagee in possession must have unequivocal reference to the contract for sale. Mere continuance of possession is really of no consequence and what is necessary is that such continuance must be referable to the contract and the nexus between the contract and continuance must be unequivocal. — famil Ahmed Saheb v Mahabub Bi, 1964 Mys. L.J. Supp. 619.

11. CONTRACT OF SALE — TRANSFEREE OBTAINING POSSESSION OF PROPERTY PURSUANT TO Transferee's suit for specific performance of contract decreed only for refund of earnest money and not for specific performance — When earnest money decreed to be refunded has been deposited by judgment- debtor, transferee, held, cannot defend his possession. Held: Here is a case, where the plaintiff has already filed a suit for specific performance and no decree was admittedly granted to him for specific performance. He was granted only a decree for refund of the earnest money. Thus, the appellant who was the defendant in a suit has already exhausted his remedy under the alleged agreement and failed in his attempt to get the agreement enforced. Therefore, in such circumstances, he cannot defend his possession under Section 53-A and by taking recourse to the same agreement on which he had already filed a suit had failed to get a decree for specific performance. . . By virtue of the decree passed in the said suit, the plaintiff in the present suit was entitled to get back possession since no decree for specific performance was granted to the appellant who filed the suit. — Abdul Rahimansaheb v Puttaiwva (Deceased) by L.R., 2002(5) Kar. L.J. 385.

12. Where during the subsistence of a possessory mortgage; there was an agreement of sale under which the mortgagee was constituted owner and he was directed to get the property transferred to his name in the municipal, registers and on the application of the vendor, the name of the mortgagee purchaser: was mutated, held, all the conditions necessary for the application of the doctrine of' part performance existed and the mortgagee-purchaser could resist the suit for redemption. — Babu Murlidhar v Soudagar Mohammad Abdul, 1970(1) Mys. L.J. 34.

13. Provisions applies as a bar against the transferor — It debars the transferor from enforcing against the transferee any right in respect of the property of which

the transferee has continued in possession. — Sharma v Puttegowda, ILR 1986 Kar. 171.

14. Contract to sell — Transferee given possession of property in part-performance of — Transferor's suit for recovery of possession — It is open to transferee to take plea in defence, of part performance of contract to protect his possession, though he cannot enforce specific performance as action for same is barred by limitation — Law of limitation, held, does not extinguish defence, but only bars remedy — Transferee held, is entitled to maintain his possession. It cannot be said that the defendants cannot maintain then possession against the plaintiff in such a suit even if right to bring suit for specific performance is barred by time. — Smt. H.K. Putta.tliaya.mma v smt. K. Bharathi and Another, 2003(3) Kar. L.J. 158.

15. Tenant agreeing to purchase, Plaintiff agreed to sell the house to defendant who was a tenant of the same and defendant paid an advance under a receipt. The agreement to sell was not in writing. Defendant paid the tax of the house and at a subsequent stage called upon plaintiff that his brother should also join in executing the sale deed. Held, the agreement was an oral one, the receipt assuming it amounted to an agreement to sell, did not mention that the transferee was continued in possession in part performance of the contract; as even a tenant in occupation is required to pay tax, it cannot be said that by paying tax defendant had done some act in furtherance of the contract; by requiring that plaintiff's brother should join in the execution, defendant had varied the terms of the contract and as such had committed breach of the contract and defendant cannot be said to be ready and willing to perform his part of the contract. Thus none of the conditions contemplated in Section 53-A of the Transfer of Property Act were satisfied. The relationship of landlord and tenant continued and defendant was liable to pay rent. Ayyappa Nayar v Bheemappa, 1980(1) Kar. L.J. Sh. N. 23.

16. An intending transferee under a contract for sale of immoveable property, who is put in possession of the property in part performance of the contract, can as a plaintiff bring an action for the possessory remedy of an injunction in protection of his possession against the transferor. As a condition attached to the grant of injunction, to afford protection to the defendant, plaintiff was directed to deposit in Court every year a sum towards profits and income of the land. — Mahadevamma v B.S. Lingaraju and Others, 1981(2) Kar. L.J. 388 (DB).

17. If plaintiffs acquire substantial rights under an agreement of sale, they are entitled to be protected against the transferor who is trying to deprive the plaintiffs of their possession contrary to Section 53-A of the Transfer of Property Act. Plaintiffs must be held to be defending their rights under Section 53-A and the suit for injunction cannot be construed as one to enforce rights conferred by Section 53-A. The commencement of possession being under the agreement of

sale, _continuance of possession by the plaintiffs cannot be deemed to be adverse, unless there has been denial of defendant's title and assertion of hostile title. — Yenkanna v Yellanna, 1975(1) Kar. L.J. Sh. N. 35.

18. The doctrine of part performance incorporated in the Transfer of Property Act by section 53A is a doctrine of equity is a fairly well-settled proposition. If that be so, and if the transferee sleeps over his right to obtain relief of specific performance there would be every justification for application of doctrine delay defeats equity in such a case. Further, for fulfilment of the essential ingredient of this section viz., that the transferee is willing to perform his part of the contract, cannot be satisfied if the right of transferee to get specific performance of the contract is extinguished by lapse of time prescribed under the Law of Limitation. A transferee who has obtained possession of immovable property in part performance of the contract cannot resist the suit for possession filed by the vendor if his right to obtain specific performance is barred by limitation and we reiterate the said principle. — M. Azmathulla Khan (dead) by L.Rs, v Thankamma Mathews, 1994(4) Kar. L.J. 69A (DB)

19. Pursuant to an agreement to sell, the tenant was put in possession of the property by way of part performance of the contract. The tenant having failed to pay the balance of consideration the landlord sued for possession. The Appellate Court directed the defendant to put the plaintiff in possession of the property provided the plaintiff paid back the amount received from the tenant. It was contended in second appeal for the first time that the decree for possession was illegal because the defendant was a tenant even before the agreement to sell and if the agreement fell the defendant would remain as a tenant.Held, that the question based on the equitable doctrine of merger sought to be raised in the present case was a mixed question of fact and law and therefore ought not be allowed to be urged for the first time in second appeal. In the case of a lessee who is also entitled to possession under Section 53-A of the Act, the earlier lease stands extinguished in such circumstances Champalal fthaktauwma! v Smt. Sumitramma, 1972(2) Mys. L.J. 242 : AIR 1973 Mys. 110

20. The equitable doctrine of part performance cannot override the provisions of a statute, by which an agreement affecting land not duly executed in manner therein required is rendered of no force in law. — Kempe Hussain Saheb v/s Murtuza Saheb, 1963(2) Mys. L.J. 146.

21. Where in a suit for declaration of his title, the defendant who was originally a tenant pleaded that he had entered into an agreement to purchase the premises and that he was not a tenant, Held, (1) .The concurrent finding of the Courts below that the documents relied upon by defendant were not proved to be genuine and properly executed was a finding of fact which could not be interfered with in second appeal; (2) Where there is nothing to indicate in the agreement of sale that the defendant was allowed to continue in possession pursuant to the agreement of

sale. Section 53-A of the Transfer of Property Act could not be applied; and (3) The lease did not merge with the right, the defendant had acquired under a mere agreement of sale in his favour and defendant continued to be a tenant under the plaintiff. 1979(2) Kar. L.J. 268, rel. on. — Rudrappa by LRs v Danappa Malasiddappa, 1982(1) Kar. L.J. 284.CASE LAW ON TRANSFERS TO DE-FRAUD CREDITORS 1. In a suit under Section 53 of the Transfer of Property Act, to set aside a release deed executed by the father in a joint family, the burden of establishing that the release deed was one made in fraud of creditors or with the intention of delaying or defeating them is upon the plaintiff. — Rajendra Prasad v Hundraj, 1968(2) Mys. L.J. 269.

2. It is not necessary that a man should be actually indebted at the time he enters into voluntary settlement to make it fraudulent, for if a man does it with a view to being indebted at a future time, it is equally fraudulent and ought to be set aside. So where a transfer was executed at the time when the executant was well-aware of the probability of a decree for a substantial sum being passed against him, this section would apply although the transferor had no present debts at the time, the transfer took place. — Thimmegawda v Ningamma, 1963 Mys. L.J. Supp. 448.

3. Transfer voidable when effect to evade payment arising out of pious obligations of the sons to father. The onus of proving want of good faith in the transferee is on the creditor who impugns the transactions. But, where fraud on the part of the transferor is establish i.e., by the terms of para 1 of Section 53(1), the burden of proving that the transferee fell within the exception is upon him and in order to succeed, the transferee must establish that he was not a party to the design of the transferor and that he did not share the intention with which the transfer has been effected, but that he took the sale honestly believing that the transfer was in the ordinary and normal course of business. (AIR 1963 SC 1150). Recitals in mortgages or deeds of sale with regard to the existence of necessity for an alienation have never been treated as evidence by themselves of the fact. The lack of evidence in regard to application of a substantial portion of the consideration received under Ex. D. 1 undoubtedly leads to an inference that Channaiah had kept it for his own use without discharging the other debts. That may lead to an inference that Channaiah wanted to convert the house property into cash so as to keep it away from the reach of his creditors. Such a transaction has always been held to be voidable in terms of Section 53(1) of the Transfer of Property Act although the transfer might be for adequate consideration. Although the transfer might be for adequate consideration, but such presumption cannot be drawn if the transferor was still left with other valuable properties by which he could think of conveniently discharging his remaining debts. It is not sufficient to point that Channaiah even after the sale of 'A' Schedule property under Ex. D. 1 was left with other properties. There must be material on record to show that the properties still possessed by Channaiah are of considerable value and of easy availability to other creditors to satisfy their demands. Then and then only, the transfer effected by Channaiah could escape the clutches of Section 53(1) of the Transfer of Property Act. — Basavegowda v S. Narayanaswamy and Others, ILR 1985 Kar. 3048 : AIR 1986 Kant. 225

4. Fraudulent transfer — Plea of — Attaching creditor can raise plea in proceedings initiated to attack attachment and he cannot be directed to file separate suit for setting aside conveyance made by judgment-debtor — Plea must be distinct and averment in written statement must be specific to declare transfer as void — Where defence based on Section 53 of Act is not set up, no evidence can be led to prove that transfer effected by judgment-debtor is to defeat attachment. Held: Section 53(1) of the Transfer of Property Act, 1882, can be applied even in proceedings where the attachment is sought to be attacked and it is not necessary to file a separate suit to set aside the document, But this dictum can be made applicable only when there is sufficient pleadings. There is absolutely no averment seeking to declare this document as sham and nominal or that the transaction was intended to defeat or delay the realisation of the claim or any other averment within the meaning of Section 53(1) of Transfer of Property Act. . . . .Case must stand or fall by pleadings. Only on the basis of the pleadings, evidence can be let in. Even if evidence is let in without pleading that cannot be relied upon. There is no pleading to bring Section 53(1) within the purview of this case. In the absence of any pleading it is not open to the Appellate Court to come to a different conclusion. . . .In this view of the matter the Appellate Court's finding is error apparent on the face of the record, the second appeal is allowed. The attachment is raised. Liberty is given to the Bank to file a suit under Section 53(1) of the Transfer of Property Act. — Lalitha Kunder v Syndicate Bank, Surathkal Branch, Dakshina Kannada District and Others, 1999(1) Kar. L.J. 694.

5. SHAM AND NOMINAL SALE : There is a distinction between a sham and nominal sale which is not intended to pass title and a sale which is real but which is voidable at the instance of creditors because the transfer is intended in the language of Section 53(1) of the Transfer of Property Act to defeat or delay creditors. A case of fraudulent preference could be impugned only under the law relating to insolvency and not as a fraud on creditors for which Section 53 of the Transfer of Property Act makes provision. The terms of Section 53(1) are satisfied even if the transfer does not 'defeat' but only 'delays' creditors. The fact therefore that the entirely of the debtor's property was not sold cannot by itself negative the applicability of Section 53(1) unless there is cogent proof that there is other property left, sufficient in value and of easy availability to render the alienation in question immaterial for the creditors. Where fraud on the part of the transferor is established i.e., by the terms of paragraph (1) of Section 53(1) being satisfied, the burden of proving that the transferee fell within the exception is upon him and in order to succeed he must establish that he was not a party to the design of the transferor and that he did not share the intention with which the transfer had been effected but that he took the sale honestly believing that the transfer was in the ordinary and normal course of business. An attaching creditor who has succeeded in the summary proceedings under Order 21, Rules 58 to 61 of the CPC can in a suit to set aside the summary order under Order 21, Rule 63 raise by way of defence the plea that the sale in favour of the plaintiff — the transferee-claimant — is vitiated by fraud under Section 53(1) of the Transfer of Property Act. — C. Abdul Shitkoor Saheb v Arji Papa Rao (dead) by his heirs and LRs, AIR 1963 SC 1150CASE LAW ON SALE OF PROPERTY WHEN THERE IS PENDING LITIGATIONS 1. ALIENATION — DURING PENDENCY OF SUIT FOR PARTITION

Whether decree binding on alienee — Rights of purchaser in final decree proceedings. As there was already a suit for partition filed by the plaintiffs including the suit schedule premises and during the pendency of that suit the alienation in favour of Jayamrna took place and to that suit for partition, Jayamma and Kambaiah both were the parties, the necessity of directing the purchaser to file a suit for general partition does not arise because there cannot be two suits for general partition between the same parties in respect of the very same property. Whatever the decree that is passed in O.S. No. 18 of 1965, Jayamma, Kambaiah and also the present appellant are bound by it. Section 52 of the Transfer of Property Act specifically provides that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Therefore, the validity of such alienation would depend upon the decree that may be passed in the suit during the pendency of which the property concerned in that suit is alienated. In the final decree proceedings, the defendants in the present suit are entitled to be notified and they are entitled to put forth their claim that they being the alienees of some of the coparceners, in equity the suit schedule premises be put to the share of the alienating coparceners. If the defendants put forth such a plea on the notice being served on them the court seized of the final decree proceeding shall also afford an opportunity to the plaintiffs to put forth their say in the matter and decide the issue as to whether the defendants herein, in equity are entitled to have the suit schedule premises allotted to the share of the alienating coparceners. In the event the court allots the suit schedule premises to the alienating coparceners the plaintiffs will not be entitled to the possession of the suit schedule premises. — Smt. Mallamma V/S B.S. Venkataram (Since deceased by L.Rs.) and Others, 1991(4) Kar. LJ. 526B (DB): ILR 1991 Kar. 2761 (DB).

2. AMENDMENT OF PLAINT PROPERTY — LIS PENDENS — APPLICABILITY.

If by a subsequent amendment certain property is included in a plaint and before that amendment had been made the newly included property had already been purchased by a bona fide purchaser for value without notice, the doctrine of lis pendens will have no application to such a case. — B.R. Rangaswamy and Others v Upparige Gowda, 1962 Mys. LJ. 384: ILR 1962 Mys. 312.

3. LIS PENDENS

Where there were two agreements of sale executed by the owner of a property and he executed a sale pursuant to the earlier agreement during the pendency of a suit for specific performance of the second agreement, the sale in favour of the earlier transferee executed during the pendency of the suit for specific performance is affected by the doctrine of lis pendens. A suit for specific performance is a suit in which a right to immovable property is directly and specifically in question. When a decree for specific performance is passed transferring title to the plaintiff, that title does not relate back to the date of the agreement on which the suit is based. — Khajabi (deceased) by L.Rs v Mohammad Hussain, 1964(1) Mys. LJ. 236. Appellant purchased suit property during pendency of suit against first

defendant — Held, purchaser bound by decree against first defendant — Case-law discussed. — M/s. Chitalia Brothers v The South Indian Bank, 1987(2) Kar. LJ. Sh. N. 225 (B): ILR 1987 Kar. 1242.

4. TRANSFER PENDENTE SUITKarnataka Land Reforms Act, 1961, — Transfer pendente Suit — Invalidity of — Applicability of provision to lease of agricultural land made during pendency of suit for declaration and possession — Where suit is decreed granting relief claimed therein, decree is enforceable, not only against person against whom decree has been passed and whose status has been declared as that of trespasser, but also against person claiming to be tenant under trespasser — Overriding effect provided to Karnataka Land Reforms Act is only over provisions of Sections 105 to 117 falling under Chapter V of Transfer of Property Act, and does not affect operation of Section 52 of Transfer of Property Act. Held: In this case, there is no conflict between any provision of the Land Reforms Act and Section 52 of the Transfer of Property Act. Even otherwise, all that sub-section (2) of Section 3 deals with the overriding effect..of the provisions of the Land Reforms Act so far as they relate to Chapter V of the Transfer of Property Act only. It needs hardly be said that Section 52 of the Transfer of Property Act does not come within Chapter V of the Transfer of Property Act. . .. The petitioner's possession of the property during the pendency of the suit for possession instituted by the respondent cannot avail to support a claim of deemed tenancy as the claim is hit by Section 52 of the Transfer of Property Act. If Kallappa had no semblance of title to the property he could hardly confer a better title to the petitioner in this case. — Revanappa v Muniyappa (Deceased) by L.R. and Others, ILR 1998 Kar. 3021.

5. LIS PENDENSKarnataka Land Reforms Act, 1961, Section 138 — Lis pendens — Principle of — Applicable to agricultural leases also — Principle is not abrogated by non obstante clause of Section 138 of Karnataka Land Reforms Act — Suit for specific performance of agreement to sell agricultural land constitutes lis pendens and transferee pendente lite is bound by order passed against his transferor — Tenancy created by transferee pendente lite does not bind decree-holder who is entitled to possession in execution. Such of the provisions of the Transfer of Property Act which are not inconsistent with the provisions of the Land Reforms Act are not barred from their applicability to the matters and proceedings covered under the Land Reforms Act. In that view of the legal position, Section 52 of the Transfer of Property Act very much operates against alienation of agricultural land which is the subject of tenancy claim by any person before the Land Tribunal. .... A plain reading of Section 52 of the Transfer of Property Act makes it clear that any party to a pending suit or proceeding which is not collusive is prohibited from transferring any right to an immoveable property which is directly and specifically in question and is the subject of such suit or proceeding so as to affect the rights of any other party thereof which may be acquired by him under any decree or order ultimately passed or made therein. Explanation to Section 52 makes it further clear that pendency of a suit or proceeding shall deem to commence from the date of presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction and to continue until the suit or proceeding had been disposed of by a final decree or order and till complete satisfaction or discharge of such decree or order. Thus Section 52 creates a clear

bar on transfer of any immoveable property which is the subject of a suit proceeding by any party thereto so as to affect the right of the other party which he may ultimately acquire under a decree. — Smt. Siddarajamma v The Land Tribunal, Tarikere and Others, 1999(1) Kar. L.J. 682A, Lease by manager pending final decree partition proceedings is affected by lis pendens. — Manjunatha Gopalakrishna v Venkataramanakrishna, 1973(2) Mys. L.J. Sh. N. 304.

6. LIS PENDENS1st defendant obtained a decree on a mortgage in 1923 against 2nd defendant and purchased the property in 1929. In a suit between plaintiff and 2nd defendant in 1920 questions relating to the suit properties were in question but by consent those claims were dismissed and plaintiff ultimately obtained a money decree and in execution purchased the suit properties, in January 1930. Held, the mortgage in favour of 1st defendant and proceedings subsequent were not affected by lis pendens. No right at all in respect of the property was declared in favour of plaintiff. Hence, plaintiff could not plead lis pendens in respect of a mortgage executed before plaintiff made his purchase in January 1930. — Dhanvar Finance Corporation v Dattobarao, ILR1973 Mys. 735.

7. LIS PENDENS

Lis pendens —The doctrine of lis pendens is basically a provision to deter or prohibit any mischievous private transfers in the course of legal proceedings and it would also come in the way of any other*transfers but that doctrine has no application on the facts of the present case which concern a Court execution. — Has no application to execution sale of immovable property, which is also subject-matter of contract for sale between judgment-debtor and intending purchaser — Party entitled to purchase under contract for sale has no locus standi to apply for cancellation of execution sale claiming benefit under doctrine of lis pendens, as no right in property accrues to him under such B.M. Manjunatha Gupta v M.G. Shivanagouda and Others, 1997(1) Kar. L.J. 415C.

8. LIS PENDENS

Suit not collusive at inception, but parties thereto subsequently coming to compromise for purpose of defeating right of bona fide transferee pendente lite — Decree passed in terms of compromise — Doctrine, held, will not apply. Section 52 of the Act will not wipe out the effect of a sale validly executed by the person who has the authority to sell pendente Site but it is only to subordinate the rights based on the decree in the suit. As between the seller and the purchaser, the transaction is perfectly valid and operates to vest a title in the purchaser. . . . Thus one of the important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character. .... The doctrine of lis pendens being essentially a doctrine of equity, and fraud and collusion, being antithesis of equity, cannot be encouraged by Courts nor any decrees obtained by fraud or collusion can defeat the rights of the alienees of immovable property. .... Certainly the doctrine has no applications, in all cases where the very suit is instituted by collusion between the parties so also it does not apply to compromise decrees obtained by collusion or by fraud. . . . Appellate Judge has in detail considered the evidence and has found as a matter of fact, collusion between the plaintiff and defendants to the appeal R.A. Nos. 16 and 17 of 1979 in entering into the

compromise and obtaining a decree thereunder. The reasoning of the Appellate Court on this finding cannot be faulted. .... The Appellate Court was right in holding that the alienations made by defendant 6 in favour of defendants 1, 4 arid 5 are not hit by the doctrine of lis pendens. — Ramanagouda Siddanagouda Biradar and Others v Basavantraya Madivalappa Mulianumi and Others, 2001(6) Kar. L.J. 545.

