Monthly Archives: August 2016
Short title and commencement. THE ELECTION LAWS (AMENDMENT) ACT, 2016 NO. 10 OF 2016 [3rd March, 2016.] An Act further to amend the Representation of the People Act, 1950 and the Delimitation Act, 2002. BE it enacted by Parliament in … Continue reading
THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016 NO. 16 OF 2016 [25th March, 2016.] An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment … Continue reading
PARTITION: Hindu undivided family – Partition — Effect of — Held: Once a partition in the sense of division of right, title or status is proved or admitted, presumption is that all joint property was partitioned or divided — In the instant case, High Court has affirmed the findings of the trial court that in 1985, there was a complete partition and the parties had acted on the same — Therefore, the presumption would be that there was complete partition of all the properties — Burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property – High Court committed an error in placing the burden of proof on the appellants, who were defendants in the suit to prove that the property at Sl. No. V was a self-acquired property of their predecessor-in-interest – Findings recorded by High Court on Issue No. III is set aside – Consequently, suit filed by the plaintiffs-respondents shall stand dismissed – Evidence – Burden of proof. HINDU LAW: HUF – Partition — Presumption — Explained. A suit for partition between the parties was dismissed by the trial court holding that a family arrangement had taken place in the year 1985, and every one took possession in their respective shares and was enjoying the same. However, in appeal the High Court held that the plaintiffs were entitled to partition of property at Sl. No. V, and set aside the finding of the trail court with regard to issue no.III that the suit property at Sl. No.V was the self acquired property of the predecessor-in-interest of the defendants concerned.
Allowing the appeal, the Court HELD: 1.1 The High Court having accepted the findings of the trial court that there was completed partition between the parties, has committed an error of jurisdiction in putting the burden of proof on the … Continue reading
Hindu Law: Joint family properties – Partition of through family settlement – Sisters relinquishing their rights in properties in favour of their brothers – Consent decree based on family settlement – HELD: A partition by meets and bounds may not always be possible – A family settlement is entered into for a larger purpose of achieving peace and harmony in the family – It is not a case where settlement was contrary to any statutory provision or was opposed to public policy – Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law – Contract Act, 1872 – s.23. Deeds and Documents: Deed of `release’ – Relinquishment of right in property by sisters in favour of their brothers – HELD: Release by an heir other than coparcener does not need any consideration – s. 25 of Contract Act must be read and construed having regard to the fact situation obtaining in the case – Renunciation in Indian context may be or may not be for consideration – Contract Act, 1872 – s.2 (d) and 25 – Transfer of Property Act, 1882 – ss. 122 and 123. Contract Act, 1872: ss. 17 and 19 – `Fraud’ – Voidability of agreement – Suit by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit – HELD: When a fraud is alleged, particulars thereof are required to be pleaded – In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed – Besides, documents on record show that partition consequent upon consent decree had been acted upon – Papers were signed either in office of advocate or before Sub-Registrar – Both the courts below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties – No case of fraud or misrepresentation has been made out – Code of Civil Procedure, 1908 – Or. 6, r.4. Limitation Act, 1963: Schedule – Articles 59, 65 and 110 – Suit alleging fraud in obtaining deed of partition – Limitation – HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or not – In the instant case, it was required to be set aside – In view of Article 59, suit was barred by limitation. The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the suit properties on the ground that the same were self acquired properties of their father, `KS’. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respondents nos. 1 and 2 was that their father `KS’ alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. `KS’ had two wives namely `S’ and `V’ and in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of `KS’ by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) amongst the children of `KS’ from `S’ in terms whereof 1/3 share in the property shown as Item No.3 was allotted to their mother `S’ and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. `S’ died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No.2 of the suit properties. In the appeal the plaintiffs filed an application under Or.6 r.17 read with s. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 to the Schedule of the properties. The High Court dismissed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No. 2459 of 1982 being fraught with the elements of fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiffs-appellants could be said to have voluntarily made admissions in the said pleading that the deed of partition and the deed of relinquishment being void ab initio and hit by Section 25 of the Indian Contract Act as for the said purpose passing of adequate consideration was necessary, love and affection being not the requisite consideration therefor and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment that the partition of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be attracted and not Article 59 thereof.