9. MORTGAGE AND ATTACHMENT PRIOR TO PARTITION SUITWhere a mortgage of a family property was created before the institution of a partition suit, a sale in execution in enforcement of the mortgage pending partition suit, is not affected by the doctrine of lis pendens. A mortgagee becomes a transferee of the interest in the imrnoveable property on the date of mortgage and acquires on that date the right to sell the mortgaged property for the recovery of the debt. Neither the institution of the suit nor the sale in execution of the mortgage decree, can fall within Section 52 of the Transfer of Property Act, since such a sale.does not involve a transfer of property. In bringing the suit property to sale, the mortgagee does no more than to enforce a right which had come into being long before the other suit was commenced. Similarly, where family properties were attached by creditors long before a partition suit was commenced, the partition suit which was subsequently instituted cannot to any extent affect the rights of the creditors in the earlier suits to enforce their rights which had accrued to them very much before the partition suit was commenced. — Kamalamma v K. Srinivasa Rao, 1966(1) Mys. L.J. 451.

10. LIS PENDENSA Final mortgage decree was passed on 9-11-1937 and the mortgagee decree-holders purchased the properties in execution sale. While applying for possession it was discovered that while the properties had been described properly with reference to the boundaries, the survey numbers were wrongly given. Therefore, the decree-holders applied for amendment of the plaint, the schedule to the decree and the sale certificate, and they were amended on 25-7-1954. Meanwhile appellant got the properties attached in execution of a money decree against the mortgagor and purchased them in execution on 22-11-1939. Held, the purchase of the properties in execution of the money decree by appellant subsequently to the passing of the final decree in the mortgage suit was affected by the doctrine of lis pendens. The attachment by appellant did not create any right over the properties attached and hence there was no need for the mortgagees to implead appellant as a party either to the proceedings in the mortgage suit, or the subsequent sale or in the proceedings relating to the amendment of the schedule. — Katta Nagappa Setty v H.L. Lingaraj Urs, 1964(2) Mys. LJ.l.

11. LIS PENDENSOne K mortgaged with possession the suit properties on 12-12-1929 in favour of W. In execution of a money decree against K, W purchased the equity of redemption and the rights of K came to be vested in defendants 1 and 2. The representatives of K filed C.S. No. 200 of 1947 under Section 16 of the Jamkhandhi Agriculturists' Relief Act, 1939 against W and his assignee for accounts in respect of the 1929 mortgage. The suit O.S. No. 200 of 1947 was dismissed by the Trial Court; but on appeal in C.A. No. 267 of 1959, the case was

remanded for fresh disposal. After remand, the Trial Court drew up a preliminary decree for redemption holding that the mortgage stood discharged and the final decree was passed on 11-4-1962 and the plaintiffs were put in possession of the properties on 15-4-1962. Defendants 1 and 2 did not contest the appeal and also the suit after remand.Defendants 1 and 2 executed a mortgage of the properties on 10-8-1953 and the mortgagee obtained a final decree for sale therein. Plaintiffs filed the present suit for declaration that the decree obtained on the mortgage executed by defendants 1 and 2 in 1953 was not binding on them.Held,(1) Having regard to the allegations in the plaint and the written statement in C.S. No. 200 of 1947, title to the equity of redemption was directly and specifically in question even on the date when the suit was instituted for accounts and therefore the mortgage deed of 1953 was affected by lis pendens. The proceeding commenced under Section 16(1) of the Jamkhandi Agriculturists' Relief Act ending with a decree for redemption should be considered as a single proceeding and the ultimate relief granted by the Court under sub-section (3) should be held to relate back to the date on which the litigation was commenced, and all transactions entered into in respect of the immovable property by persons who are parties to the said suit after the commencement of the litigation must be held to be subject to the final result of the litigation. The question for decision in C.S. No. 200 of 1947 was whether the mortgage debt had been discharged or not, and whether mortgagor had the right of redemption or not. Both the questions related to the mortgagor's right to property and arose directly for decision in that suit. They cannot be considered as collateral matters.(2) The Court, while applying Section 52 of the Transfer of Property Act, cannot be calied upon to decide whether the decision in the former case was correct or incorrect. Hence, the question whether the Court could have granted' the declaration that the sale in execution of the money decree was a nullity could not be gone into.(3) Apart from the fact that defendants 1 and 2 remained absent when the appeal in C.A. No. 267 of 1959 was heard, there being no other evidence of collusion, collusion was not established.(4) The judgments in C.S. No. 200 of 1947 and C.A. No. 267 of 1959 were admissible for the purpose of Section 52 of the Transfer of Property Act. The judgments were proceedings admissible both under Sections 40 and 43 of the Indian Evidence Act.(5) If the plaintiffs were right in their contention that the mortgage executed pending their suit did not affect their rights, it was unnecessary for them to adduce further evidence regarding the title to the suit properties. — Narayan Govind Anikhindi v Krishnaji, 1973(2) Mys. L.J. 176.

12. LIS PENDENS

S. 52 —Partition suit — Widow claiming maintenance — Amendment of written statement by widow claiming share — Defendant transposed as plaintiff — Sale after suit but before transposition of parties — If affected by lis pendens. One co-sharer instituted a suit for partition and in that suit a co-sharer's widow claimed maintenance. She obtained an amendment of her written statement and in place of maintenance, she prayed for a share in the suit property as the heir of her deceased husband and was transposed as plaintiff in the suit and the original plaintiff was transposed as defendant. The alienation in favour of the 1st defendant took place

after the institution of the suit but before the present plaintiff applied for amendment of the written statement. Ultimately, the plaintiff's claim for a share was decreed. Held, that the alienation, in favour of the 1st defendant was affected by the rule of lis pendens. Once the requirements of Section 52 of the Transfer of Property Act are satisfied, it is immaterial what was the nature of the dispute between the parties to the suit. — Parameshwar Shivambhat v Saraswati, 1966(1) Mys. L.J. 680.

13. LIS PENDENS

S. 52 — Suit for maintenance praying for charge — Sale pending — If affected — Admission — Value and weight — Approbate and reprobate — Principle of — Pleadings — No specific issue — Effect. The original owner of the properties died leaving a widow, three sons K, M and B and three minor daughters, Sh, Sr and D. On 1-9-1918, the three brothers executed a usufructuary mortgage in favour of AH over properties including those in the present suit. The widow and two of the minor daughters filed in 1919 suits in forma pauperis against the brothers for maintenance and marriage expenses and for a charge on the properties. The suits were decreed and in execution of the decree of D, the present properties were sold and purchased by D on 2-8-1928. K was adjudicated insolvent on 19-2-1926. L.Rs of AH filed a suit on the mortgage in O.S. No. 8 of 1933 and in execution of the mortgage decree the properties were sold and purchased by C in 1937, who sold them to KR the present plaintiff. The three brothers entered into a partition on 6-9-1938 and K sold the present suit properties which fell to his share on 30-1-1920 to N and ultimately they vested in the defendants. Plaintiff filed a prior suit O.S. No. 92 of 1938 alleging that the decree and sale in O.S. 100 were collusive and obtained a decree. But on appeal the matter was compromised, which recognised the title of plaintiff. Plaintiff sued for declaration of his title and removal of obstruction on the basis of title of C by purchase in execution of the decree on the mortgage of 1-9-1918. The defendants were not made parties to the mortgage suit O.S. No. 8 and hence claimed their right of redemption. It was held by the High Court that by reason of Section 52 of the Transfer of Property Act, the title of N (and of the defendants) under sale dated 30-1-1920 came to an end. When D purchased the properties in execution. It was contended that the sale of 30-1-1920 was not hit by Us pendens by reason of the maintenance suit O.S. 100, on the grounds to the question of lis pendens was not raised in the plaint, that the suit O.S. 100, the decree and sale were all collusive and the execution sale in O.S. 100 was void as the official receiver of K's estate was not impleaded in that suit.Held,(1) Though the plaint did not aver lis pendens and there was no issue, it was raised by plaintiff at the very commencement of the trial, evidence was let in without objection by defendants and the question was argued on merits by defendants and therefore the absence of a specific pleading did not bar the question of lis pendens being argued. As both parties went to trial on the question of lis pendens and as the defendants had not been taken by surprise, the plea was open to the plaintiff.(2) That the predecessor of defendants AH had been stating in the several proceedings that the sale dated 2-8-1928 was fraudulent, did not amount to allegation of collusion. In a collusive suit, the combat is a mere sham while in a fraudulent suit it is real. The statements of AH and his L.Rs in the prior

proceedings as admissions which could be shown to be erroneous or untrue. The judgment in O.S. No. 92 of 1938 not being inter parties was not admissib; in his litigation, and there having been an appeal, the findings lost their finality and when the parties settled the matter, they ceased to possess any force even inter parties.The plea that the decree and sale in O.S. 100 were collusive was not barred by the principle of approbate and reprobate. The maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the some transaction and to the persons who are parties thereto. Plaintiff obtained no advantage against the appellants by pleading collusion in O.S- No. of 1938 nor did he acquire rights thereby and there was also no question of election, because the relief claimed then and now are the same, though on different and even inconsistent grounds.(3) As K had sold the property on 30-1-1920, it did not vest in the official receiver when he was adjudicated on 19-2-1926 and non-impieading of the official receiver did not affect the sale of 2-9-1928 in execution of O.S. No. 100 of 1919. The sale of 30-1-1920 though pendents lite was operative between the parties and a transferor pendente lite cannot be treated for purposes of Section 52 of the Transfer of Property Act as still retaining title to the properties. Even assuming that the equity of redemption vested in the official receiver on the adjudication of K, his non-joinder in the execution in O.S. 100 did not render the purchase by D a nullity and under that sale she acquired a good title subject to any right which the official receiver might elect to exercise and it was not open to attack by the purchaser pendente lite under the deed dated 30-1-1920 and his representatives.(4) Hence, the sale deed dated 30-1-1920 under which the appellants claimed was subject to the result of the sale deed dated 2-8-1928 in execution of the decree in O.S. No. 100 of 1919 by reason of the rule of lis pendens and it became avoided by the purchase by D on 2-8-1928. The appellants as purchasers of the equity of redemption from K did not have the right to redeem the mortgage of 1-9-1918. — Nagubai Amal and Others v B. Shama Rao and Others, ILR1956 Mys. 152 (SC).

14. LIS PENDENS

During suit, sale by defendant, pursuant to earlier agreement — Plaintiff getting sale deed executed — Suit for possession limitation, Pending a suit for specific performance, defendant sold the property on 30-12-1948 (to the present 2nd defendant) in pursuance of an earlier agreement to sell. Plaintiff's suit was decreed and he got a sale deed executed through Court on 29-12-1955. The present suit was filed on 14-12-1961 for possession,Held,(1) That the sale by defendant on 30-12-1948 was affected by lis pendens under Section 52 of the Transfer of Property Act, notwithstanding that the alleged agreement for sale in favour of the transferee from the defendant was of a date earlier than that of the agreement in favour of the plaintiff. 1964(1) Mys. L.J. 236, rel.on.(2) The principle of lis pendens being a principle of public policy, no question of good faith or bona fides arises. Hence, the transferee from one of the parties to the suit cannot assert, or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. Hence, the possession of transferee from the defendant was not adverse to plaintiff.

(3) The plaintiff's right to ask for possession arose on the execution through Court of the sale deed on 20-12-1955 and the suit for possession filed within six years from that date was not barred by limitation. — Mohammed AH Abdul Chanimomin v Bisahenii Kom Abdulla Saheb Momin, 1973(1) Mys. L.J. 130 : AIR 1973 Mys. 131.

15. PURCHASER AT AN AUCTION SALE

A purchaser at an auction sale held in terms of a consent mortgage decree, is not entitled to recover actual physical possession of the premises in the occupation of lessees, the lease in respect of which were created after consent mortgagee decree was passed on an application under Order 21, Rules 95 and 96 of the CPC. The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. Section 52 of the Transfer of Property Act also did not help the auction purchaser. He was an outside purchaser was not the mortgagee, nor was he a party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the right of the parties to the suit or proceeding. AIR 1973 SC 569 Rule of lis pendens may not strictly apply to previous Court auction sales. — Syndicate Bank v Pundalika Nayak, ILR 1986 Kar. 3776.

16. TRANSFER PENDENTE LITEDoctrine of lis pendens appiies to auction sale held by executing Court of judgment-debtor's property which was subject-matter pending suit or decree pending execution — Doctrine to be applicable, decree pending execution at time of auction sale must be valid decree — Where decree was invalid at time of auction sale, but was validated subsequent to auction sale, it would not affect title of auction purchaser who was bona fide purchaser for value without notice of decree — Thus in case where property is subject-matter of suit for specific performance of contract to sell which was decreed, but mortgage decree instead of decree of specific performance was wrongly drawn up and during pendency of that wrong decree, same property was brought to auction sale by Bank as decree-holder, auction purchaser is not affected by mortgage decree which was then not executable — Subsequent amendment ...and rectification of such decree would not bind auction purchaser as he was not made party to amendment.Held: Doctrine of lis pendens does apply to auction sales by the Executing Court of any immoveable property of judgment-debtor which way-subject of dispute in a pending suit. . . . .The doctrine of lis pendens does not operate and would be inapplicable in the case of purchase by an innocent purchaser of the immovable property which is the subject of an existing illegal or inexecutable decree and that its amendment or rectification made subsequent to his purchase does not ensure to the benefit of the decree-holder as against him, to which amendment proceeding he was not a party. .... .In the case on hand the plaintiffs had remained callous and indifferent in seeking rectification of the said void decree dated 31-5-1977 and the material on record demonstrates that they and the judgment-debtor as well appear to have deliberately allowed the auction purchaser to purchase the property during existence of that illegal decree of which he had no knowledge, whatsoever, plaintiffs had not acquired under the said decree any right to purchase the

property in question. The decree in its present form was inexecutable and the Trial Court had no power to deal with the property under the same. The auction purchaser was not bound by the subsequently rectified/amended decree since he was not a party to that amendment proceeding. Therefore, the considerations of equity require protection of interest of the intervening auction purchaser of the property when pitted against the plaintiffs' claim to the right to purchase the same under the said void decree. In the facts and circumstances of the case, the doctrine of Us pendens cannot be held operative against the purchase of the said property by the auction purchaser. — B.V. Vasantha v Sha Poonawchand (deceased) by LRs. and Others, 1997(3) Kar. L.J. 691A : ILR 1997 Kar. 1561.

17. TRANSFER PENDENTE LITE

Transfer pendente lite — Applicability of doctrine of lis pendens to — Lis pendens which starts from presentation of suit, continues till decree is executed, and doctrine is attracted to all transfers made during period — Private sale made by judgment -debtor who is aware of decree and of attachment made before judgment, and who has no evidence to prove that transfer is for consideration, has to be held fraudulent and voidable at instance of auction purchaser, even though sale was made after dismissal of execution petition for non-prosecution but before its restoration. The judgment-debtor is aware of the decree and the attachment before judgment and also attachment in execution. Therefore, the transfer is intended to defeat or delay the creditors. The private sale embarked upon by the respondent is hit by Us pendens and no title can pass on to the vendor, the respondent herein. . . .The Court auction sale must be respected as against the private sale indulged by the judgment-debtor when the matters are pending and fought tooth and nail by the decree-holder. — Kanthilal v Smt. Padma Maiya and Others, 1999(3) Kar. L.J. 193D : ILR 1999 Kar. 2114.

18. TRANSFEREE PENDENTE LITE — RIGHT.Transferee during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to Government which is the matter of the suit, have locus standi to appear before the revenue authorities in proceedings under Section 54 of the CPC, and ask for an equitable partition of the lands, even though they had not been impleaded as parties to the suit in the Civil Court. The position of a transferee during the pendency of a suit or proceeding is similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or proceeding, or an official receiver who takes over the assets of such party on his insolvency. — Khemchand Shankar v Vishnu Hari, 1983(1) Kar. L.J. Sh.N.78(SC).CASE LAW AND ILLUSTRATIONS ON TRANSFER OF PROPETY

Removal of sand from silted land — If improvement.

Removal of sand which had become necessary as a result of sand accumulating on agricultural land, after floods year after year does not amount to an improvement effected to the land, inasmuch as it is only restoring the land to its cultivate character. — Puttanna Shetty and Another v Nagaratnamma, 1981(2) Kar. L.J. 424.

Family settlement does not amounts to transfer of property. Ramcharan Das case AIR 1966 SC 323. However in a case of Kokilambal &othrs case: AIR 2005 SC 2468 it is held that Settlement is one of the modes of transfer of immoveable and moveable properties. In order to find correct intent deed has to be read as a whole.

Family settlement made orally needs no registration. Kale and othrs case AIR 1976 SC 807. Once it is put to writing it needs registration. Tek Bahadur Bhujil case AIR 1966 SC 292.

If the instrument releases right title or interest in a property without consideration, it is transfer of property. Kuppuswami Chettiar case: AIR 1967 SC 1395. A transfer of co-parcenary property without consideration would be void. Rajamma Dhodura case: 1970 (1) MyLJ 489.

Guardian cannot transfer the property of a minor during the minority of minor without leave of the court and but for the benefit of the minor. If father is the guardian, the sale becomes only voidable when action is brought within three years from the date on which minor attained majority. Amritham Kudumban case: AIR 1991 SC 1256.

It is Jurisprudentially settled principle that no person can transfer a better title than what he has. Harihar Prasad Singh case: AIR 1956 SC 305.

AGREEMENT TO RECONVEYPlaintiff purchased certain property and on the same day executed an agreement to reconvey after six years. Subsequently, the vendors executed an agreement P. 1, that they would release the agreement of reconveyance and the plaintiff sued for specific agreement of Ex. P. 1. Defendant 3 claimed to have purchased the right to reconveyance from the vendors without notice of Ex. P. 1 for consideration. In the agreement to reconvey it was stated that before the properties are reconveyed the costs of major repairs should be paid to the plaintiff. Held, but for wilful absention from inquiry, defendant 3 would have come to know the facts and hence he should be deemed to have notice of the rights of the plaintiff. Further, since plaintiff was in actual possession as owner, but for the reconveyance which is a concession given by the vendee and if not enforced within the time stipulated, the right becomes barred. — Narayanaswamy Naidu H.N. v Deveeramma and Others, AIR 1981 Kant. 99.

CONSTRUCTIVE NOTICE OF MORTGAGE BY DEPOSIT OF TITLE DEEDVendee who is bound to make enquiry for title deed but fails to do it should be held to have notice of mortgage effected by vendor by deposit of title deed in town where such mortgage is valid by virtue of notification issued by State Government. The property in question was mortgaged in favour of the plain tiff-bank by way of deposit of title deeds. The place Hospet, where mortgage was created has been notified town within the meaning of clause (f) of Section 58 of the Transfer of Property Act, 1882. The relevant notification is dated 29-1-1981, wherein Hospet has been notified at SI. No. 106- .... Section 59 of the T.P. Act specifically provides that mortgage by deposit of title deeds is not required to be registered. Further, it is also" well-settled that wilful abstinence from making enquiry regarding actual state of affairs amounts to 'notice' within the meaning of Section 3 of the T.P. Act, .... In the present case, the vendor though obliged to disclose the defects in the property at the time of sale and on demand to produce the documents of title but admittedly he had failed to do so. In that situation, it was incumbent upon the purchaser to insist for production of title deeds or enquire regarding whereabouts thereof. But no evidence has been placed on record to show that any such effort was made. .... In that view of the matter it has to be held that the defendant-appellant has wilfully abstained from making enquiry, as such she will be deemed to have the notice of the defects in the title. — Smt. Kori Goivramma v The Vysya Bank Limited, Kampli and Others, 2001(2) Kar. L.J. 524 (DB).

ONLY THE PERSON WHO IS SAID TO BE THE EXECUTOR OF A DOCUMENT MUST DENY THE EXECUTION OF THE DOCUMENT AND NONE OTHERS

Suit for declaration of title and possession under deed of — Where party who had executed registered sale deed has admitted execution thereof, dismissal of suit on ground that execution of sale deed has not been proved by examining at least one of attesting witnesses, held, is legally unsustainable — Relief sought for in suit is to be granted to party by-decreeing suit. Denial of execution of the document must be made by the person who purports to have executed it. In other words, only the person who is said to be the executor of a document must deny the execution of the document and none others. . . Execution of the sale deed is not denied. The Courts below committed an error by going into the proof of execution of the document. . . In the instant case, neither the first defendant nor defendants 5 and 6 are the executants of the sale deed. Therefore, question of going into the genuineness or otherwise of the same was wholly unwarranted. . . The judgments and decrees of the Courts below, which are contrary to law, ore liable to be set aside. . . In the written statement filed by the 7th defendant he has admitted execution of the sale deed in favour of the father of plaintiffs. He being the executant of the document, having admitted the execution, question of further proof is not necessary. . . Once the sale deed is held duly executed, it follows that the plaintiffs had title to the suit schedule property. As long as it is in force and not set aside or declared void by any competent Court, the right of the plaintiffs has to be protected. Defendants have utterly failed to prove independent right over

the suit schedule property or that the same is joint family property. It follows that plaintiffs are entitled to the judgment and decree sought for by them in the suit. — Raghavendra Rao and Others v N. Veeravenkatmo and Others, 2002(3) Kar. L.J. 150.