Dismissing the appeal, the Court HELD: 1.1 The source of title in respect of properties in suit is not in question, as the same have all along been treated as joint family properties by both the branches of `KS’ through … Continue reading
THE BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT ACT, 2016 NO. 43 OF 2016 [10th August, 2016.] An Act further to amend the Benami Transactions (Prohibition) Act, 1988. BE it enacted by Parliament in the Sixty-seventh Year of the Republic of India as … Continue reading
T.P.Act – sec. 105,106 and 107 = Un registered lease deed – can be considered as month to month lease or one year lease – Terms of tenancy can not used to derogate the statutory provision of Sec.106 T.P.Act ; Non registration of the lease= “It is the general proposition of law in view of the provisions of Section 49 of the Indian Registration Act that when a document is required to be registered under a provision of law, it cannot be accepted in evidence of any transaction affecting an immovable property in absence of registration of that document. It is also true that in accordance with the provisions of Section 107 of the Transfer of Property Act, 1882, a lease of immoveable 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.- When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.- Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.” Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality = the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary’ in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable. In view of the above reasoning and conclusions recorded by us, the impugned judgment and order passed by the High Court is set aside. The judgment and order passed by the Trial Court is restored. The Appeal is accordingly allowed. No costs.
NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8361 OF 2016 (Arising out of SLP (C) No.24486 of 2014) M/S PARK STREET PROPERTIES (PVT) LTD. ………APPELLANT Vs. DIPAK KUMAR SINGH & ANR. ……RESPONDENTS J U … Continue reading
once they had withdrawn their application for VRS, there was no question of going ahead with the option of VRS and accepting the same. Therefore, the action of the Corporation was unwarranted and contrary to law ?=This chart indicates that some of the employees belonging to the first group had withdrawn their offer before August 01, 2005. They had right to do so. Acceptance of their offer after the withdrawal would be of no consequence. However, those employees who withdrew their offers after August 01, 2005 could not do so and, therefore, the Corporation was within its right to accept their offers. Likewise, those employees belonging to the second category who had withdrawn their offers before October 28, 2006 were entitled to withdraw their offers as those were not accepted by that date. However, the withdrawal after October 28, 2006 when Scheme was closed would be of no consequence.=When we apply the aforesaid test to the facts of this case, we find that insofar as those employees who fall in the first category are concerned, they had withdrawn their offer after August 01, 2005, except one Mr. Dinesh Chand Yadav, who is respondent No.1 in the Civil Appeal arising out of Special Leave Petition (Civil) No. 14874 of 2010. Therefore, from this batch, only he is entitled for reinstatement with back wages, as he has also filed an undertaking, in terms of this Court’s order dated May 12, 2016, to the effect that he is not gainfully employed during the relevant period. Likewise, employees falling in the second category had withdrawn their offer after October 28, 2006, except Mr. Sukhram and Mr. Ram Sharan Rathore, both respondents in the Civil Appeal arising out Special Leave Petition (Civil) No. 14594 of 2010. However, these respondents failed to comply with this Court’s order dated May 12, 2016. They are, therefore, entitled for reinstatement without back wages. = In the case of all other respondents, their application for withdrawal post the tenure of the Scheme would be of no consequence. – The direction of the High Court reinstating these respondents/employees is, therefore, found to be contrary to law and is hereby set aside, resulting into allowing all other appeals of the Corporation.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4437 of 2009 |MADHYA PRADESH STATE ROAD | | |TRANSPORT CORPORATION |…..APPELLANT(S) | |VERSUS | | |MANOJ KUMAR & ANR. |…..RESPONDENT(S) | W I T H CIVIL … Continue reading