BEQUEATH OF PROPERTY UNDER WILL IS NOT TRANSFER OF PROPERTY

Transfer of property — Temporary injunction restraining party from effecting — Bequeath of property by .party by Will executed during pendency of temporary injunction — Validity of Will —Held, valid — Bequeath of property under Will is not transfer of property, as transfer effected under Will is not transfer inter vivos — Will is only legal declaration of intention of party with respect to his property which he desires to be carried into effect after his death — Will creates no right or title or interest in favour of anyone during lifetime of testator. The differences between a transfer and a Will are well-recognised. A transfer is a conveyance of an existing property by one living person to another (that is transfer inter vivos). On the other hand, a Will does not involve any transfer, nor effect any transfer inter vivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into effect after his death. In other words, a Will regulates succession and provides for succession as declared by it (testamentary succession) instead of succession as per personal law (non-testamentary succession). The concept of transfer by a living person is wholly alien to a Will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on the happening of a specified contingency, a Will is revocable and comes into operation only after the death of the testator. Thus to treat a devise under a Will as a transfer of an existing property in future, is contrary to all known principles relating to transfer of property and testamentary succession. .... By execution of a Will, no right or title or interest is created in favour of anyone during the lifetime of the deceased. — N. Ramaiah v Nagaraj S. and Another, 2001(4) Kar. L.J. 12A (DB).

TRANSFER DEED AND WILL

Transfer is conveyance of property by means of deed and transaction is between living persons — Deed operates co instanti and Will become operative on death of testator — Deed is irrevocable, but Will can be revoked by testator — Court can rectify mistake in deed, but cannot rectify Will — Consideration is basis of deed, but no consideration is required for making Will. The word "transfer" is defined with the reference to the word "convey". This word in English Law in its narrower and more usual sense refers to the transfer of an estate in land; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The definition in Section 205{1 )(ii) of the Law of Property Act is — "Conveyance includes a mortgage, charge, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any instrument except a Will. The word "conveys" in Section 5 of the Indian Act, is obviously used in the wider sense referred to above. "A transfer of property" as defined in the present section does not necessarily involve

the execution of an instrument of transfer or a conveyance. In the case of moveables and generally in the case of immovable property of a value of less than Rs. 100/-. A transfer may be effected by delivery of possession. The words "living person" exclude transfers by Will, for a Will operates from the death of the testator. Disposal of immovable property by Will would not amount to a transfer within the meaning of Section 5 of the Transfer of Property Act. .... .A Will differs from a deed in the following respects: a deed operates co instanti, i.e., from the date of its execution; a Will comes into operation on the death of the testator; a deed is ordinarily irrevocable, unless there is an express power of revocation; a Will can be revoked at any time by the testator during his life time. It is ambulatory and it becomes effective and irrevocable on the death of the testator; in case of mistake in a deed, the Court has power to rectify it; a will cannot be rectified by any Court of law. No consideration is required for making a will. Thus disposition of property takes place posthumously after the death of the testator. Therefore there is no transfer co instanti as in case of any other deed like a sale deed, gift, exchange, mortgage, lease or assignment. — Kongappa Govinda v Jinnappa Goivnda and Others, ILR1998 Kar. 486.

PARTITION AND FAMILY ARRANGEMENT - RECORDS OF A PREVIOUSLY COMPLETED- REGISTRATION

It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(l)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it docs not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(l)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Indian Evidence Act, 1872; (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: The tests for determining whether a document is an instrument of partition or document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bosc, J., in Narayan Sakharani Patil v Co-operative Centra! Hank,

Malkapur and Others , ILR 1938 Nag. 604 : AIR 1938 Nag. 434. Speaking for himself and Sir Gilbert Stone, C.J., the learned Judge relied upon the decisions of the Privy Council in Thakur Bageshivari Charan Singh v Thakurain Jagarnath Kuari and Others, (1932)59 Ind. App. 130 : AIR 1932 PC 55 and M. Subramanian v M.L.R.M. Lutchman, (1923)50 Ind. App. 77 : AIR 1923 PC 50 and expressed as follows.— "It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit or extinguish... any right, title or interest in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated". Sir Gilbert Stone, C.J., speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil v Namdeo Bhagutmji Pati\, ILR 1942 Nag. 73 : AIR 1941 Nag. 209, reiterated the same principle. See also: Other cases in Mulla's Registration Act at pp. 56-57. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore, if parties actually divide their estate and agree to hold in severally, there is an end of the matter. The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore, the arrangement does not fall within the mischief of Section 17 read with Section 49 of the Registration Act as no interest in property is created or declared by the document for the first time. — Roshan Singh and Others V Zail Singh and Others, AIR 1988 SC 881.

RELEASE – SALE- GIFT

It is relinquishment of some right or interest which person has in property, to another who has already some interest in property and such interest as qualifies him for receiving or availing himself of right or interest so relinquished — Release may be gratuitous or for consideration — Deed of conveyance executed by absolute owner of property transferring property to stranger who has no right or interest in property cannot be deed of release — Such deed can be gift deed or sale deed, depending upon whether transfer is gratuitous or for consideration — Where passing of consideration under such deed is not proved, deed is to be taken as gift deed and valid execution of such gift deed has to be proved in manner prescribed. It is a fact that the defendant had no title to the property in dispute and as in his deposition he claims that he got title to the property on the basis of the release deed only. It means he had no earlier interest or title therein. Release deed means the conveyance of a person's right or interest which he has in a thing or property to another that has the possession thereof or some estate therein. It is the reiinquishment of some right or benefit to a person who has some interest in the property and such interest as qualifies him for receiving or availing himself of the right or benefit so relinquished. The release can be made only in favour of a person who has got some title, right or interest in the property subject-matter of

release itself and not in favour of a stranger. The deed in question has wrongly been called a release deed. The title may be transferred or conveyed may be made in favour of a stranger it may take the form of sale, gift, or in the form of Will to take effect after the death of testator. A gift is a transfer as per Section 122 of the Transfer of Property Act, made voluntarily and it should be without consideration. The complete absence of consideration is hallmark of gift whicFi distinguishes the gift from other transaction for valuable or a desirable consideration. .... In the present case, there is no transfer, as passing of any monetary consideration is not established by evidence. .... The deed could only be taken to be a gift deed. —Smt. Flora Margaret v A. Lawrence, 2000(6) Kar. L.J. 27A.

RIGHT TO FUTURE MAINTENANCE CANNOT BE ASSIGNED

Right to future maintenance cannot be assigned at all — Assignment deed silent as to whether it is limited to arrears of maintenance alone — Held, assignment bad in law. Section 6 of the Transfer of Property Act, 1882, prohibits the transfer of a right to future maintenance, in whatsoever manner arising, secured or determined. The assignment deed in question speaks as though the entire decree for maintenance is assigned in their favour. The right to future maintenance cannot be assigned at all. It does not speak that the arrears of maintenance alone have been assigned to them. Therefore, under these circumstances the assignment itself is bad at law. — Devanidhi Thimmakka v Dodda Thimmappa, ILR 1985 Kar. 1759.

RIGHT OF RESIDENCE - NOT TRANSFERABLE

The right of residence given to a Hindu widow in a family house till her death is a personal right and under Section 6(d) of the Transfer of Property Act, it is not transferable. Hence, a lease created by the widow having personal right of residence is illegal. Even assuming that the widow was competent to create a valid lease, it is determined by her death, by virtue of Section lll(c) of the Act. The tenancy having been determined by the lessor's death, the question of determining the same by notice under Section lll{h) does not arise. — Bhujabalappa Anandappa Baragali v Veerappa Mahabaleshappa Doddamani, 1966(2) Mys. L.J. 56.

SECTION 23 OF THE INDIAN CONTRACT ACT

Validity of a transfer of property must be tested in the light of Section 23 of the Indian Contract Act — Section 24 of the Indian Contract Act is not applicable to a transfer of property under the Act. — Life Insurance Corporation v Devendrappa Bujjappa Kabadi, ILR 1986 Kar. 3759.

INTENTION OF PARTIES MUST BE GATHERED FROM DOCUMENT ITSELFExpress and clear words must be given effect to — Extraneous enquiry permissible only in case of ambiguity in language employed — Real question is legal effect of words used and not what parties intended or meant. Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into ictiaf mis thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of thy words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. — Rantu and Another v Papaiah and Another, 1995(4) Kar. L,J. 421A.

WHETHER SALE DEED OR MORTGAGE DEEDThe intention of the parties is to be gathered from the document itself, an extraneous enquiry of what was thought is ruled out. A perusal of the deed, itself, shows that it was not intended to be a mortgage, but, its entire tenure shows that the parties i.e. vendor executed the Sale Deed as it is and it is the duty of the Court to give legal effect to the terms. The recital in the Sale Deed that possession has been delivered of the land to vendee is prima facie evident in the form of admission of the person, who executed the Sale Deed and admitted the execution of the Sale Deed before the Registrar. That as such really, the burden shifted on the defendant to rebut it. — Hanumappa Bhimappa Koujageri v Bhiniappa Sangappa Asari, 1996(5) Kar. L.J. 67C.

LIFE-ESTATE OR ABSOLUTE ESTATE

Deed of transfer of property — Construction of — Whether confers life-estate or absolute estate on transferee — Where under deed no right is conferred on transferee to alienate any portion of property transferred and stipulation is made for ultimate devolution ,of property on another person after lifetime of transferee, only life-estate is created in favour of transferee with no complete and absolute vesting in him — Where under deed right is conferred on transferee to alienate any portion of property for any purpose, deed operates as gift conferring absolute estate on him notwithstanding stipulation regarding ultimate devolution on another after lifetime of transferee — Clause providing for such ultimate devolution in latter case must be regarded as attempt to impose condition repugnant to absolute estate created under deed and to be ignored as void — On death of transferee intestate property vesting in him under deed devolves on his heirs in accordance with law of succession. The averments are to the effect that the property in question is being gifted to Sharadamma who in turn is permitted to use one-half of the property during her lifetime and she was given the option of donating the other half of the property to a temple or for religious purposes to an institution of her choice for the benefit of the family. The document goes on to

state that the choice of the institution shall be left to Sharadamma as far as one-half of the property is concerned but it states that as far as the other half is concerned which is retained by Sharadamma, that it will go to Rajamma and her sons after Sharadamma's death. There is one more stans which states that if the option to donate half the property for religious purposes is not exercised and if Sharadamma retains the whole of the property then, that on her death the whole of it will devolve on Rajamma and her sons. There is a general embargo both on Sharadamma and Rajamma as far as alienation of the property is concerned which appears to signify that Sadamma desired that save and except the possible donation of one-half of the property for religious purposes, that neither of her daughters were permitted to alienate the property to a third party insofar as obviously she desired that it should stay in the family and that too with the sons of Rajamma since Sharadamma had no children. When a gift is made, the vesting is absolute and if there are clauses that are repugnant to the absolute and beneficial enjoyment of that property, those conditions are void and it will not affect the gift itself. In other words, the property vests dehors the restrictions. The transfer in the first instance was to Sharadamma. That transfer in law must be an absolute transfer, that is so, there is no residuary interest left with the retransfer considering the law that is applicable to a gift. More importantly, the most vital aspect of the matter is that the document itself conferred on Sharadamma the absolute right to alienate one-half of that property which means that she could sell or legally transfer that half provided it was done for religious purposes, This power that was vested in Sharadamma indicates two legal implications, the first of them being that she could only execute such a transfer of half the property provided she was the rightful holder of that property and not otherwise and secondly if the intention was to create only a life interest in her, that then she could not have been vested with the power of transfer. The power of transfer is not confined to a particular half of the property. There is a reference that in her discretion she could transfer any or either half of that property. This presupposes the fact that it has vested in her absolutely and it was left to her to decide which part of the property was to be transferred. This could not ever have been done by a life interest holder and Sadamma could not have conferred this power on Sharadamma if her intention was only to create a life interest. Had Sadamma's intention been that the property must vest in Rajamma's branch absolutely, then the document would have stipulated that if at all such alienation is to be done, that it would have to be done with the joint consent of Rajamma and Sharadamma and not by the latter alone. Viewed at from any angle the transfer was an absolute gift in favour of Sharadamma. The subsequent provisions with regard to the property vesting in Rajamma's branch of the family after Sharadamma's death is nothing more than a desire on the part of Sadamma, those stipulations in the document will have to be ignored for the reason that once it is held that the property was vested in Sharadamma, it would act as a restrictive clause, vis-a-vis her absolute and beneficial enjoyment. Therefore, the bar on alienation and the requirement that the property must go to Rajamma's branch of the family would have to be ignored. The aforesaid document must be treated as having conferred absolute rights in respect of the whole of the property on Sharadamma and on her death, since she had no children, by operation of the provisions of Section 15 of the Hindu Succession Act, property must devolve equally on Rajamma or her heirs. — Smt. Vimala v B. Narayanaswamy (dead) by L.R’s. and Others, 1995(6) Kar. L.J. 143A.

A CONDITION PROHIBITING TRANSFER OF A LIFE INTEREST IS BAD.

V.K. Ratnasabhapathy Mudaliar v Dhondusa, 1960 Mys. L.J. 1118 : ILR 1959 Mys. 1074.

LIFE INTEREST IN PROPERTY - INJUNCTION RESTRAINING ALIENATION CANNOT BE GRANTED

Alienation — Suit against — Maintainability — Injunction restraining alienation cannot be granted as such restraint is against tenor, tone and ambit of Act — When person with only life interest in property transfers it, title that transferee gets is no better than that of transferor — Ultimate owner is entitled to possession after lifetime of transferor. Held: Injunction is not maintainable because if such injunction is granted it will be against the very tenor, tone and ambit of the Transfer of Property Act. On this ground the suit is not maintainable. . . . .Life interest of the first defendant can be alienated, but it shall be subject to the right of the plaintiff who is the ultimate owner of the property and who shall be entitled to possession after the life time of the first defend ant/first appellant. — Badigera Veeravva and Others v Badigera Bhadrachari and Another, ILR 1997 Kar. 3089.

PARTITIONS AND FAMILY ARRANGEMENTS — CONDITION RESTRICTING POWER OF ALIENATION

Section 10 of the Transfer of Property Act can have no application unless there is a transfer of property from one person to another and the transfer is accompanied by a condition absolutely restraining alienation. When a partition takes place between two or more members of a Hindu joint family, it would be difficult to regard the partition as involving a transfer of any property from one co-sharer to another. Hence, a condition in a partition deed to which one of the parties agreed that he would not alienate certain properties but would only enjoy them during his and his wife's lifetime cannot be regarded as a ' void condition. An arrangement entered into between the adopted son and his adoptive father (to which the wife and foster son of the adoptive father were parties), which provided that the adoptive father and his wife should both be entitled to enjoy certain properties during their lifetime, cannot be regarded as a partition between coparceners under Hindu Law. It is really in the nature of a family settlement. Section 10 of the Transfer of Property Act can have no application to a family arrangement into which two or more persons may choose to enter, under which an absolute estate is created in favour of some parties and a limited estate is created in favour of others. An arrangement of that description is not one under which there is any creation of a prior absolute estate, the diminution of which is brought about by the annexation of a condition imposing a restraint against alienation. — Channabasappa v Shankariah and Others, 1961 Mys. L.J. 443 : ILR 1961 Mys. 932. A restriction on alienation in a deed dividing properties of the family for purpose of convenience of enjoyment is not invalid. — Gummanna Shetty v Nagaveniamma, AIR 1967 SC1595.

GOVERNMENT GRANTS – NON ALIENATION CONDITIONS.

Section 10 of the Transfer of Property Act, or the rule against perpetuities do not apply to Government grants. Hence, a condition prohibiting alienation for ever or a permanent restraint on alienation of granted lands if authorised by law regulating such grants, is not void but a valid condition. — Laxmiamma v State o/ Karnataka and Others, AIR 1983 Kant. 237.

RELINQUISMENT DEED-NOT REGISTEREDIf the documents had stated that they had already relinquished their rights over the plaint properties in Exhibits D-28 and D-29, it could be classified as a memorandum of previous arrangement that had already taken place. But, in both the documents it is stated clearly that only innu they do not have any right over the properties. This would clearly indicate that they had relinquished their rights over the immovable properties on the dates of Exhibits D-28 and D-29. The dictionary meaning of the word innu is "hereafter" (Kannada-English Dictionary by Rev. F. Kittel, page 191). Therefore, nothing has been conveyed under Exhibits D-28 and D-29. Since the said documents have not been registered, the First Appellate Court was not justified in allotting the shares of defendants 2 and 3 to defendant 1 in addition to his own. — Robert Fernandes and Others v Louis Fernandes and Others, 1993(3) Kar. LJ. 173.

REGISTERED AGREEMENT CONSTRUCTIVE NOTICE TO ALL

Transaction with respect to immovable property which is compulsorily registrable and has been duly registered operates as constructive notice to subsequent transferees. If a particular transaction with respect to immoveable property is required by law to be registered and has been effected by a registered instrument then any person subsequently acquiring such property or any interest therein shall be deemed to have 'notice' of such instrument as from the date of its registration. In other words, by this statutory fiction registration of compulsorily registrable instrument under the Registration Act effecting transfer of property is by itself sufficient notice of such transaction to any person who thereafter acquires any right or interest whatsoever in that property, although in reality such a transferee may not be having actual notice of that prior registration of such document. Thus the registration of compulsorily registrable instrument creates the doctrine of constructive notice in law. This presumption of constructive notice could be successfully dislodged by him only when he satisfactorily proves that despite his honest enquiry and search of relevant registration records in the office of concerned Sub-Registrar he could not come across the entries therein disclosing the fact of prior registration of a document creating any charge on or encumbering the particular property in favour of any third person in any manner whatsoever. But for this doctrine to come into play the legal requirements stipulated in proviso to Explanation 1 must be shown to have been duly complied with. These requirements are that a compulsorily registrable instrument effecting conveyance

of a right or interest in immoveable property from transferor to the transferee must be registered by the Registering Authority strictly in the manner prescribed by the Indian Registration Act, 1908; and the relevant entries thereof are duly entered or filed in accordance with Sections 51 and 55 of the Act. Then alone that registration operates in law as a notice to the subsequent transferee and presumption of implied or constructive notice could be drawn against him. — Sha Champaial Oswal v Peralu Achanna and Another, ILR1997 Kar. 3434.

IN A SALE TRANSACTION, POSSESSION PLAYS AN IMPORTANT ROLE

Owner agreeing to sell property to tenant and accepting part payment of consideration and permitting tenant to effect improvement — Tenant's suit for specific performance of contract — Possession of tenant is sufficient notice to subsequent purchaser of tenant's equitable interests including interest arising out of agreement of sale — Where property is in possession of tenant it is duty of purchaser to make enquiries and where he has chosen to make no enquiry of tenant, he cannot claim to be bona fide purchaser for value without notice — Tenant's interest arising from agreement of sale — Tenant is entitled to decree of specific performance in his favour. In a sale transaction, possession plays an important role and it is normally expected of a purchaser to enquire about the possession of the property and to find out whether he would get vacant possession or khas possession (constructive possession) from the tenant. Had the second defendant made the smallest of smali enquiry with the plaintiff and enquired about his possession and his position after the intended purchase by the defendant 2, the second defendant would have immediately come to know of the agreement of sale in favour of the plaintiff. The simplest of simple enquiry expected of the second defendant has not been embarked upon him. This one ground is sufficient to hold that he has not purchased without notice. . . . .Whenever the possession of a property is at the hands of the tenant, the intended purchaser must make enquiry with that tenant to ascertain the nature of possession and also to find out how he will get possession after he purchased the property. The plaintiff is a tenant in possession and admittedly no enquiry is made in this case by the second defendant. Added to that, the second defendant and her husband were the silent spectators to the improvements made to the property by the plaintiff and did not even care to find out whv such an improvement Us the extent of changing their roof itself is being indulged by the plaintiff. In this view it has to be held that the purchase made by the second defendant is without proper enquiry and he cannot be considered as a bona fide purchaser without notice. — Smt. Shobha Sadanand Ramanakatti v Smt. Vasantibai and Other?, ILR 1998 Kar. 485.

HINDU LAW - PARTITION - LIMITED ESTATE

Suit schedule property allotted to share of father and mother with condition that they were entitled to enjoy during their lifetime and that after their death the property should devolve in equal shares to their two sons — Sale of property by parents to one of their sons — Validity of sale — Where opening para of partition deed gives absolute estate and not limited estate in property allotted to share of

each party, addition of such stipulation at end of deed in regard to share of parents only, cannot be interpreted as restraint on alienation — Sale, held, cannot be declared invalid. A plain reading of the partition deed suggests that " 'A', 'B' and 'C' schedule properties are given to the shares of the respective parties with a emphasis added that each one of them should get their khata of the property mutated in their names and should enjoy the properties in the manner they like . This would give no doubt and difficulty to appreciate that what is granted is a absolute estate and not a limited estate. The latter stipulation provides mat after the demise of the parents, the plaintiff and the defendant shall equally take the property. This cannot be interpreted to override the clear terms of grant under partition. The restrictive covenants should be cautiously and carefully interpreted. The restrictions which are express would render no difficulty. However, while implied restrictions if they are to be read into terms of the document should be so clear and unambiguous to suggest the one and only inference in favour of the restrictive covenant set up or pleaded otherwise, if stipulations are ambiguous, susceptible to contrary or alternative meaning, it would not be permissible to read into the said stipulation by inference restrictive covenant. In the instant case, it is possible to assume from the stipulation that an absolute estate is granted in favour of the parents in view of the terms that they should enjoy the property in the manner they like and in the event of they dying intestate and that fuli or any part of the property available is left for intestate succession, in such a situation latter stipulation may come into effect, otherwise not. — K. Munisivamy (Deceased) by LR’s v K. Venkataswamy, 2000(6) Kar. L.J. 487.

GIFT OVER TO UNBORN PERSON

Where the donor transferred a property in favour of defendant and by the very transfer created an interest for the benefit of the unborn sons of B, the case is governed, not by the provisions of Section 13 of the Transfer of Property Act but by the provisions of Section 20. The son of B gets a right immediately on his birth. Sections 13 and 20 refer to creation of interests of different characters. Section 20 refers to the creation of a limited interest in the first instance and the creation of successive interest in someone thereafter. In a case like that what Section 13 forbids is the creation of an interest in favour of the second person unless that interest is the entire interest possessed by the transferor. — Konahally Vasanthappa v Konahally Channbasappa and Others, AIR 1962 Mys. 98.

ORAL GIFT — Daughter in occupation of her deceased father's property and claiming title thereto under — Claim, held, is not maintainable in absence of registered gift deed — Mere possession is not sufficient, where deceased had gifted suit property under registered gift deed to his wife, who in turn, had sold same to third party, again under registered deed of sale — Daughter's claim is not maintainable against vendee claiming title under registered sale deed. The plea of title set up by the appellant in the petition property is not tenable and acceptable in law. The property in question is an immovable property valuing more than Rs. 100/-, it is necessary that any transfer ol interest in an immovable property under Section 17 of the Registration Act, 1908

CASE LAWS RELATED TO STAMP ACT AND RULES IN KARNATAKA - INDIA INSTRUMENT DULY STAMPED

Instrument duly stamped' means that it bears stamps of required value with reference to nature of and content consideration in instrument — No impounding of document or levy of penalty on mere presumption of undervaluation — Enquiry as to whether there is undervaluation or not and determination of market value and demand proper duty on market value is post-registration enquiry — Deputy Commissioner to determine market value after giving notice to parties — No levy of penalty for undervaluation and evasion of stamp duty without first determining market value. To be 'duly stamped' an instrument should comply with three requirements: (i) the stamp must be of the proper amount; (ii) should bear the proper description of stamp; (iii) the stamp must have been affixed or used according to law for the time being in force. It is evident from sub-section (2) of Section 33 that for determining whether an instrument bears the proper stamp and thus complies with the requirement of being 'duly stamped', the stamp duty payable on the instrument must be determined only with reference to the terms of the instrument and not evidence dehors or beyond the instrument. Section 33 does not contemplate an enquiry, with reference to material other than the instrument itself, to reach a conclusion as to whether such instrument is duly stamped or not. In other words, only the description, nature and contents of the document and the consideration mentioned in the instrument can be looked into, to find out whether instrument is 'duly stamped'. If a property of the market value of Rs. 25,000/-, is conveyed under a sale deed, mentioning the sale consideration as Rs. 10,000/- and the stamp duty at the specified rate is paid on Rs. 10,000/- then it is duly stamped for purposes of the Act, even though there may be undervaluation regarding market value. This is so, because, to find out whether there is undervaluation, an enquiry beyond the terms and contents of an instrument, is required, to determine the market value. Undervaluation cannot be assumed merely with reference to the terms or contents of an instrument but can be determined only with reference to external evidence relating to market value. Section 33 does not contemplate or permit any such enquiry into the market value of the property which is the subject-matter of the instrument, nor determination whether there is any undervaluation. Thus, a deed of conveyance bearing the necessary stamp duty at the specified rate on the consideration or value mentioned therein, cannot be considered as 'not duly stamped' and therefore cannot be impounded under Section 33. The Sub-Registrar can send an instrument to the Deputy Commissioner under Section 37(2) for determination of a proper duty under Section 39, only if it is impounded under Section 33, as not being duly stamped. He cannot send an instrument to the Deputy Commissioner under Section 37(2), if he is merely of the opinion that it is undervalued. The Deputy Commissioner while exercising his power under Section 39 of the Act, in regard to an impounded instrument, cannot embark upon an enquiry into the market value of the property; he can only decide whether the instrument is duly stamped or not; and if he finds that it is duly stamped, he shall certify thereon that it is duly stamped; and if it is not duly stamped, he shall require payment of proper duty or the amount required to make up the. same together with a penalty as specified therein. The resultant position is that, there can be no determination of 'proper duty' not levy of penalty under Section 39, in respect of documents which are not impounded or which cannot be impounded. Hence no penalty can be levied under

Section 39, in regard to an instrument which is undervalued. It should however be noted that in regard to instruments which are not duly stamped, but which are not impounded, but registered, the proper duty can be collected by initiation of proceedings under Section 46-A of the Act. Thus the determination whether a document is not duly stamped and therefore should be impounded relates to a pre-registration stage. On the other hand, the enquiry as to whether the document is undervalued or not and the determination of market value and proper duty on such market value, is a post-registration enquiry, which has nothing to do with the registration or validity of the instrument. Thus, if a document which is not duly stamped, is presented for registration, the Registering Officer will not register the document but impound it, and send it to Deputy Commissioner under Section 37(2) so that the Deputy Commissioner can require payment of proper duty and penalty under Section 39. On the other hand, if the document is undervalued, the Registering Officer shall register the document and refer the instrument to the Deputy Commissioner for determination of market value and payment of proper duty under Section 45-A and the Deputy Commissioner has to determine the market value and the proper duty payable thereon after giving the parties, a reasonable opportunity of being heard. Before 1-4-1991, in areas where Section 45-A was not brought into force, there could be no action under Section 45-A, even if the consideration/price/value mentioned in Instruments of Conveyance, Exchange or Gift was less than the market value. In such case, action could be taken only under Sections 28 and 61 of the Act. The combined effect of Section 28(1) and (2) and Section 61 and Rule 15-A was that if there was any undervaluation, the person executing the document could be prosecuted and punished under Section 61. Once Section 45-A was made applicable, of course, the deficit stamp duty could also be collected. But under no circumstances, penalty could be levied under Section 39, in regard to undervalued instruments. - Huleppa Balappa Karoshi v Sub-registrar, Chikodi, 1996(5) Kar. LJ. 605.

BONDDefinition of 'bond' and under Article 12 - Meaning of 'bond' - Schedule - Article 30{c) - 'Security deposit' whether premium or fine under Section 105 of Transfer of Property Act or money advanced in addition to the rent reserved. Security deposit is not the same thing as premium or fine as explained under Section 105 of the Transfer of Property Act, or any money advanced in addition to the rent reserved. Article 12 expressly excludes the other kinds of bonds referred to in the Note appended to the said Article, which are chargeable to duty, under the specific articles mentioned. What follows from the above is that the category of bonds mentioned in the Note, are not exigible to duty as 'bond' in the generic sense as defined in Section 2(l)(a) under Article 12. 'Bond' is a generic term. A bond is an instrument in writing by which «» person binds himself or commits legally to pay a certain sum of money to another on certain conditions. Generally accepted definition of bond is that it is a certificate of evidence of a debt, more fully described in Section 2(l)(a). The security deposit does not answer the description of premium or a fine and the same reason also hoJds good that it is not a bond in the generic sense. Thus, the document is not exigible to stamp duty either as premium or as bond in the generic sense. Chief Controlling Revenue Authority v M. V. Owndrashckar and Others, ILR 1984 Kar. 1003 (FB): AIR 1985 Kant. 61 (FB).

BOND

If a document consists of only an obligation to repay the money, then it may be considered as a bond. But when the document, in addition to the undertaking to repay the money personally, also gives a right to the creditor to recover the money by sale of a specific immoveable property, it will not come within the ambit of 'bond' as defined by the Act. Nflgablmsappa v Laxminarayana, ILR 1985 Kar. 1742.

MORTGAGEWhere petitioner executed a mortgage in 1956 and on Aug. 28, 1958 obtained further accommodation from the creditor and executed a memorandum on Sep. 1, 1958 reciting that the title deeds already with the creditor should be treated as deposit for the equitable mortgage in respect of the further advance and further recited the rate of interest and other conditions, Held: the memorandum was not an instrument of mortgage, but only an agreement relating to deposit of title deeds. Shivacharanlal v State of Mysore, (1963)1 Mys. L.J. 107.

MORTGAGETo constitute a mortgage there must be a transfer of right over or in respect of property. See Bangalore City Municipal Corporation Act, S. 142, (1963)1 Mys. L.J.197.

MORTGAGEMortgage deed - Under the Stamp Act a document to be a mortgage must effect a transfer. A document which has not been registered is not chargeable to stamp duty as a mortgage. AIR 1953 Mad. 764 F.B. followed. Malkajappa v C. Ayyamma, (1964)1 Mys. L.J. 299.

MORTGAGEEssential ingredients of a mortgage deed - There can be no transfer of interest in immoveable property if principal money secured is more than one hundred rupees, unless the mortgage is effected by a registered instrument signed by the Mortgager and attested by at least two witnesses. If documents not registered, it cannot be said the documents have transferred any interest in immoveable property. In such cases liability for levy of duty and penalty, as a mortgage deed arises. — Vasudev Pandurang v Basappa Hanumanthappa, ILR 1985 Kar. 547.

MORTGAGE & HIRE-PURCHASEHire purchase agreement by agriculturists for tractor and implements - Stamp. If under a document there is a transfer of specified property or creation of right over or in respect of property, it should be stamped as a mortgage deed. Where under a hire purchase agreement for tractor and other implements executed by loanees in favour of the Tahsildar, a right is created over specified immovable properties of loanees, the agreement is liable to be stamped as a mortgage under Art. 34(b) of the Act and Art. 47 is not applicable. Chief Controlling Revenue Authority v D.S. James, AIR 1973 Mys. 105

MORTGAGEKarnataka Agricultural Credit Operations and Miscellaneous Provisions Act, 1974 — Form No. 3, Declaration — Offering security of certain immovable property for borrowing of money or financial assistance — Whether the declaration is a simple mortgage for purposes of the Act — Whether the Revenue authorities were justified in concluding that the deficit stamp duty is to be paid? A reading of the provision makes it clear that any instrument which for the purpose of securing money advanced by way of loan or to be advanced by way of loan or one person transfers or creates in favour of another person a right over a specific property is called a mortgage. In the present case a reading of the declaration would make it clear that the party concerned would offer certain property by way of security for the payment of amount of financial assistance and the description of the property is also set forth in the schedule thereto. Therefore it is clearly a case of mortgage, because there is borrowing of money and offer of security of certain immovable property in terms of Section 2(l)(n) of the Act ..... When that declaration is required to be registered and the declaration itself creates interest in respect of the property by way of charge or security in the property in question, it should certainly be held to be a mortgage. Pasalu Thimmappa and Others v Karnataka Appellate' Tribunal, Bangalore and Others, 1994(1) Kar. L.J. 379.

CONVEYANCETransfers other than sale when amount to conveyance? See Arts. 19 and 44, (1966)1 Mys. LJ. 21 FB.

CONVEYANCE OR RELEASEWhere a document recited that there was an agreement to sell on payment of consideration, but that a sale deed was not executed because of the loss of stamp paper purchased for the purpose and that the executant had lost his title to the property by prescription and as the second party who had acquired title by adverse possession wanted a reference deed for collateral purposes, therefore the deed was executed under which the executant relinquished his right, title and interest in favour of the other party, held, the document amounted to conveyance or sale as defined in S. 2(d) of the Act and chargeable to stamp duty under Art. 20 of the Sch. Though the word sale or purchase had not been used in the document, the word 'hereby relinquished' whatever right, title or interest the executant possessed indicated that by the document, the rights possessed by the executant were being transferred in favour of the other party. State by Sub-registrar v M.L. Manjunatha Shetty, AIR 1972 Mys. 263 (FB) : (1972)1 Mys. L.J. 508 (FB).

COPARCENARY - COURT SALESale of coparcenary property between various co-sharers by court - Held, it does not amount to a sale and sale certificate issued under Or. 21, RI. 94 CPC would not be an instrument of sale and question of paying non-judicial stamp paper does not arise - Panduranga Mallya 11 v U. Vamana Mallya and Others, 1988(1) Kar. L.J. 538.

PARTNERSHIP AND PROPERTIES

Deed of declaration of partnership property - Stamp duty chargeable. Ten persons purchased certain coffee estates for Rs. 22,75,000. A registered sale deed was executed in their favour as co-owners. Subsequently the ten persons executed a partnership deed referring to the purchase of the estates by them. Later by the draft deed in question, styled as deed of declaration of mutation of nomenclature, they declared that the estates are the properties of the partnership firm which they had formed and that their relationship in respect of the said estates was not as co-owners but as partners. Held: that the document did not purport to convey the estates to the partnership firm. The document merely recorded the intention of the partners to treat the properties purchased as partnership assets. The change of legal relationship from one of co-owners to partners in respect of immovable properties was not brought about by the instrument but by operation of law, by virtue of the fact that the partners agreed to treat the said properties as partnership properties. Hence the document was neither a 'deed of conveyance' as defined in S. 2(1 )(d), nor a 'deed of partnership' falling under Art. 40 of the Sch. to the Act, but was a 'memorandum of agreement' chargeable to stamp duty of under Art. 5(d) of the Sch. to the Act.For the purpose of bringing separate property of the partners into a common stock of the firm, it is not necessary to have recourse to any written document. As soon as the partners intend that their separate properties should become the partnership properties and they are treated as such, then by virtue of the provisions of the Partnership Act, the properties become the properties of the firm. This result follows byoperation of law. Rebelio v Chief Controlling Revenue Authority, AIR 1971 Mys. 318 (FB).

VILLAGE MAP NOT INSTRUMENT

Map issued by local authority — Production in evidence, of certified copy of — Such map, held, is not instrument attracting payment of stamp duty, as it does not create, transfer, limit, extend, extinguish or record any right or liability — Same produced in evidence for purpose identifying suit property cannot be rejected on ground that it is not duly stamped. Held: Where a document creates some right or liability between the parties transferring certain rights, then it comes within the meaning of definition of an "instrument" and is chargeable to stamp duty. It is in respect of those documents if proper stamp duties are not paid, such documents have to be impounded and the duty and penalty has to be charged, if it is to be admitted in evidence. . . In the present case, what is required to be produced is the certified copy of the map, only for the purpose of identifying the properties described in an "instrument". Therefore, the certified copy of the map does not come within the meaning of Section 2(l)(j) and (k) of the Act so as to direct to pay the duty and penalty. The Karnataka Stamp Act does not provide for paying the duty and penalty in respect of sketches, maps, etc. If the transaction takes between two or three persons under the instrument and is not charged properly, in respect of such instrument the Court can direct the party to pay the duty and penalty as the case may be. But, mere production of the certified copy of the map does not come within the meaning of definition of an "instrument". — Channamma and Others v Shantkumar, ILR 2004(2) Kar. 1052.

KAIDB LAND

Companies Act, 1956, Section 21 — Transfer of Property Act, 1882, Section 105 — Karnataka Industrial Areas Development Act, 1966, Section 14(d) — Industrial plot allotted to company — Lease~cum-sale deed executed in respect of — Company subsequently changing its name and presenting supplementary agreement for registration in order to substitute its old name by its new name in original lease-cum-sale deed, retaining terms and conditions of lease-cum sale unaltered — Company under its new name continuing to be same as it was under its old name except for change of its business of manufacturing readymade garments to software development — By reason of mere change of user of demised property from carrying on one business to another, fresh transaction does not take place — Stamp duty on consideration fixed under original agreement Cannot again be demanded in respect of such supplementary agreement which does not effect transfer or create any new right or liability in respect of demised premises. Held: The appellant was permitted by the third respondent herein to establish a software park. The execution of supplementary agreement became necessary consequent upon the change in the name of the company. By reason of such supplementary agreement although it was permitted to establish a software park but by reason thereof no fresh transaction was entered into. .... The said lease was governed by Section 105 of the Transfer of Property Act, 1882. By reason of the supplementary agreement, a restrictive covenant has been amended in terms whereof the appellant herein was permitted to carry on the business of a Technology Park instead of manufacture of readymade garments/leather garments. Only because the name of the company was changed, the same would not mean that a fresh transaction took place. Having regard to the change in the name of the company, the appellant's name was sought to be substituted in the original agreement. The period of the lease, the quantum of the premium paid and other terms and conditions remained unaltered except the restriction contained in clause 2(q) of the said deed, was removed. By reason of mere change of user from carrying on one business to another, it is true; a fresh transaction does not take place. The terms and conditions of the lease can be changed by mutual consent. Unless the essential ingredients thereof as contained in Section 105 of the Transfer of Property Act are not altered, it cannot be said that the parties to the contract entered into a fresh transaction. The third respondent merely reserved unto itself a right of re-entry on expiry of the said period of eleven years. It could in terms of the covenant of the lease also extend the period of tenancy or terminate the same. Unless the lease itself came to an end, the third respondent did not have any right to re-convey the property. By reason of mere change in the name of the company "Prasad Garments Private Limited" the erstwhile lessee also cannot be held to have transferred its leasehold interest in favour of the appellant herein..... Execution of an instrument which would attract payment of stamp duty in terms of Article -5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the Schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Article 5(f)(i) would have. The appellant admittedly paid the stamp duty in terms thereof.... It is now well-settled

that for the purpose of levy of stamp duty, the real and true meaning of the instrument must be ascertained. .... Having regard to the fact that the entity of the appellant cannot be said to be totally different from Prasad Garments Private Limited and as by reason of the supplementary agreement, no fresh transaction has been entered into, the impugned judgment cannot be sustained, which is set aside accordingly. — Prasad Technology Park Private Limited, Bangalore v Sub-Registrar, Krishnarajapuram, Bangalore and Others, 2006(1) Kar. L.J. 289 (SC).

SETTLEMENT DEED-ATTESTATION

Transfer of Property Act, 1882, Section 123 — Indian Evidence Act, 1872, Sections 68 and 72 — Deed of settlement — Proof of execution of — Since law does not require attestation of such document though it is attested, it may be proved by admission or otherwise, as though no attesting witnesses existed — Examination of at least one of attesting witnesses, held, is not obligatory. Held: The settlement deed is not a document required by law to be attested. Section 72 of the Indian Evidence Act prescribes that an attested document not required by law to be attested may be proved as if it was unattested. The settlement deed though not required by law to be attested, has been attested by attestors. But then under Section 72 of the Indian Evidence Act, it is not obligatory on the part of the person propounding the document to examine the attesting witness. The testimony of the attesting witness is not the only evidence by which a settlement deed can be established. It can be done by other kinds of evidence. — Mrs. Devaki and Another v Mrs. Lingamma, 2002(3) Kar. L.J. 77B.

SETTLEMENT OR GIFT

Settlement and gift —Though under both property is given without consideration, however where gift under registered deed is for providing for dependent, document is deed of settlement and not deed of gift — Since document is intended to have immediate operation, it confers title to property immediately on beneficiary. Held: The word 'settlement' as defined under Section 2(24) of the Indian Stamp Act and Section 2(l)(q) of the Karnataka Stamp Act is a non-testamentary disposition, in writing, of movable or immovable properties made in consideration of marriage, for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or for any religious or charitable purpose and includes an agreement in writing to make such a disposition and where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition. When the document is executed for any of the purposes mentioned in the above sections of the Indian Stamp Act or the Karnataka Stamp Act, then it could be called a 'settlement deed'. There is a clear distinction between the deed of settlement and a deed of gift and both the documents are recognised as the mode of conveyance of the property. A plain reading of the document-Exhibit P. 1 in question makes it clear that what the deceased did under the settlement deed-Exhibit P. 1 was to distribute his properties referred to in that

deed to his wife and daughter for the purpose of providing for them who were dependent on him and were als'o the members of his family. Thus, the document in question squarely falls within the term clause (b) of sub-section (24) of Section 2 of the Indian Stamp Act which sub-section defines the term 'settlement' under the Indian Stamp Act and the same is the definition of the word 'settlement' under the Karnataka Stamp Act also. A perusal of the document shows that the purpose of the same was to distribute or to settle the property of the deceased to his wife and daughter who were dependent on him. Mrs. Devaki and Anothc.r v Mrs. Lingamma, 2002(3) Kar. L.J, 77A.

REFUND OF STAMP DUTY PAID

Refund of stamp duty and registration fee paid — Claim for — Sale deed registered in year 1996, relating to purchase of land claimed to be for construction of cinema house — Claim for refund preferred in 1998 on basis of State Government orders dated 3-6-1994 and 10-12-1997 exempting sale deed from levy of stamp duty and registration fee if land purchased under sale deed is used for constructing cinema house thereon — Claim, held, not admissible, in absence of statutory provision enabling-refund of stamp duty and registration fee. — Raja Rajagopal and Another v State of Karnataka and Others, 2000(2) Kar. L.J. 181.

UNREGISTERED DEED - STAMP AND PENALTY.By an unregistered document which is found to be an usufructuary mortgage deed, no legally valid transfer of any interest in the property in question can be said to have been made, and when there is no such legally valid transfer, the document is not liable to stamp duty and as such no levy of stamp duty and penalty could be ordered. Gurappa Kalappa v Pattanaik, (1974)2 Kar. L.J. Sh. N. 31.

INSTRUMENT WHEN TO BE STAMPED.Stamp duty under the Act is chargeable on an instrument on execution and the instrument should be stamped before or at the time of the execution. Failure to register the instrument after execution is an irrelevant matter for the purpose of determining the question whether the document is chargeable to duty, under the Act. Similarly, failure to obtain the previous sanction of the Collector under S. 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 for the transfer, which invalidates the transfer, has no bearing on the question of the liability of the document to stamp duty under the Act. (1964)1 Mys. L.J, 299 overruled. — Anna Rao v Bandeppa, AIR 1971 Mys. 63 : (1970)2 Mys. L.J, 442 (FB).

REDUCTION OF STAMP DUTYNotification Issued for — Since concession under notification dated 28-9-1994 is only for land purchased for construction of duly approved new cinema theatre, denial of concession for purchase of land with cinema theatre already existing thereon, is valid. Held: The notification dated 28-9- 1994 provides for exemption and concession only for the lands purchased for construction of the duly approved new cinema theatre and the said Government Order is not applicable to the lands with existing cinema theatre. In the present case the sale deed dated 13-2-1997

discloses the existence of Vinayaka cinema theatre as and therefore at the time of the execution of sale deed the cinema theatre was already in existence. Therefore, the order passed by the District Registrar and Deputy Commissioner of Stamps, Tumkur District is justifiable one and it is in accordance with law and it cannot be interfered with by this Tribunal in this appeal. — K.B. Nagendra and Another v The Deputy Commissioner for Stamps and Registration, Tumkur District, Tumkur and Another, 2002(53) Kar. L.J. 82B.

SOCIETY PROPERTY TRANSFERRED TO TRUST

Document described as Deed or Trust by President of National Education Society - Whether the document is a deed of trust or settlement deed - Terms of deed - Society becomes a trust - Property gets transferred and there is complete change in the status - No provision in Societies Registration Act to change character of society to trust - Transaction in effect amounts to transfer of property and is chargeable to stamp duty as settlement. Held: Undisputedly the property belonged to the society registered under the Society Registration Act and these properties are sought to be transferred and vested in the newly created Trust. The society existed as separate legal entity, and the Instrument in question seeks to convert the society into a trust and transfer and vest all the properties in the trust. There is no provision in the Societies Registration Act to convert the properties of a society into a Trust Property. Under these circumstances, looking to the very terms of the Instrument in question, the document falls within the meaning of settlement as defined under Section 2(l)(q)(iii) of the Act and as such it is liable to duty under Article 48 of the Schedule to the Act. - The Chief Controlling Revenue Authority, Govt. of Karnataka v Dr. H. Narasimhaiah, ILR 1991 Kar. 1041

GIFT DEED AND EXEMPTION IN STAMP DUTY

Gift deed — Stamp duty chargeable to — Gift to mother — Since family in relation to donor for purpose of stamp duty does not include mother, concessional rate applicable where donee is member of family of donor, is not attracted — Stamp duty is chargeable on basis of market value of property transferred as gift — Non-inclusion of mother in definition of "family", held, is not discriminatory. Held: The ground of challenge is that the explanation of 'family' in Article 28(b) is violative of Article 14 on account of non-inclusion of father and mother. It is possible that in certain circumstances, logically mother, father and dependant brothers/sisters may be included in the definition of 'family'. But, it is also possible in a different set of circumstances, mother and father or siblings may not be considered as members of the family. When a person is married and has children, normally the spouse and children are alone considered as family, for several purposes. There is nothing unreasonable about it. Further, the question is not whether it is reasonable to include the parents, but whether their non-inclusion is unreasonable and arbitrary so as to render the explanation open to challenge on the ground of violation of Article 14. It is not possible to hold that when mother is not included in the definition, the definition of 'family' in the explanation becomes incomplete and violates Article 14 or that the explanation defining 'family' should be so interpreted as to include the mother. Equally baseless is the contention that because a gift from mother to son falls under Article 28(b), a gift from son to mother should also necessarily fall under Article 28(b). .... Article 28(b) will have to be read with the explanation, in a plain and normal manner. Only if the deed

falls squarely under Article 28(b), the concessional rate of stamp duty can be availed. If not, the deed will be governed by Article 28(a). — M.S. Narendm and Another n State of Karnataka and Another, 2001(5) Kar. L.J. 191A.

BENEFIT OF REDUCED STAMP DUTY CANNOT BE RESTRICTED TO STAMP DUTY PAYABLE UNDER SECTION 3 OF ACT, AND HAS TO BE EXTENDED TO ADDITIONAL STAMP DUTY PAYABLE UNDER SECTION 3-B OF ACTNotification dated 16-6-1999 reducing "total stamp duty payable under Act" on instruments of conveyance of immovable property purchased from Messrs Information Technology Park Limited, Bangalore, upto fifty per cent — Where reduction of stamp duty granted under notification is reduction in total stamp duty payable under Act in respect of such instruments, benefit of reduced stamp duty cannot be restricted to stamp duty payable under Section 3 of Act, and has to be extended to additional stamp duty payable under Section 3-B of Act — Notice demanding full payment of additional stamp duty, held, is not sustainable and is liable to be quashed. Held: The notification expressly speaks of the total stamp duty payable under the Act and with reference to the category of transactions referred to in the notification itself. When there is no dispute that the sale deeds in respect of which the demands have now been raised, are the types of transactions which are covered under the notification, the only other question is as to whether a distinction can be made with regard to the concession vis-a-vis levy of stamp duty and levy of additional stamp duty. The notification does not expressly mention either of stamp duty leviable under Section 3 or additional stamp duty leviable under Section 3-B of the Act. On the other hand, what all it says is that the total stamp duty payable in respect of the transactions the concession of 50% is extended. As the words used is "total stamp duty payable", obviously it should include the additional stamp duty levied and collected under Section 3-B of the Act. If that were not to be the case, then there was no occasion to use the words "total stamp duty payable". ... It cannot be said that extending of the notification dated 16-6-1999 to be applicable to levy of duty as well as additional stamp duty is in the nature of a liberal interpretation of the notification or amounts to enlarging the application of the notification. No such exercise is either necessary or indulged in, when the wordings of the notification itself is looked into. The notification itself achieves the core object of granting exemption upto 50% on even additional stamp duty payable and to the class of transactions referred therein. . . . The three transactions being clearly covered by the notification dated 16-6-1999 being of the nature of transactions referred to therein and also granting exemption upto 50% of the total stamp duty payable in respect of the transaction, the stand of the petitioner claiming exemption from levy of stamp duty even in respect of payment of additional stamp duty under Section 3-B of the Act is perfectly justified and in consonance with the notification. The demand raised calling upon the petitioners to pay the difference of duty over and above what it had paid, is not sustainable in law and accordingly these demand notices are liable to be quashed- — Tata Consultancy Services, Mumbai v State of Kamataka and Another, 2003(6) Kar. L.J. 540.

MODE OF CANCELLATION OF COURT FEE STAMP PAPERS

No particular mode is prescribed either under any statute or any rules framed under statute — Provision requiring cancellation would be duly complied with if evidence of cancellation is such that same sheet cannot be applied to any other instrument — Rejection of plaint on technical ground that party or his Counsel has not affixed his signature on each and every sheet, is legally untenable, when each and every sheet is cancelled by typing thereon cause title of suit. Held: The suit of the plaintiff is to recover a huge amount of Rs. 13,39,34,033.80 and he has also paid the requisite Court fee of Rs. 8,77,0007-. The preliminary objection of the Trial Court is that all the stamp papers have not been defaced by the plaintiff or by his Counsel by putting his signature. . . . When such Court fee stamp papers are produced, the purpose of defacing is to ensure that it is not used in any other case. In the present case neither the plaintiff nor the plaintiff's Counsels have signed the stamp papers, but it is clear that the cause title of the parties have been duly typed. Therefore, it satisfies the requirement of Section 13 of the Karnataka Stamp Act, 1957. . . . Even otherwise, on filing of the papers with the Court along with the stamp papers, the Court office puts the seal of the Court on all the stamp papers and will punch the stamps. Thereby, it also results in defacing of the stamp papers... . There is no other provision in the Civil Rules of Practice or under the High Court Rules describing the manner as to in what way the stamp papers have to be defaced. Therefore, if the requirement of Section 13 of the Karnataka Stamp Act is complied, it suffices the matter. Accordingly, the Trial Court is directed to register the case and proceed in accordance with law. — Shetty's Construction Company Private Limited, Hubli v Krishna Bhagya Jala Nigam Limited, Bangalore and Others, ILR 2004 Kar. 1467 :

POWER TO LEVY STAMP DUTY ON DOCUMENTS REGISTERED OUTSIDE THE STATE.The main contention urged in this case is that the treatment meted out to the Central Government employees in not putting them on par with the State Government employees in regard to payment of Stamp duty on the mortgage deeds to be executed in favour of the respective Governments on housing loans is opposed to principles of natural justice apart from offending the provisions of Article 14 of the Constitution of India ........The economic legislations should be viewed by the Courts with greater latitude and they cannot be struck down as invalid on the ground of crudities and inequities. In the instant case, the impugned notification came to be made keeping in view the financial position of the persons who are unequal in many respects. Therefore, the impugned notification having been based on reasonable classification, cannot be interfered with .... Section 19 of the Act entitles the State of Kaniataka to demand proper stamp duty from persons who have registered .their documents outside the State but the same are subsequently enforced within the State of Kaniataka and therefore the procedure initiated under Section 46-A of the Act, by the respondents is in consonance with the said provisions of the Act. - Erappa and Others v State of Karnataka and Others, 1991(2) Kar. L.J. 432B : ILR 1991 Kar. 3102.

PRODUCTION OF DOCUMENTS — DUTY OF COURT TO EXAMINE DOCUMENT

Duty of Court to examine document independently whether it is duly stamped or not, irrespective of whether objection against marking is raised or not — Once Court admits document in evidence even wrongly, such admission becomes final

and cannot be called in question thereafter on ground that document was not duly stamped. Held: A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility (with reference to Section 34 of Karnataka Stamp Act, or Section 35 of Indian Stamp Act and Section 49 of Registration Act) will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not/ irrespective of the fact whether an objection to its marking is raised or not. It should be borne in mind that once a document is admitted in evidence, it cannot be called in question thereafter on the ground that it was not duly stamped. Once the Court admits a document even wrongly, such admission becomes final and cannot be reopened. Hence, the need for diligence not only on the part of the opposite Counsel, but also on the part of the Court having regard to the statutory obligation under Section 33 of Karnataka Stamp Act. Procedure to be followed while considering admissibility of — If Court comes to conclusion that document is insufficiently stamped, Court should determine deficit Stamp duty and penalty payable and direct party to pay same and admit document after payment is made — If payment is not made, Court has to impound document and send same to District Registrar for having dealt with in accordance with law as per Section 37(2) of Karnataka Stamp Act.

A combined reading of Sections 33, 34, 35, 36, 37 and 41 of the Karnataka Stamp Act requires the following procedure to be adopted by a Court while considering the question of admissibility of a document with reference to the Stamp Act; (a) When a document comes up before the Court, it has to examine and determine whether it is properly stamped. When the other side objects to it, the Court should consider such objection and hear both sides; (b) After hearing, if the Court comes to the conclusion that the document has been duly stamped, it shall proceed to admit the document into evidence; (c) on the other hand, if the Court comes to the conclusion that the document is not stamped or insufficiently stamped, it shall pass an order holding that the document is not duly stamped and determine the Stamp duty/deficit stamp duty and penalty to be paid and fix a date to enable the party who produces the document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) If the party pays the duty and penalty the Court shall certify that proper amount of duty and penalty has been levied and record the name and address of the person paying the said duty and penalty and then admit the documr a in evidence as provided under Section 41(2); and the Court shall send an authenticated copy of the instrument to the District Registrar together with a Certificate and the amount collected as duty and penalty, as provided under Section 37(l)(e). If the party does not pay the duty and penalty, the Court will have to pass an order impounding the document and send the instrument in original, to the District Registrar for being dealt with in accordance with law as per Section 37(2) of the Karnataka Stamp Act.Document insufficiently stamped and document requiring registration but not registered — Provisions of both Acts bar such documents being received in

evidence — Regarding insufficiently stamped document, bar is absolute, subject to provision enabling Court to collect deficit Stamp duty and penalty — Regarding unregistered document bar is not so absolute, as unregistered instrument may be received as evidence of contract in suit for specific performance or as evidence of part performance of contract of sale of immovable property or as evidence of collateral transaction not required to be effected by registered instrument. Held: The difference between Section 34 of the Karnataka Stamp Act and Section 49 of the Registration Act should also be borne in mind. Section 34 says "no instrument chargeable with duty shall be admitted in evidence for any purpose, or shall be acted upon, registered or authenticated by. . . unless such instrument is duly stamped". Subject to the provision enabling the Court to collect the deficit Stamp duty, the bar under Section 34 is absolute and an instrument which is not duly stamped cannot be admitted at all in evidence for any purpose. On the other hand, Section 49 of the Registration Act which deals with the effect of non-registration of documents provides that if a document which is required to be registered under law is not registered, then such document shall not affect any immovable property comprised therein, nor can it confer any power to adopt, nor can it be received as evidence of any transaction affecting such property or conferring such power. But the proviso to Section 49 provides that an unregistered instrument may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of Section 53-A of Transfer of Property Act or as evidence of any collateral transaction not required to be effected' by registered instrument. For example, if a sale deed is executed on a white paper and is not stamped, it can neither be admitted in evidence nor be used for any purpose. But if a sale deed is executed on requisite stamp paper but is not registered and the executant refuses to admit registration, then the purchaser has a right to file a suit for specific performance, and rely on the sale deed, even though it was not registered, as evidence of the contract for sale. Thus, though both Section 34 of the Stamp Act (corresponding to Section 35 of the Indian Stamp Act) and Section 49 of the Registration Act, both bar the document being received as evidence, the bar is absolute under Stamp Act (unless deficit duty and penalty is paid) and the bar is not absolute under Registration Act.— K. Amarnath v Smt. Puttamma, 2000(4) Kar. L.J. 55.

INSUFFICIENTLY STAMPED DOCUMENTS PRODUCED -PROCEDURE.The petitioners filed claim petitions contending that they had acquired title to the property attached by means of sale deeds executed by defendant in their favour. The sale deeds were insufficiently stamped and petitioners applied praying that the documents be sent to the Deputy Commissioner under S. 37(2) of Stamp Act. The Munsiff dismissed the applications on the ground that when they are tendered in evidence, he will decide the question of insufficiency of stamp. In revision. Held, the Munsiff rightly dismissed the applications to send the documents to the Deputy Commissioner under S. 37(2). When a document comes before the Court for the purpose of being used in evidence, the first jurisdiction of determining the duty and penalty is that of the Court. It is only when that stage is crossed and the document is not tendered in evidence, then and then only does S. 37(2) come into play. Lakshminarayanachar v Narayan, (1969)2 Mys. L.J. 299.

SUB-REGISTRAR TO WHOM DEED IS PRESENTED FOR REGISTRATION, HAS NO POWER TO IMPOUND DEED FOR INSUFFICIENCY OF STAMP AND REFER MATTER TO DEPUTY COMMISSIONER FOR DETERMINING OF STAMP DUTY PAYABLEIf Sub-Registrar finds that stamp duty paid is insufficient, he can refuse to register deed till deficiency in stamp duty is made good, and it is also open to party to appeal against Sub-Registrar's order demanding payment of additional stamp duty — Impounding of document and reference made before registration of deed are without jurisdiction and, so also order passed by Deputy Commissioner on reference, Held: Unless the document is registered under the provisions of the Indian Registration Act, 1908, the Registering Authority, the Sub-Registrar has no authority to make reference of the document to Deputy Commissioner, who is notified by the Government in exercise of its power under Section 45-A of the Act, for the purpose of exercise of his power under this provision of the Act. Since the document was not registered, he had no jurisdiction to determine the sufficiency or otherwise of the stamp duty payable on the document to be registered before the Sub-Registrar under the provisions of the Act 1957 and the relevant rules. For the reasons stated supra, the Sub-Registrar should not have refused to register the document when it was presented for registration. As contemplated under the provisions of Section 35 of the Registration Act of 1908 when the Sub-Registrar has refused to register the document presented before him, he has to follow the procedure as provided under Section 71 of the Act, 1908 the order of reference of the unregistered document made by the Sub-Registrar to the Deputy Commissioner amounts to refusal to register the document for which the Sub-Registrar was statutorily obligated to assign his reasons for his refusal to register the document. Upon such order the petitioner has got a statutory remedy under Section 72 of the Act, 1908. Therefore, the action of Sub-Registrar in not registering the document and referring the document to the Deputy Commissioner for examining as to whether the stamp duty paid on the document is sufficient or not is bad in law. Therefore, the order passed by the Deputy Commissioner on the reference is not in conformity with either the provisions of the Karnataka Stamp Act or Indian Registration Act. Therefore, the impugned order passed by him is wholly unsustainable in law. . . . The plain reading of sub-sections (2) and (3) of Section 45-A of the Act, 1957, it makes very clear that the Sub-Registrar has got power to make reference of the conveyance deed after registration of the document under Section 45-A of the Act, 1957. Therefore, the Deputy Commissioner of the area who has been notified for the purpose of the provisions of the Karnataka Stamp Act, 1957 has to examine the document with regard to the value of the property which is the subject-matter of 'Conveyance' Deed, after registration of the document by the Registering Authority under the provisions of the Indian Registration Act, then only the second respondent can exercise his power under Section 45-A(2) and (3) of the Act of 1957. — Dr. Uslm Motwn Das v The Divisional Commissioner, Bangalore Division, Bangalore- and Others, 2001(3) Kar. LJ.463.

LEASE DEED – STAMP DUTY INSUFFICIENCYDocument styled, as lease not properly stamped produced during the course of eviction petition by the petitioner - Whether Trial Court was right in holding it as inadmissible evidence. Held: Proviso (a) to Section 34 of the Karnataka Stamp

Act, however, provides for a procedure to pay the stamp duty and the prescribed penalty, if a party requires the document to be admitted in evidence. That procedure is still available to the petitioner - Hanumanumul Baid v Ananthapadmanabha, ILR 1992 Kar. 1133.

INSTRUMENT NOT DULY STAMPED — NOT ADMISSIBLE IN EVIDENCE, NOT EVEN FOR COLLATERAL PURPOSES.Section 34 of the Act mandates, no document shall be admitted in evidence for any purpose, unless it is duly stamped. Section puts a complete embargo and bar against admissibility of such a document which is not stamped, or which is not duly stamped, and it cannot be made use of for any purpose. — Doddabasappa v Gurubasappa (Deceased) by LRs. and Others, 2001(4) Kar. L.J, 104A.

COURT SHOULD APPLY ITS MIND TO THE QUESTION OF ADMISSIBILITY EVEN IF THERE IS NO OBJECTIONNothing on record to show that Court applied its mind to the question of admissibility nor the act of making endorsement has been made — Hence question of admissibility of document of evidence kept open to be decided by Trial Court at the time of final decision. Held: There is nothing on record to show that the Court has applied its mind to the prior act of examining whether the document Ex. P-l is admissible in evidence. The second act namely marking the endorsement under Order 13, Rule 4(1), C.P.C. also has not been made admittedly. It is no doubt true that the defendants did not raise any objections at the time of marking the document in question as Ex. P-l. But I do not think it absolves the responsibility placed on the Court in examining the document for admissibility. The facts of the case disclose that according to the plaintiff himself Ex. P-l represented an agreement of sale, a completed contract whereas the defendants have contended that the document indicates only a proposal and is not a completed contract. It is neither necessary nor proper for this Court to express any opinion on this aspect as it may prejudice the case of either party before the Trial Court. But what is important to note is that the admissibility of the document Ex. P-l which is not stamped was a serious question to be considered by the Trial Court at the time of marking the document. There is nothing on record to show that the Trial Court had applied its mind consciously to the question whether the document was admissible or not. By no stretch of imagination could it be said in this case that the document has been admitted in evidence. The proper order that could be passed is to keep open the question of the admissibility of the document Ex. P-l leaving it to be decided by the Trial Court at the time of the final decision of the suit. - Narasamma and Another v Arjun M. Menda and Others, 1995(5) Kar. L.J. 574.

PALU-PATTI KARAR

Production of earlier Palu-patti Karar, not duly stamped and registered, only to prove as to when joint status stood severed - Held, Palu-patti Karar admissible in evidence; Order of Trial Court directing payment of duty and penalty on the document set aside. In this Court what has been contended is that once the Court

came to the conclusion, it was admissible in evidence for collateral purpose of only proving the severance of status and not evidence of the partition, the Court was not correct in asking the plaintiff to pay duty and penalty as if the document was not required to be stamped. Undoubtedly, under the Karnataka Stamp Act an instrument of partition is required to be duly stamped according to the provisions contained there, i.e., on the market value of the largest of the shares. But, that has already been done in the deed of partition executed in the year 1968 and duly registered in respect of the same properties pursuant to what was agreed in the instrument in question. Therefore, the learned Munsiff committed an error in coming to the conclusion that there can be two partition deeds in respect of the same properties by holding the instrument in question to be also a deed of partition. If parties have paid duty on the instrument of partition of 1968, that will be the document which will be effective being a registered document and the earlier palu-patti has no other value except as evidence of severance of Joint status, that is, the point of time to be reckoned for purpose of severance of status - Narayan Rao, M.S. v M.S. Shivarama, 1988(2) Kar. L.J. 330.

PALU-PATTI KARARDocuments not required to be registered — Document merely reciting properties which were assigned to respective brothers in previously concluded partition of joint Hindu family does not declare any right and hence there is no necessity of registering such document — Such document produced, not as suit document, but only for collateral purpose of evidencing possession of property, is admissible as evidence in suit for perpetual injunction.Document refers to the items of the properties which were given to the brothers. It is only a list of articles given to the respective brothers on 31-3-1976 under the heading 'division regarding family amenities and properties'. ... In this case, the document in question is not a suit document. It is only produced for collateral purposes to show that the respondent is in possession of the property. According to the parties, the partition had taken place in the year 1957. Document came^nto being only to show the items of the property allotted to the shares of each brother. Therefore, the learned Court below has come to the conclusion that it is nothing but a palupatti or memorandum of partition. .... The same was produced only to show severance of the coparcenary joint family n the same is indicating the list of properties allotted to each brother by virtue of earlier partition effected amongst them. Partition list which are mere records of previously completed partition between the parties can be admitted in evidence even though they are unregistered to prove the facts of partition..... Even if the document is not admissible in evidence because of the bar imposed by the provisions of Sections 17 and 49 of the Registration Act, still the party is not precluded from adducing oral evidence to show that a particular property has fallen to their share. — K.C. Thimma Reddy v K. Govinda Reddy, 2000(1) Kar. L.J. Sh. N. 36.

SALE AGREEMENT – POSSESSION DELIVERED- STAMP DEFICIT AND PENALTYAgreement to sell immovable property — Stamp duty payable on — Where possession of property is delivered pursuant to such agreement, stamp duty payable is same as duty payable in respect of conveyance on market value of property agreed to be sold — If such agreement is insufficiently stamped, same is inadmissible in evidence unless deficit stamp duty is paid along with penalty

which is ten times such deficit duty. Held: Article 5(e) of the Karnataka Stamp Act prescribes, that agreement if relating to sale of immovable property, wherein part performance of the contract, possession of the property is delivered or is agreed to be delivered without executing the conveyance, then, the stamp duty payable is the same as conveyance under Article 20 on the market value of the property. The explanation to Article 5(e) to (i) prescribes that where subsequently, conveyance is executed in pursuance of such agreement the stamp duty already paid shall be adjusted towards the total duty leviable on the conveyance. Thus, it is clear that where an agreement of sale under which the possession is delivered, it amounts to conveyance and hence, attracts stamp duty as conveyance on the market value of the property. In the instant case, the agreement entered into between the parties, which is a basic document for claiming the relief of specific performance and for injunction, clearly provides for sale of immovable property and it also recites that the possession has been delivered. Therefore, the document in question clearly falls within the scope of Article 5(e) of the Karnataka Stamp Act and its Explanation (II). If the Legislature thought that it would be appropriate to collect duty at the stage of the agreement itself, if it fulfills certain conditions instead of postponing collection of such duty till the completion of the transaction by execution of a conveyance deed in as much as all substantial conditions of a conveyance have already been fulfilled, such as an agreement if relating to sale of immovable property, where, in part performance possession of the property is delivered and what remains to be done is a mere formality of paying the balance and of execution of sale deed, it would be necessary to collect duty at a later stage itself though right, title and interest may not have passed as such. Still by reason of the fact that under the terms of the agreement there is an intention of sale and possession of the property has also been delivered, it is certainly open to the State to charge such instruments at a particular rate, which is same as a conveyance on the market value of the property, and that is exactly what has been done in the present case. Therefore, it cannot be said that the impugned order made by the Trial Court suffers from any such illegality or material irregularity so as to call for interference in revision. The document, which is insufficiently stamped, cannot be permitted to be used for collateral purpose in view of Section 34 of the Karnataka Stamp Act which clearly prescribes that no instrument chargeable with duty shall be admitted in evidence for any purpose. In the instant case, the proper stamp duty payable under the Karnataka Stamp Act being not paid and when the document was sought to be used in evidence, the Court below was justified in passing the impugned order which cannot be found fault with. — Jayalakshmi Reddy v Thippanna and Others, 2003(5) Kar. LJ. 263.

DETERMINATION OF STAMP DUTY AND PENALTY PAYABLEUnstamped instrument — Production of in evidence — Determination of stamp duty and penalty payable — Trial Court can determine same, and there is no need to make reference to Registrar of Stamps for determination of same. Held: There is no provision in Karnataka Stamp Act, 1957, which envisages a reference to the Registrar of Stamps for determining the duty payable on any instrument. The scheme of Section 34 of the Karnataka Stamp Act, 1957, also does not envisage any such reference being made before the document could be marked. The amount of duty payable on the sale deed (in the absence of any material to show that the property had been undervalued), is relatable to the consideration that was paid and received by the parties to the transaction. The penalty amount leviable on the instrument also didn't require or call for any enquiry which could possibly call for a reference to the Registrar. The Court below was therefore justified in

holding that the duty payable on the instrument as also the penalty had to be calculated by the Court and not by the Registrar. — Mahadeva v The Commissioner, Mysore City Corporation and Others, 2003(1) Kar. L.J. 518B.

DETERMINATION OF STAMP DUTY AND PENALTY PAYABLEJurisdiction of Court — When a document chargeable to duty and produced before Court for purpose of being used in evidence is either not stamped at all or insufficiently stamped — Court to determine duty and penalty and impose it after impounding — Security deposit in lease — Duty payable comes under Section 30(c) of the Act covered by fine, premium or money advanced. Held: When a document comes before the Court for the purpose of being used in evidence, the first jurisdiction of determining the duty and penalty is that of the Court. Section 34 of Karnataka Stamp Act prohibits the reception in evidence of documents which are insufficiently stamped. But a proviso is added thereto according to which the same is chargeable and the person having authority to receive evidence may impose such duty together with the penalty as specified therein. The exercise of jurisdiction under the proviso to Section 34 arises when a document is actually tendered in evidence but it might have been produced much earlier by one or other of the parties to the litigation. When a document chargeable to duty and produced into Court in connection with a proceeding before it is found by that Court to be either not stamped at all or insufficiently stamped it is bound to impound it. Idea of impounding it is to enforce collection of duty or deficient duty together with penalty. When a document comes before the Court for the purpose of being used in evidence, the first jurisdiction of determining the duty and penalty is that of the Court. It is only when that stage has crossed and the document is not tendered in evidence that it ceases to be a document impounded by the Court. In cases where party has produced certain document and expressly makes his intention clear that he would not rely upon that document in support of his causes pleaded, then that would amount to his not producing for purposes of placing reliance on that document by way of legal evidence then the question of Court exercising its powers under Section 34 of the Karnataka Stamp Act would not arise and the Court has nothing more to do with it as a Court but as impounding authority has to send the same to the Deputy Commissioner under sub-section (2) of Section 37, since Stamp Act is a fiscal legislation and its object is to collect revenue. The only question that requires consideration is whether the security deposit of Rs. 7,500/-comes under ambit of Section 30(c) of the Karnataka Stamp Act for purposes of payment of additional stamp duty than the one that is already paid on the document. Whether payment of a sum of Rs. 7,500/- mentioned in Clause (4) of Part 11 as security deposit represents nature of premium or money advanced in addition to rent reserved for purposes of payment of stamp duty as a conveyance under Section 30(c) of the Karnataka Stamp Act. Premium is defined in Section 105 of Transfer of Property Act, 1882 as the price paid or promised for a lease. It is to be noted that both Clauses (b) and (c) of Article 30 use the words fine, premium or money advanced. The duty that is payable on the document in question comes squarely under the ambit of Article 30(c) of the Karnataka Stamp Act, 1957. - Leelamma Samuel v T.M. Francis, 1994(4) Kar. LJ. 573.

STAMP OBJECTION

Document insufficiently stamped admitted in evidence — Such document cannot be rejected in evidence when law provides for recovery of deficit stamp duty with penalty and same has in fact been recovered — Stamp Act is a fiscal measure enacted to secure revenue for State and not enacted to arm litigant with weapon of technicality to meet case of his opponent — Court is not required to consider admissibility of document in evidence from stand point of stamp law — Once Court, rightly or wrongly, admits document in evidence, admission cannot be called in question at any stage of suit or proceeding on ground that document is insufficiently stamped. Held.—Instruments cannot be rejected on the ground that they are inadmissible on the ground of being not properly stamped when the requisite duty and penalty is recoverable and recovered. .... .In the instant case, the Karnataka Stamp Act, or any enactment providing for recovery of stamp duty on specified instruments, is a fiscal enactment intended to secure to the State specified stamp duty. Sections 34 and 35 of the Karnataka Stamp Act is intended to effectuate the intention of the legislature by barring the admission of document unless the requisite stamp duty is paid along with the stipulated penalty. When once a document is admitted in evidence rightly or wrongly, Section 35 of the Karnataka Stamp Act bars any objection to the admissibility of the document at a later stage in the same proceedings or otherwise. The only exception is Section 58 of the Karnataka Stamp Act. In the instant case Section 58 of the Karnataka Stamp Act is inapplicable. When once a document has been admitted, rightly or wrongly, in evidence, it is not open to a party in any other proceedings to contest the admissibility of the document on the ground that the document is not properly stamped in accordance with law. Sections 34 and 35 come into operation when for the first time a document is tendered in evidence and not on subsequent occasions when it is already tendered as evidence. In the instant case, the document was admittedly marked in the litigation between the same parties and the same is now sought to be tendered as evidence in this case. The question of admissibility of the document on account of being improperly stamped cannot now be raised by the defence in the suit. .... .The Trial Judge committed a jurisdictional error in rejecting the document in question. — Sakamma v Pavadi Gowda and Others, 1999(2) Kar. LJ. 650.

STAMP OBJECTIONDocument admitted in evidence — Determination of question as to sufficiency of stamp duty paid thereon — Court postponing determination of question at later stage while admitting document in evidence, it amounts to admission of document subject to objection — It is obligatory to decide question before disposing of suit finally — Immunity from objection contemplated in Section 35, is not attracted to documents admitted subject to objection. Held: In the present case, the Court below has postponed the determination of question of stamp duty. At the time when the document was produced and filed at the stage of evidence objection was raised, but the Court below postponed it for decision later on. So, it had not decided the question of admissibility of the document for want of stamp duty. At that stage, it had only been taken on record for the purpose of avoiding delay, subject to determination of the question, later on. May it be an irregularity, may it be for purpose of avoiding any delay in course of recording of evidence and interruption. There may be some irregularity, but it did not bar the jurisdiction of the Court to determine that question. A document which has been taken on record subject to objections, clearly indicates that the question of admissibility is to be

later on decided, and the same has not been decided at the stage when it was filed, section makes it obligatory to decide that question. .... The taking of document subject to objections clearly indicated in the present case Court has not applied its mind, and has not determined the question of admissibility of document to attract Section 35 of the Karnataka Stamp Act. — Doddabasappa v Gurubasappa (Deceased) by LRs. and Others, 2001(4) Kar. LJ. 104A.

STAMP OBJECTION

Document tendered in evidence — Admissibility questioned by party opposite on ground that document was not duly stamped — Court, in order to ensure uninterrupted recording of evidence, marking it as exhibit pending adjudication of objection — Such marking of document tentatively, held, is not conclusive of its admissibility and does not give it immunity from being questioned — Order subsequently passed by Trial Court holding that document was not duly stamped and directing party tendering same to pay deficit stamp duty with penalty — Order, held, does not call for interference in revision.Held: In the present case mere marking of a document as exhibit is not conclusive for the purpose of giving it any immunity from questioning under Section 35 of the Act, because, admittedly the document was not admitted after judicial application of mind and the marking was only for the sake of convenience and the issue of admissibility was postponed to facilitate uninterrupted recording of evidence. . . In this view of the matter, direction of the Trial Court to the plaintiffs to pay deficit duty with penalty as provided under clause (a) of the proviso to Section 34 of the Act cannot be said to be suffering from any error requiring interference by this Court. — Riyaz Khan and Others v Modi Mohammed Ismail and Others, 2002(3) Kar. LJ. 551A.

STAMP OBJECTION

Unregistered and unstamped sale deed — Production of, in evidence — Objection to — Direction issued by Court, while judicially determining objection, to party relying upon such instrument to pay stamp duty and penalty before admitting it in evidence to prove nature of his possession of property — Provisions of Stamp Act make no exception in favour of document sought to be admitted in evidence even for proving collateral transaction, and prescribe condition subject to which such document can be admitted in evidence — Order of Trial Court, held, needs no interference. Held: Even when a document is inadmissible for want of registration, the same is admissible to show the character of the possession of the person in whose favour it is executed. There is therefore no gainsaid that ihe unregistered sale deed relied upon by the petitioner could for the limited purpose of proving the nature of his possession be let into evidence notwithstanding the fact that the deed was compulsorily registrable under Section 17, but had not been so registered. . . . That a document is being admitted for a collateral purpose does not however necessarily mean that it can be let in for that purpose even when it is not duly stamped. Section 34 of the Karnataka Stamp Act, 1957, inter alia provides that no instrument which is chargeable to duty shall be admissible in evidence for any purpose or shall be acted upon, registered or authenticated by any person or by any public officer unless such instrument is duly stamped. The expression 'for any purpose' used in Section 34 of the Karnataka Stamp Act/1957, is wide enough to include use of any document for a collateral purpose or

transaction. ... It cannot be accepted that just because an unregistered document can be admitted in evidence for proving a collateral transaction, any such use would entitle the document to be marked as an exhibit de hors the provisions of Section 34 of the Karnataka Stamp Act, 1957. The provisions of Section 49 of the Act remain limited to the consequences of no n-registration of compulsorily registrable documents. The said provision does not deal with or stipulate the consequence that follow if an instrument sought to be proved is not duly stamped. That part is provided for separately by provisions of Section 34 of the Karnataka Stamp Act, 1957, which does not make any exception in favour of documents sought to be admitted in evidence for proving a collateral transaction. So long as an instrument is chargeable with duty, the provisions of Section 34 would render it inadmissible in evidence for any purpose unless the same is duly stamped. . . . The proviso to Section 34 prescribes the conditions subject to which a document which is not duly stamped can be admitted in evidence. It inter alia provides for payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, the amount which is required to make up such duty together with the prescribed penalty. There is no conflict between what is permitted by the proviso to Section 49 of the Registration Act on the one hand and Section 34 of the Karnataka Stamp Act, 1957, on the other. The demand of duty and penalty in terms of the proviso to Section 34 before the document could be marked in token of its having been admitted in evidence did not therefore suffer from any error of law to warrant interference. Whenever an objection regarding the admissibility of an instrument on the ground of its being unstamped or insufficiently stamped is raised, the Court is required to determine the objection before proceeding any further, unlike other cases where an objection to the admissibility of a document on any other ground may be examined at a later stage and the document tentatively marked to avoid delay in recording of the evidence. — Mahadeva v The Commissioner, Mysore City Corporation and Others, 2003(1) Kar. LJ. 518A.

STAMP OBJECTION

Sections 34 to 37 - Held, have no relevance to enquiry under Section 45A of Act - Scope explained.Section 34 of the Act has no relevance to the action taken in the present case under Section 45A. That section comes into operation when a person produces a registered document which even, according to the nature of transaction and the valuation of the property as discernible from the document itself is insufficiently stamped. According to the provision, if a document which is insufficiently stamped is produced before a Court, Tribunal or Authority, it would be in-admissible evidence but could be admitted in evidence, if the party concerned pays the penalty at the rate provided in the proviso. Similarly Section 37 provides as to how instruments impounded should be dealt with. That also has no relevance for this case. Pushpa, M. v State of Karnalaka, 1987(1) Kar. L.J. 77.

UNSTAMPED AGREEMENT TO SELLSuit for specific performance filed on basis of — Such instrument required to be stamped under law but not stamped is not admissible in evidence for any purpose, unless stamp duty and penalty are paid — Expression "any purpose" includes

issue of interlocutory order of injunction to restrain other party from alienating suit property during pendency of suit.Held: Section 34 of the Karnataka Stamp Act, 1957, inter alia provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority lo receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Proviso to Section 34 makes such documents admissible in evidence upon payment of penalty. The expression "for any purpose" appearing in the section is wide enough to include within its amplitude use of the document for the purposes of issue or refusal of injunctions prayed for in a suit for specific performance or similar other reliefs. The document in question has admittedly been produced by the plaintiffs-appellants before the Court below. It has come to the notice of the said Court that the document in question is not duly stamped. The Court would therefore be entitled to impound the same in exercise of its power under Section 33 of the Act. Neither Section 33 nor Section 34 of the Act makes an exception to the general rule or make unstamped or under-stamped documents admissible for the purposes of issuing interlocutory orders. . . In that view, therefore, the Court below was justified in insisting upon the payment of the stamp duty and the penalty on the agreement to sell before it could issue an injunction in raVour of the appellants on that basis. Instead of doing so, the Court below appears to have taken an indulgent view by which it has issued an injunction but made its continuance subject to the payment of the stamp duty and penalty on the same by the appellants. The error committed by the Court below is thus for the benefit of the appellants. The Court may well have been justified in ignoring the document so long as it was not properly stamped and the penalty on the same not paid. — KB. Jayaram and Another v Navineethamma and Others, 2003(5) Kar. LJ. 225.

UNSTAMPED AGREEMENT TO LEASELease deed — Requirements of — Once terms of lease are reduced to writing, instrument requires to be stamped and also requires registration.Held: For the purpose of Stamp duty, it makes no difference whether the deed is a deed of lease or agreement to lease. Both require the same Stamp duty. Once the terms of a lease are reduced to writing, the instrument requires to be stamped as per Article 30 and requires registration under Section 107 of the Transfer of Property Act. Even Agreements/Deeds of lease which do not provide for payment of any rent, but merely provide for payment of a premium which is non-refundable or a deposit which is refundable at the end of the lease, are liable to Stamp duty, the duty being at a rate equivalent to a conveyance on the value of such premium or deposit. Thus the deed dated 9-12-1984 which is a lease agreement was liable to a Stamp duty of Rs. 1,000/- under Article 30(b). The Stamp duty paid is only Rs. 5/-. The deficit Stamp duty is Rs. 995/-. Having regard to Section 34, if the respondent wanted to overcome the bar against admissibility under the Stamp Act, he has to pay Rs. 995/-as deficit Stamp duty and Rs. 9,950/- being ten times the deficit duty as penalty, in all Rs. 10,945/-. K Amarnath v Smt. Puttamma, 2000(4) Kar. LJ. 55F.

COURT SHOULD APPLY ITS MIND ABOUT ADMISSIBILITY OF DOCUMENTProper procedure to be followed by Courts enumerated.Held: Marking of a document is a ministerial act whereas, admitting a document in evidence is a

judicial act. Before a document is let in evidence, there should be a judicial determination of question whether it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not. ..... Even if in the affidavit filed by way of examination-in-chief, the defendant is referring to the document on which he relies on and has given an exhibit number to the said document, the same has to be ignored by the Court and the witness should be called upon to enter the witness-box and if he wants to rely on the said documents, to tender the said documents in evidence, before the Court. .... The proper procedure to be followed by the Courts after the amendment of the Code of Civil Procedure would be as under, (a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise; (b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist that the witness whose affidavit is sought to be filed enters the witness-box, takes oath and thereafter he/she shall hand over the affidavit containing his/her examination-in-chief to the Court. In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowing such affidavit; (c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by the opposite party; (d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and there if the objection relates to insufficiency of stamp duty; (e) If the Court decides to admit the document, then it shall follow the procedure prescribed under Order 13, Rule 4(1) of the CPC and mark the document. — Krishna v Sanjeev, 2003(7) Kar. LJ. 38 : ILR 2003 Kar. 3716.

SUB-REGISTRAR HAS IMPOUNDED THE DOCUMENTStamp duty — Reference of document for determination of — Deputy Commissioner to whom impounded document was sent, has to return same to impounding officer after he has dealt with same — Reference was not valid and legal for non-compliance with procedure prescribed. Held: The Sub-Registrar has impounded the document presented for registration under Section 33 of the Act and referred to the 2nd respondent under Section 37(2) of the Act. The 2nd respondent did not follow the procedure prescribed under sub-section (1)of Section 39 of the Act but referred the document for determination under Section 53 of the Act to first respondent. Since the document falls under Article 40- B (b) of the Act for the purpose of payment of stamp duty, it was not at all a matter for the Sub-Registrar to make the reference under Section 37(2) of the Act. Therefore, the reference made was not legal and valid. In fact, reference of the document was wholly unwarranted. — Y.C. Susheela Devi and Others v State of Karnataka and Others, 2002(3) Kar. L.J. 413B.

DEPUTY COMMISSIONER HAS NO JURISDICTION TO REVIEW HIS CERTIFICATION.Instrument presented for registration, impounded and sent to Deputy Commissioner on opinion that instrument is not duly stamped — Deputy

Commissioner, on coming to opinion that instrument is not required to be stamped, returning instrument with his certification to that effect duly endorsed on instrument — Once such certification is made by Deputy Commissioner, same is final subject only to any order that may be made in reference or revision, and Deputy Commissioner has no jurisdiction to review his certification. Held: The certification made under Section 39(l)(a) shall be conclusive or final for the purpose of the Act subject to any orders that may be made under Chapter VI of the Act. In other words, the certification made under Section 39(1 )(a) cannot be reviewed under any of the provisions of the Act except under Chapter VI of the Act. In this case, the certification made by the Deputy Commissioner under Section 39(l)(a) was reviewed by himself which is not permissible in law as it does not fall within the ambit of Chapter VI of the Act. The power of the Deputy Commissioner to review or redetermine the issue already decided by him under Section 39(1 )(a) of the Act cannot be traced to any of the provisions of Chapter VI of the Act to sustain his order dated 20-6-2001. None of the provisions of Chapter VI of the Act confer power on the Deputy Commissioner to review the certification made by him under Section 39(l)(a) of the Act. Therefore, the impugned order of the Deputy Commissioner dated 20-6-2001 is clearly without authority of law as it cannot be sustained by relying on any of the provisions of Chapter VI of the Act. ..... In view of the above, the order dated 20-6-2001 passed by the Deputy Commissioner and the order of the Karnataka Appellate Tribunal dated 4-7-2002 are liable to be set aside and are accordingly set aside. — K.B. Nagendra and Another v State of Karnataka and Others, ILR 2005 Kar. 2105.

MARKET-VALUE

Guidelines issued regarding the general market-value in the area - Validity.There is nothing like a general market value of immovable properties in a city or a locality and the same cannot be pre-determined on any notional or hypothetical considerations and the market value of the particular property has necessarily to be fixed on a particular date with due regard to the factors enumerated in the statute. The general market value fixed by the Deputy Commissioner which is not authorised by Section 45-A of the Act or the Rules and in derogation of them, unnecessarily restricting the power of the Registering Officers as also his own determination to be made as and when a case arises before him, is without jurisdiction and illegal. When there is under-valuation which necessarily results in under payment of stamp duty, Section 45A empowers the Registrar to make a reference to the Deputy Commissioner, who is empowered to initiate proceedings, determine the proper valuation and recover the difference of stamp duty payable thereon under the Act. Kulkarni, M.G. and Others v State of Karnataka and Others, ILR1985 Kar. 2152.

UNDER VALUATION

Instrument of conveyance - Under valuation - Reference, when and how made - Procedure stated - Order of Reference to contain reasons - Order of Reference

without setting out reasons invalidates the reference - Explained - The language of Section 45A is very clear. The condition precedent for making a reference is, there must be reasons for the Sub-Registrar to believe that the market value of the property has not been truly set out in the document presented for registration. From this it follows that the reasons must be recorded. However brief it may be, it is the duty of the Sub-Registrar to record reasons for his belief that the true market value has not been set out in the document and thereafter refer the matter to the Deputy Commissioner for adjudicating the real market value of the property under sub-section (2) of Section 45A of the Act. The Sub-Registrar cannot simply record the market value of the property according to him in a sheet and send the documents to the Deputy Commissioner. The documents must be sent as enclosure to the order of reference. It is also open to the Sub-Registrar to make an inquiry as contemplated in Rule 3 ol the Karnataka Stamp (Prevention of Under Valuation of Instruments) Rules, 1977. This Rule also supports the view that an order of reference must contain reasons and the documents should be sent along with the reasons recorded by the Sub-Registrar. As this procedure has not been followed, it should be held that there is no valid reference at all. — Sanjay Kumar v The Sub-registrar and Another, 1989(2) Kar. LJ. 7.

MARKET VALUE - PROVISIONAL ORDER – FINAL ORDER

It is open to party to file objections against provisional order, and it is only after considering objections can final order be passed by Authority — Remedy of appeal is also available to party, if aggrieved by final order — Writ petition against provisional order, held, not maintainable. Held: The order under challenge is only a provisional order and not a final order. The petitioner can therefore file its objections to the provisional order and only after considering the objections, final order.will be passed by the respondent. Petitioner, if aggrieved by the final order, can file an appeal. —Stamp duty payable on deed of sale of — Sale deed executed by Karnataka Industrial Areas Development Board in respect of industrial site allotted on lease-cum-sale basis in 1985, more than decade ago — Stamp duty is payable on market value of industrial site on date of execution of sale deed and not on sale consideration mentioned in sale deed — Concession of paying stamp duty on consideration mentioned in sale deed and not on market value on date of sale, which is available in respect of sale deeds executed by statutory bodies like BDA, KHB, etc., has not been extended to sale deed executed by KIADB — Proceedings initiated to ascertain market value of industrial site on date of sale effected by KIADB, held, is not without jurisdiction. Held: The concession extended to deeds of conveyance executed by BDA, KHB and House Building Co-operative Societies and other Bodies under the proviso to Article 20 of the Schedule to the Act (that is payment of stamp duty only on the consideration mentioned in the deed of sale and not on the market value on the date of sale) has not been extended to sale deeds executed by KIADB; therefore proceedings regarding undervaluation can be initiated in regard to sale deeds executed by KIADB; and the fact that the price mentioned in such deeds of conveyance is the true and correct price paid by the purchaser, has no relevance to the determination of market value on the date of sale, which is the criterion for

payment of stamp duty on deed of conveyance. 'Sale price' or 'consideration for the sale' ceased to be the basis for payment of stamp duty in the case of conveyance. In its place, the 'market value' of the property on the date of sale became the basis for calculating the stamp duty payable on conveyance in view of the Amendment to Article 20 by the Karnataka Stamp (Amendment) Act, 1975. Therefore proceedings initiated under Section 45-A of the Act in regard to a sale deed executed by KIADB are not without jurisdiction. M/s. Pals Industries Limited, Bangalore v The District Registrar (Detection of Undervaluation of Stamps), Bangalore, 2000(3) Kar. L.J. 48C

APPELLATE POWER

Section 45-A is amended and appellate power of District Judge withdrawn and invested in Divisional Commissioner — After abolition of post of Divisional Commissioner power invested in Deputy Inspector General of Stamps — Orders passed by Deputy Commissioner is appealable only with Deputy Inspector General Stamps — Orders passed by District Judge quashed. Held: Although the provision for appeal against the provisional order is repealed, still the Appellate Authority under the Act will have necessary incidental jurisdiction to entertain the appeal against the interim orders and grant necessary relief. .... The original Section 45-A provides appeal to the District Judge from the order of the Deputy Commissioner. Section 45-A is amended and the appellate power of the District Judge is withdrawn and came to be invested in the Divisional Commissioner S. Kumara Bangarappa v The Special Deputy Commissioner of Detection of Undervaluation of 'Stamps-, Bangalore and Another, 2004(7) Kar. LJ. 87 : ILR 2004 Kar. Sh. N. 6 at p. 7.

SUB-REGISTRAR HAS NO POWER TO IMPOUND DOCUMENT AND POSTPONE REGISTRATION ON GROUND THAT PROPERTY COVERED BY DOCUMENT IS UNDERVALUED.

Registration of document — Power of Sub-Registrar to postpone or keep pending — If stamp duty has been paid on consideration shown in document, Sub-Registrar has no power to impound document and postpone registration on ground that property covered by document is undervalued. Held: Sub- Registrar had no power to impound (or postpone registration of) the document on the ground that property covered by the document was undervalued. If stamp duty had been paid on the consideration shown in the document, the Sub-Registrar had no authority to go beyond the recitals and contents of the document to hold that the document was undervalued or that document was not duly stamped. In other words, Sub-Registrar can neither keep the document pending nor impound it on the ground that valuation shown was incorrect, but could only take action under Sections 28 and 61 of the Karnataka Stamp Act. Even after Section 45-A of the Act came into effect, the registration of the document could not be kept pending on the ground of undervaluation. It therefore follows that the Sub-Registrar could not have kept the sale deeds dated 20-10-1982 and 4-3-1982 pending on the ground that the properties sold thereunder were undervalued. Therefore, the notices dated 30-11-1983 holding that documents were undervalued and demanding deficit stamp duty as a condition precedent for registration, were illegal and without jurisdiction. Therefore, when the said notices dated 30-11-1983 were quashed on the ground

that the Sub- Registrar had no authority to keep the registration of the sale deeds pending, the Sub-Registrar had no alternative but to register the documents. — Veerabhadrappa and Another v Jagadishgouda and Others, 2002(5) Kar. L.J. 55A

RETENTION OF DOCUMENT BY ADJUDICATING AUTHORITY FOR INDEFINITE PERIODAn indefinite retention of the document without the adjudicating authority taking a decision can be justified in the absence of a specific provision in the Act or the rules empowering the adjudicating authority to retain the document. However it cannot be disputed that for the purpose of adjudication the competent authority will have to look into the original document itself. Nonetheless it does not mean that such document can be retained by the adjudicating authority for an indefinite period. In the circumstances if a reasonable request is made, the document may be returned to the holder of the document upon the party undertaking to produce the same if he is called upon to do so during the adjudicating proceeding. In that view of the matter, when an application is made in this behalf it appears to be just and proper to return the document to the party within a reasonable time, which may ordinarily not exceed six to eight weeks, on such reasonable terms and conditions as the adjudicating authority may consider proper. Similarly when the Sub-Registrar after registering the document has reason to believe that the property is undervalued, he is bound to make a reference to the Deputy Commissioner within such reasonable time. In that view of the matter/ it is open for the Court in the exercise of its discretionary jurisdiction under Article 226 of the Constitution to direct return of the document on terms pending adjudication under Section 45-A of the Act. -M.K. Kuruvilla v District Registrar, Bangalore and Another, 1994(4) Kar. LJ. 657 (DB).

DISTRICT REGISTRAR IS QUASI-JUDICIAL AUTHORITY CANNOT DESCRIBE HIMSELF AS COURT.It is rather surprising, that a quasi-judicial functionary like the District Registrar for Undervaluation of properties should describe himself as a Court, as is indicated in the notice. The authority is one which is required to investigate the instances of undervaluation, determine the proper value of the properties, so that loss of revenue to the State is prevented and proper stamp duty is realized from the persons presenting documents for registration. . . Unless there is an enabling provision or statutory recognition, describing such a functionary as a Court, the authorities cannot describe themselves as Courts. The authority is, at best, a quasi-judicial functionary functioning as an administrative authority and incidentally required to pass orders inclusive of determining or affecting the civil rights of parties. The authorities are required to comply with the principles of natural justice while so functioning, giving a fair opportunity of hearing to the affected and apprise the concerned persons the date of such hearing, look into the representations or submissions made on behalf of the concerned persons and then pass a reasoned order. In the instant case, the impugned orders which are in furtherance of notices dated 16-8-2002 and 28-8-2002 do not indicate as to on which date such hearing had been fixed. The notices had also not fixed any date for the appearance of the parties before the so-called Court. While the orders indicate that a notice dated 28-8-2002 had also been issued which is also not

responded by the petitioner, there is no reason as to why the concerned authorities should have issued yet another notice dated 28-8-2002 even before the period of 21 days from the date of issue of the notice dated 16-8-2002 had not expired... It is a matter of utmost regret that a public authority who deals with civil rights of parties, do not function in a transparent and fair manner. This Court cannot help but take note of the fact that the office of Sub-Registrar and Office of the District Registrar for determination of undervaluation are notorious for their nefarious activities and have been subject-matter of adverse scrutiny and comment by vigilant institutions like the Lokayuktha for corruption and bribary charges. . . Procedure which is not transparent, which does not call upon the parties to appear on a particular date, for giving representation or producing documents, a procedure where parties are kept in dark as to what may happen in the future, this Court cannot help, but observe is an arbitrary procedure vitiating the proceeding. Perhaps a fair and transparent procedure is not evolved by the authorities concerned only for extraneous reasons and for pressurizing the helpless citizens who are involved in such litigation... It is but necessary that any notice issued by the 1st respondent should indicate the date of hearing of the case that is fixed for the appearance of parties and the parties should be apprised of that date. . . Under the circumstances, the impugned orders are clearly unsustainable, being not only arbitrary, but also for violating the principles of natural justice. — Smt. B. Razia Rnzak v The District Registrar, Prevention of Undervaluation of the Instruments, Bangalore and Another, ILR 2003 Kar. 3233 : AIR 2003 Kant. 486.

KIADB LANDS

Conveyance of an industrial site by the Karnataka Industrial Area Development Board — Cost of allotment fixed twelve years ago mentioned as consideration — Sale deed registered not returned — Reference made to the Deputy Commissioner for Detection of Undervaluation of Stamps for determination of the market value of the site and the proper duty payable — Whether the Deputy Commissioner for Detection of Undervaluation of Stamps has jurisdiction to initiate proceedings for determination of market value in regard to a deeds of conveyance executed by a statutory authority. Stamp duty is payable on the market value of the property on the date of execution of sale deed and' not on the consideration mentioned in the instrument of conveyance. The concession of payment of stamp duty only on the consideration mentioned in the deed of conveyance instead of on market value is available only in regard to the deeds of conveyance executed by some statutory authorities like BDA, KHB,etc.r specifically mentioned in Article 20 of the Schedule. As the KIADB, though a statutory authority, is not so mentioned in the Article, the concession is not available in regard to deeds of conveyance executed by this authority. Even though the price mentioned in the deed of conveyance executed by the KIADB is true and correct consideration for the conveyance, it will not be the market price as on the date of sale. The Court can take judicial notice of the fact that there was a steady and considerable rise in the prices of real estate and the price fixed in the year 1980, when the site was allotted to the petitioner, could not obviously be the market value in the year 1992 when the sale

deed was executed. Second respondent did not act without jurisdiction in making a reference under Section 45-A of the Act, and the notice issued by the Third respondent initiating a proceeding for determination of the market value is valid. - Safeguard Packaging Systems Private Limited v State of Karnataka and Others, 1995(2) Kar. L.J. 442.

MARKET VALUE – REDITERMINATION

Market value of property for purpose of registration of deed of conveyance — Redetermination of — In case of dispute, authority is statutorily required to hold enquiry and determine market value by reasoned order reflecting authority's application of mind to relevant materials — Market value of vacant sites in any locality as fixed and notified by State Government is for guidance of authority and same cannot be adopted by authority without holding independent enquiry where correctness of market value so fixed is disputed in individual case — Order determining market value, passed without holding enquiry, held, is violative, not only of statutory provisions but also of principles of natural justice, and is unsustainable in law. The District Registrar and the Divisional Commissioner have determined the market value only on the basis of a Government guideline "fixing the value of all vacant sites situate at Rajmahal Vilas Extension, II Stage, Bangalore, where the property in question is situate at Rs. 893/- per sq. ft." without holding any enquiry for correctly arriving at the market value. . . A detailed procedure is prescribed under the Karnataka Stamp Act, 1957 and the rules framed under the Act for determining the proper market value for purposes of payment of proper stamp duty. . . After completing the enquiry as required under Rules 4 and 5, the District Registrar/Deputy Commissioner is obliged in law to pass a reasoned order, reflecting his application of mind to the relevant material as per Rule 7. . . Thus, the Enquiring Authority under Section 45-A(2) of the Act, is statutorily obliged to hold a detail enquiry taking into consideration several factors like the exact location of the site in question prevailing market value, its special advantages etc., and pass a considered order giving reasons and if it fails to do so, the Appellate Authority is obliged to correct the same in exercise of its appellate powers otherwise providing of statutory appeals would become meaningless. The Registrar has not conducted the enquiry as required under Rules 4 and 5 nor his order reflects any application of mind. . . The Appellate Authority also has abdicated its appellate power of examining the correctness of the order under appeal with reference to statutory requirements and the general principles of law. Both the orders of the Appellate Authority and the Registrar are clearly unsustainable and accordingly quashed. — R. Umaprasad v Deputy Commissioner for Detection of Undervaluation of Stamps, Bangalore and Others, 2004(2) Kar. L.J. 216.

DC HAS NO POWER TO REVIEW, RECALL HIS ORDER

Commissioner seeking to review and recall his own order of determination of — Deputy Commissioner, held, has no such power conferred on him by statute — Once Deputy Commissioner holds enquiry and passes order determining market value, in response to reference made by registering officer, he cannot review his order either suo motu or on application made by party affected by order, except

for purpose of rectifying mistake apparent from record — Show-cause notice issued by Deputy Commissioner proposing to hold enquiry de novo in order to redetermine market value already determined, under guise of exercising his power of review is without jurisdiction and liable to be quashed. Once Deputy Commissioner determines the proper market value of the property after holding an enquiry, the Act has not made any provision for reviewing or recalling the said order except filing an appeal under Section 45-A(5) of the Act or an application under Section 67-A(2) of the Act. .... There is no inherent power to review. A power to review must be conferred specifically by the statute and when conferred should be limited to the circumstances stated in the "power conferring section" and not beyond. So understood, the power to review his own order should be limited to the two situations referred to in Section 67-A(2) of the Act. But, what the Deputy Commissioner now proposes to do vide his show-cause notice is to conduct a de novo enquiry under the guise of exercising his power of review which is impermissible in law. — Shantesh Gureddi v State of Karnataka and Another, 2003(6) Kar. L.J. 149A.

PARTNERSHIP DISSOLUTION AND PARTITION

The purchasers under the sale deed are the eighteen partners and two minors admitted to the benefits of the firm. The property has been purchased for and on behalf of the firm. The purchase is by the partnership firm of Gowri Enterprises and not by the said twenty persons in their individual capacity. .... In fact the Dissolution Deed clearly recites that the said property was the property of the firm. Therefore, on dissolution different portions of the property could be allotted to the 18 partners and 2 minors admitted to the partnership. As the property was purchased after the commencement of partnership by twenty persons and treated as the asset of the firm, and as the allotment of different portions of the property is to the very persons who earlier held it as co-owners, the Deed of Dissolution would fall under Article 40-B(b) and not under Article 40-B(a). Article 40-B(a) will not apply as this is not a case where 'X' contributes the property to the firm and at the time of dissolution, the property is allotted to 'Y'. This would be a case of XYZ as co-owners contributing the property to the firm and on dissolution the property being allotted by metes and bounds to X, Y, and Z. Therefore, the case would fall under the residuary part of Article 40-B, that is Article 40-B(b). . . . There is thus no basis to hold that the Dissolution Deed has to be stamped as a partition, even assuming that the property was purchased on 28-3-1992 as co-owners. Partition pre-supposes co-ownership as on the date of the partition. If a property had ceased to be the co-ownership property of the 20 purchasers, but had been treated as the asset of the partnership as on the date of execution of the Deed of Dissolution, the Dissolution Deed cannot be treated as a partition. — M/s. Gowri Enterprises, Gowribidanur, Kolar District v State of Karnatakn and Others, 2000(1) Kar. LJ. 39B.

STATE POWER O LEVY AND FIX STAMP DUTY

The power to levy stamp duty is available to the State and is a tax. At what rate the tax will have to be levied and in respect of what transaction, is left to the discretion of the legislature. It is unknown in law that merely on the harshness of a particular levy, the provisions of law thereto have been struck down unless it

can be shown that such levy discriminates by making classification, which is unreasonable and arbitrary. No such argument is put forth in this case. All that is stated is that a memorandum of agreement of lease-cum-sale could not be equated to a conveyance. When the legislature has the power to levy duty on different types of documents, it is the discretion of the legislature to levy duty at different rates on different types of documents. If in the opinion of the legislature such duty has to be paid on different transactions, that wisdom cannot be questioned by the Courts. Duty on such conveyance shall not exceed rupees ten or the difference of the duty payable on such conveyance and the duty already collected on the security deposit under item (d) of Article 5, whichever is greater. The second proviso to Article 20 makes it clear that if conveyance is executed pursuant to a lease-cum-sale agreement referred to in Article 5{d), the duty on such conveyance shall not exceed Rs. 10/- or the difference of duty payable on such conveyance and the duty already collected on the security deposit under Article 5(d) whichever is greater. Therefore, it is clear that the petitioner will not have to pay stamp duty once over again when the sale deed has to be executed under the terms of the lease-cum-sale agreement. If the petitioner has to pay stamp duty by way of conveyance at one stage or the other, at what stage the duty will have to be collected is also in the discretion of the legislature and if the legislature prescribes, such duty shall be collected at the earliest point of time of the transaction, no exception can be taken thereof. — G.S. Rajashekar v Bangalore Development Authority, Bangalore and Another, 1995(5) Kar. L.J. 1A (DB).

PARTNERSHIP PROPERTY RELEASE OR SALE

Where the effect of the various clauses in an instrument was that in consideration of a certain sum of money, the first party gave up in favour of the second party his share, and the second party became the full owner of the assets and liabilities of the dissolved firm, (except a piece of land) and the liability to pay income-tax and sales tax and the right to obtain refund of such tax: Held, Assuming that the instrument in question could be considered as a release, if it could also be considered as a conveyance, it would be chargeable as a conveyance attracting a higher duty. Under the instrument in question, there was a transfer of property, namely, first party's undivided share to the second party for consideration of a sum of money and thus all the requirements of a sale were satisfied.Every sale may not involve a release and similarly every release may not result in conveyance or sale. But where the release is by a co-owner of his share in the common property which is legally capable of being transferred in favour of another co-owner, for a consideration of a sum of money coming outside the common property, the transaction amounts to a sale of the undivided share.The adjectival clause 'which is not otherwise specifically provided for by Schedule' in the definition of 'conveyance' in S. 2(d) of the Mysore Stamp Act does not govern the words 'conveyance on sale' but governs only the words 'every instrument by which property is transferred inter vivas'. It is only when an instrument effects a transfer other than a sale, it requires further examination whether such an instrument is not otherwise specifically provided for by the

Schedule before the instrument can be regarded as coming within the definition of the term 'conveyance'. 8 Mys. CCR. 294 not followed.On the dissolution of the firm, the erstwhile partners will be co-owners of the properties of the firm. Until such property is distributed among the partners according to their rights, each of the partners will have an undivided share or interest in such property.There is no material distinction between the share of a co-owner in a particular immovable property and a co-owner's rights and interests in the assets of the partnership, for the purpose of determining whether the instrument is a conveyance or a release. The extinguishment of the interest of the releasing co-owner and the enlargement of the interest of the other co-owner can amount to a conveyance of the undivided interest of the former to the latter. The use of any particular words like release, relinquish, assign or transfer in an instrument does not conclusively determine the nature of the instrument. The substance of the transaction has to be looked into. — M.A. Venkatachalapathi v State of Mysore, (1966)1 Mys. L.J. 21.

NEED OF MORE PRACTICAL STAMP DUTY STRUCTURES FOR LEASES

Stamp duty for leases — Need for practical, logical and reasonable structure of — Inconsistencies in existing structure — It is for Government to remove such inconsistencies. R.V. Raveendran, J., Held: To avoid the prevalent confusion and uncertainty in regard to Stamp duty in these matters and to encourage parties to execute proper deeds relating to leases and register them, the Legislature/Government may consider a more practical, logical and reasonable structure of Stamp duty regarding leases and lease agreements. While logic need not be a hallmark of taxing statutes, apparent inconsistencies may be pointed out for rectification in the interests of revenue, to encourage public to enter into lease deeds and pay Stamp duty instead of resorting to oral agreements coupled with delivery of possession. One area where the anomaly is glaring is the prescription of same Stamp duty on the amount paid as premium and advance/deposit. .... In fact the Stamp duty on a sale of a property for Rs. 1,00,0007- and lease of the same property for one year with a refundable advance of Rs. 1,00,0007- is the same. The anomaly of same Stamp duty on premium (non-refundable consideration for the lease) and advance (refundable deposit) requires to be rectified. Be that as it may. K. Amarnath v Smt. Puttamma, 2000(4) Kar. L.J. 55G.

(TO BE UPDATED)CASE LAW ON SC/ST LANDS AND ITS TRANSFERS CASE LAW ON SC/ST LANDS AND ITS TRANSFERS

In regard to SC/ST lands granted by government on condition restricting alienation, any transfers made even after the restricted period is declared as void. Government permission is necessary for such transfers. This law is laid down by

karnataka High court in a case of Narayan parameshwar naik and others vs Deputy commissioner karwar and others 1999(6) KarLJ 244.

Only lands granted with restriction on alienation are covered under PTCL ACT 1978.

Land granted to a person not belonging to sc/st at the time of grant and if by subsequent notification caste is added to sc/st group. Such lands also attract PTCL ACT. T.M. Rangaiah &another vs The AC Tiptur. 2002(5) KarLJ.188B.

Land in respect of which occupancy right is conferred under Land reforms act as a tenant to an sc/st person. Such conferment of occupancy right is not a granted land. Mohammed Jaffar and another vs State of Kar &Others 2003(1)KarLJ 337 (FB).

Under PTCL ACT exchange or gift in favour of relative is also prohibited. Siddalingaiah vs State of Kar 1988(3) KarLJ sh.N. 13.

Even if such transferee is also a sc/st such transefers also void. Smt Anjanamma vs The DC Kolar Dist 2000(4) KarLJ sh.N.22A.

Period of prohibiton starts from the date of issuance of saguvali chit. Karappa Bovi vs Special Dc mys 1990 (3 KarLJ 361 (DB).

Settlement among familly does not amount to transfer. Kariaiah vs DC mys Dist 2000(1)KarLJ .sh.N.48.

Only those transfers of lands which have taken place on or before 1-1-1949 having completed 30 years prior to 1-1-1979 are saved from the proceedings under PTCL ACT. V.Muniswamy vs Deputy comm kolar 1993(3) KarLJ 346.(DB).

Land granted for full market or upset price; condition for non transefering is not attracted in such cases. Narasimhamurthy vs State of Karnataka and others 2001(2) KarLJ 313A.

Deputy Commissioner is authorised to permit grantee under Rule 9(1) of The Karnataka Land Grant Rules 1969 to sell the land for two reasons (a) For acquiring other land. (b) For improving remaining land. The 50% of market value of the land as determined by DC shall be paid to government at the time of sanctioning. Such applications are allowed only after 5 years of the grant.

THIRD PARTY CANNOT CHALLENGE GRANT CONDITIONS

Grantee is not challenging the condition - Third party is not entitled to say that conditions imposed by grantor to grantee were void. 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.

UNDER SIMILAR CIRCUMSTANCES 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 SIMILAR JUDGEMENT RELATED TO TENANTED LANDS. 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.

For detailed reference of above case laws following web addresses will help you:

For supreme court cases upto date:http://www.commonlii.org/in/cases/INSC/

http://judis.nic.in/supremecourt/chejudis.asp

For Several high court decisions:

http://www.commonlii.org/resources/221.htmlCASE LAWS GOVERNING RELIGIOUS AND CHARITABLE INSTITUTIONS AND MATHA’S MAHANTH IS PRESIDING ELEMENT OF MATH:- A Math is a religious institution sui generic and unlike a temple where the presiding element is the diety, the presiding element of a math is its mahant or matadhipathi.The property belonging to the math is in fact attached to the office of mahant, and passed by inheritance to one who does fill the office. The head of the math is not a trustee in the sense in which the term is generally understood, but in legal contemplation he has an estate for life in its permanent endownments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on religious or charitable objects in accordance with usage. Krishna Singh v Mathura Ahir AIR 1980 SC 707.

IDOL’S PROPERTIES:- The properties of an Hindu temple or an idol or debutter estate vests in idol itself, while it’s possession and management vests in the shabait as manager of the debutter estate. Deoki Nandan v Muralidhar AIR 1955 SC 133.

IDOL IS JURISTIC PERSON:- When the property is given absolutely by a pious Hindu for the worship of an idol, the property vests in the idol itself as a juristic person. Kalamaka Devi v M.R.T.Nagji AIR 1970 SC 439, 441.

NO DOCUMENT REQUIRED:- Except where a religious or charitable trust is created by a will, it is quite competent to a Hindu to dedicate for religious or charitable purpose, any immoveable property without any document in writing. Govindlaji v State of Rajasthan AIR 1963 SC 1638.

DEED FOR DIETY IT’S INTERPRETATION:- Supreme court has laid down cardinal principles of construction of a deed of dedication of property to the diety. Nirmalabala Ghosh v Balaichand Ghosh AIR 1965 SC 1874.

FOUNDER RIGHT’S:- A founder has got a right to appoint a shebait and lay down the rule of succession. A founder who does not create a line of succession does not dispose of the shebaiti right. In such cases the shebaitiship devolves on the heirs of the founder. Proffulla Chrone v Satya Chrone AIR 1979 SC 1682.

WILL CANNOT BE MADE FOR SHEBAITSHIP:- SHEBAIT is a Human Ministrant and custodian of the idol and of a manager of endowed properties. Will operates on the death of testator. On the death of shebaith there is nothing to be transmitted through will. Kali Kinkor Ganguly v Panna Banerjee AIR 1974 SC 1932.

SALE OF TEMPLE VOID:- The transfer of either temple or the diety by sale is void in its inception. Kali Kinkor Ganguly v Panna Banerjee AIR 1974 SC 1932.

SALE OF DEBUTTER PROPERTY:- An alienation of a debutter property by a sale or by permanent lease is governed by the Rule of “unavoidable necessity” or “legal necessity” or “benefit of the diety or estate” Sridhar v Shri Jagan Nath Temple AIR 1976 SC 1860/ G.V.Kamath v Vishnu Dev AIR 1973 Mys 207.

BENEFIT OF ESTATE:- For a transaction to be treated as benefit of estate the real test would be whether it was one which a prudent owner would enter into in the ordinary course of a management with prudence and foresight. Balmukund v Kamalwati AIR 1964 SC 1385.

MATHADIKARI:- The office of Mathadikaricarries with it the rights to manage and possess the endowed properties on behalf of the math and the right to sue on its behalf for the protection of those properties. Saranagadeva v Ramaswami AIR 1966 SC 1603, 1606.

(TO BE CONTINUED)CASE LAW ON EASEMENTS

EASEMENT OF NECESSITY OVER ACQUIRED LANDSAn easement of necessity like a right of passage and held that right of passage by way of necessity, as enjoyed by respondents over land, and now acquired by appellant, was not extinguished by reason of acquisition. FOR FULL CASE CLICK HERE

CASE LAW GOVERNING DOCUMENTS AND IT’S INTERPRETATIONS

Word ‘MAY’ used in a document: - If it involves a discretion coupled with an obligation or where the court advances a remedy and suppresses a mischief or giving the word a directory significance would defeat the very intent and purpose of the document, the word ‘may’ should be interpreted to convey a mandatory force. State of U.P v Joginder Singh AIR 1963 SC 1618,1620.

Circumstances under which particular words are used in a document: - This has to be looked into in addition to general rule that intention of executor has to be ascertained after considering all the words used in their ordinary and natural sense. F.M.Devaru v Prabhakar 2004(2) SCC 505

Conflict between two parts:- Where there is a conflict between what is said in one part of the document and another part of it, the earlier part prevails over the latter,( Kaivelikkal v H.Ganesh AIR 1995 SC 2491.) but an attempt should always be made to harmonize the conflict between the two parts. Bapu Swami v Pattay Gounder AIR 1966 SC 902.No word in a document should be read in isolation:- Jagannadha v State of A.P. AIR 2002 SC 77.Two deeds on same date:- When two deeds are executed on the same date, one executed earlier in time will prevail. The time of document taking effect depends upon the date of execution and not upon the date of registration. Gurbax Singh v Kartar Singh AIR 2002 SC 959.Minor though disqualified to contract – capable of receiving property:- The transfer of property Act does not prohibit transfer of property to a minor. K.Balakrishan v K.Kamalam. AIR 2004 SC 1257.

MOU or Development agreement or sale deed:- When MOU was drawn by giving developer right to sell or deal with the property as he likes after completion of constructions or development. It becomes Sale deed. Volition Investment pvt ltd. V Madhuri AIR 2003 Bom 360.

Time and contract:- When a contract is related to sale of immoveable property, it will normally be presumed that the time is not the essence of the contract. Gomathinayagam pillai v Palaniswami Nadar AIR 1967 SC 868. Hence deeds should contain the time frame as agreed between the parties. In case of K.S.Vidyanandan (AIR 1997 SC 1751) considering the fluctuation in the prices of the real estate, particularly in the metropolitan cities and in urban areas, the SC has toned down in rigor of the normal rule in respect of the immoveable property contracts but has not done away with or varied the normal presumption laid down earlier.

Clear wordings:- If the words used in the document are clear, there is very little the court can do about it. ONGC v Saw pipes Ltd AIR 2003 SC 2629.

Illegal contracts:- When a contract is wholly illegal, title to the property does not pass. If it is partly lawful and partly unlawful, if it is severable, the lawful part shall be given effect to. Canbank Financial services v Custodian 2004(8) SCC 355.

No outside aid to interpret document:- In the matter of construction of a document no aid from outside can be taken unless the meaning is ambiguous. United India v Harchand 2004 (8) SCC 644.

Conflict between two parts:- If there is any inconsistency between the earlier part and latter part of a deed, other than a will, the earlier part shall prevail over the later part where in the case of a will the latter part shall prevail over the earlier part. Uma Devi v T.C.Sdhan AIR 2004 SC 1772.

Name of the deed is not important but it’s real intention:- The intention may be gathered by reading the entire document and, if so necessary, from other attending circumstances also. If through such a process the intention of the parties can be culled out consistently with the rule of law, the courts are required to take that course. Tamboli Ramanilal v Ghanchi Chimanlal AIR 1992 SC 1236./ Keshav

Kumar Swarup v Flowmore (pvt) Ltd. 1994(2) SCC 10./ Prakash Roadlines (p) Ltd v Oriental F &G insurance co.Ltd. 2000(10) SCC 64.

(TO BE CONTINUED)

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.

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 property2. the right to any benefit from the property (examples: mining rights and rent)3. a right to transfer or sell the property4. 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 INDIAIn 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 LANDThe 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 AFFAIRSIn 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 potentatesThe 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 KARNATAKAThough 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 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".

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.”

Can the gift be made of a property which is not in existence, i.e. of future property? No. The subject matter of a gift must be a certain, existing, moveable or immoveable property. It could be anything such as, goods, any right, title or interest in any immovable property, which exists, or even an actionable claim. It must be transferable within the meaning of Sec.6 of the Transfer of Property Act. A gift of the right to management is valid. But a gift of the future revenue of the village is invalid. Release of a debt is not a gift; because it does not involve any transfer of property but merely a renunciation of a right of action.

The agreement to lease should contain the following particulars • Parties to the deed. ("A lease right can not be created by a person who has no title in the property. [Rentala vs. Chimmapudi, AIR 1967 SC1793] • Details of the property to be demised• Duration of the lease• Price/premium, and/or lease rent/any other thing of value/share of crops etc.• Periodicity/specific occasions when the payment would be made/services thatwill be rendered.• Date of commencement. • Date of determination.

It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653).

What rights does a Hindu child, who is born to persons whose marriage is declared void or voidable have under the Hindu Marriage Act?

Such a child is considered legitimate regardless of the status of the parent's marriage, if the marriage was performed according to Hindu rites under the Hindu Marriage Act, 1955 or was a civil marriage under the Special Marriage Act, 1954. Such a child may inherit the property of his parents. However, he/she does not acquire rights in relation to joint family or ancestral property.

SOME ANSWERS FOR REGISTRATION AND STAMP DUTY QUIERIES

Every document that is to be registered shall be presented at the proper registration office by the appropriate person (the parties to the document), his representative or agent, duly authorized by a power of attorney, executed or authenticated, according to the procedure, laid down in the Act. Any person other than the parties also can present such document for registration provided the concerned party has executed proper power of attorney in favour of such person empowering such person to present the document for registration.

If a document is presented for registration by a person, who is not duly empowered to do so, the registration of the document becomes invalid. The Registration Act requires a power of attorney to be given to the agent by the principal, before it can be presented for registration. The absence of this renders the registration of the document invalid.

However, the Act itself provides for a remedy. When a person, who executes such a document, realizes that such registration is invalid, he can apply to the registrar or the sub-registrar within four months from the date that he is aware that the registration is invalid. Subsequently, he can apply for the re-registration of the document.Registration acts as a proof that a transaction has taken place.

The registration of a document serves as a notice of the transaction, to the persons affected by the transaction. Registration also serves as an implied notice to any person subsequently acquiring interest in the property, covered by the registered document.

When a document, which is compulsorily to be registered, is not registered, it fails to confer any title given by the document.

The real purpose of registration is to ensure that every person dealing with property for which compulsory registration is required, can confidently rely on the statement contained in the register, as being a full and complete account of all transactions by which the title may be affected. [Lachman Das v. Ramlal AIR 1989 SC 1923]

Registration is not proof of execution.

When the execution of a document is directly in dispute between two parties, the fact that the document is registered is not sufficient to prove its genuineness. Registration does not automatically dispense with the necessity of independent proof that the document was executed.

A certificate of Registration is mere evidence that a document has been registered. It is not proof that it has been executed.

Stamp Duties are taxes payable on every conceivable documented transaction. It is a form of revenue for a state. The proceeds of the duty are assigned to the state in which they are levied. It is payable when any property or other contractual transaction is entered into in India or even abroad. However, the subject matter of the transaction must be situated in India.

Stamp Duty is not payable on the following:

• documents, executed on behalf of the Government;• testamentary documents;• documents, required to be made for judicial or non-judicial proceedings; • documents, filed in judicial or non-judicial proceedings.

If the lease is created for a certain specific period, can it be terminated before the specified period?

Sec.111 of the Transfer of Property Act, supplies the circumstances in which a lease could be determined. These circumstances could be summarized as follows: • On the expiry of the period of lease;• On the happening of an event, which is a condition for expiry• On the happening of such event when the lessor's interest in the property terminates;• When the persons holding the ownership and the lease become one and the same person, at the same time, own the right; this state is also known as a 'merger';• When the lessee, expressly, yields up its interest to the lessor;• In the case of an 'implied surrender,' i.e. by the creation of a 'new relationship' e.g. where the lessee becomes the mortgagee, the rights of the former remain in abeyance because his larger rights, as the mortgagee, come into effect. His rights, as the lessee, are restored when the mortgage is redeemed;• When the lessee breaks the express condition giving the lessor the right to re-enter the property: when the lessee sets up a title detrimental to the interests of the lessor: or, when the lease stipulates that the lessor may re-enter the property when the lessee is adjudged insolvent. In such cases, the lessor may give the lessee notice to terminate the lease. This is, technically, known as forfeiture;• On the expiry of the notice to terminate the lease or, to quit or, of information to quit duly given by either party to the other.

HINDU LAW AND GUARDIANSHIP

UNDER HINDU LAW IF A WOMEN (INCLUDING YOUR MINOR DAUGHTER) GETS PROPERTY IN ANY MODE IT BECOMES HER ABSOLUTE PROPERTY. NOW YOU HAVE NO RIGHTS TO CANCEL SUCH SETTLEMENT. ONLY OPTION AS A GUARDIAN IS SEEK COURT PERMISSION TO SELL THAT PROPERTY BY FILING CASE , CONSULT YOUR NEARBY ADVOCATE FOR FURTHER DETAILS

QUESTION= i and my mother who are the joint owners of a plot had settled th same in favour of my minor daughter (2 years old) round 3 years back. this,i had done as i was having losses in my yarn business. now i want to dispose the property to pay off my debts. can i revoke the settlement made in favour of my minor daughter?. the gaurdian to the minor are (1) myself (2)my mother and my wife.

LANDLORD AND TENANT

FOR ANY HARASSMENT FROM YOUR LANDLORD YOU HAVE TO FILE GRIEVANCES WITH POLICE.

IF YOUR LANDLORD IS NOT CO-OPERATIVE BETTER TO LOOK AFTER ANOTHER HOUSE. BETTER TO GET ADVANCE AMOUNT BACK AND HANDOVER POSSESSION.

IF YOUR LANDLORD MAKES ANY MOVES TO CONFISCATE AMOUNT IN ADVANCE TOWARDS ANY SILLY MATTERS COMPLAIN WITH POLICE AND SETTLE THE MATTER THERE.

NOW A DAYS RENT ACT FAVOURS LANDLORD, BUT IT ALSO GIVES PROTECTION FROM NEEDLESS HARASSMENTS. BETTER YOU FILE SOME COMPLAINT BEFORE HEAD QUARTER ASSISTANT IN DC OFFICE UNDER RENT ACT COMPLAINING YOUR GRIEVANCES. TO SETTLE THE MATTER YOR LAND LORD YIELDS TO YOUR LEGAL DEMAND.

QUESTION,Three months ago i rented a house in B'lore and i have noticed landlord is putting various silly conditions, like a child(1yr) shld not make noise by dropping things on floor, Roti making noise, and withholding essential water supply.There was an arguement also on why he does that, to which he said if i am intersted i may vacate his house. And he said i will have to bear white-wash cost which will be deducted in my advance deposit which is with him. It is unfair on his part to treat us who is at his mercy now. Pls guide what should i do now. Can the agreement be made null and void for not keeping his promises on proper water supply, and not issuing receipts for water charges and maintanence amounts. Will i get the full refund of my deposit amt?