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Property dispute lawyer in Mumbai

 

Attesting witness – Mere attestation of a deed does not by itself impute to the attesting witness any knowledge of its contents so as to make out a case of estoppel against said attesting witness – Attestation of a deed by itself stops a man from denying nothing whatsoever excepting that he has witnessed the execution of the deed. Property dispute lawyer in Mumbai (Ramesh Chander & Ors. Vs Budha Singh & Anr.) 2004(2) Civil Court Cases 170 (P&H)

‘A person is said to have notice’ – Meaning – In its legal sense notice can be termed as an information concerning a fact actually derived from a proper source, or else presumed by law to have been acquired, which information is regarded as equivalent to knowledge in its legal consequences –  Notice is the making something known, of what a man was or might be ignorant of before –  Hence, knowledge of any fact would put a prudent man upon inquiry. (C.Yemuna & Anr. Vs P.Manohara) 2004(3) Civil Court Cases 665 (A.P.)

“Nasban” rights – It is a right of the planter of tree in the land of the other by which he acquires half right in those trees and half right in their fruits till the life of the trees. (Kulwant Singh Vs Phula Singh) 2004(2) Civil Court Cases 156 (P&H)

Release deed – In favor of some co-parceners – Will enure to the benefit of all other co-parceners and not only in favour of those co-parceners in whose favor release was made. (M.Krishna Rao & Anr. Vs M.L.Narasikha Rao & Ors.) 2004(2) Civil Court Cases 265 (A.P.)

Transfer of property – Conditional – It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the court will give effect to it unless there is some provision of law which annuls or invalidates such condition, restraint or limitation. None has been brought to our notice. (Subbegowda (Dead) by Lrs. Vs Thimmegowda (Dead) by Lrs.) 2004(2) Apex Court Judgments 117 (S.C.) : 2004(3) Civil Court Cases 63 (S.C.) Property dispute lawyer in Mumbai

Sale of land with well – Sale of land by three brothers – Plaintiff having purchased land with well – Plaintiff alone is entitled to draw water from well – Defendants cannot claim disputed well to be joint and common, in absence of any agreement in their sale deed to keep well joint and common. (Nadupari Narayana Vs Ijjada Narayana) AIR 2002 A.P. 387

 

Trademark – Registration – For medicinal preparations trademark “PV-DINE’ sought to be registered whereas trademark “PIODINE” already registered for similar product – Fast or faint utterance of both marks likely to create confusion that they are one and the same – There is no phonetic dissimilarity between the two trademarks – Refusal to register – No interference. (BDH Industries Ltd. Vs Croydon Chemical Works Pvt.Ltd.) AIR 2002 Bombay 361

Property dispute lawyer in Mumbai

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Maintenance – Charge over property – Husband entered into agreement for sale of house when dispute between him and wife started – Purchaser paid advance under agreement without enquiring about his wife and children – Purchaser made a party to suit filed by wife – Wife in possession of house – Held, purchaser cannot be considered to be a bonafide purchaser of property without notice of suit claim – Suit claim can be enforced by creating a charge over the property. Property dispute lawyer in Mumbai (S.Yellamma Vs S.Anjaneyulu) 2003(3) Civil Court Cases 211 (A.P.) 

Maintenance – Charge – Right to receive maintenance by wife can be enforced against transferee of property who has knowledge of existence of such a right – Decree for maintenance need not have been passed prior to transfer – Existence of right under law is notice to all – Where transferee is a member of the family, he must be held to be aware of right of wife to claim maintenance – Sisters of husband cannot challenge charge created over their property in decree for wife’s maintenance. (C.Yemuna & Anr. Vs P.Manohara) 2004(3) Civil Court Cases 665 (A.P.)

A person said to have notice –  Where a person is fully aware of the existing rights of the parties and more so where such transferee is a member of the family, it cannot be said that he is not aware of the rights of the other members or persons forming part. (C.Yemuna & Anr. Vs P.Manohara) 2004(3) Civil Court Cases 665 (A.P.)

Ostensible owner – Transfer – Documentary and oral evidence that real owner by his conduct allowed to believe that he has no right in properties – Entries in revenue record and registered document support ostensible title and possession of ostensible owner – Purchasers guided by land revenue records and title deeds are protected u/s 41 of the Act. (Neelakanth Vs Siddalingayya) AIR 2004 Karnataka 258

Ostensible owner – Transfer made by an ostensible owner with consent, express or implied of the real owner is protected provided that the transferee after taking reasonable care to ascertain that the transferor had the power to make transfer had acted in good faith. (Kashmir Singh & Ors. Vs Panchayat Samiti, Ferozepur & Ors.) 2004(2) Apex Court Judgments 184 (S.C.)

Purchase of property on basis of mutation entries without ascertaining or knowing who were the real owners – Purchaser cannot be said to have taken reasonable care or acted in good faith to claim protection of provision against dispossession by real owner of property. (Mallappa Adiveppa Hadapad Vs Smt.Rudrawwa) 2003(3) Civil Court Cases 192 (Karnataka) 

Lis pendens – Plea raised in second appeal for the first time – Liable to be rejected. (Kamalammal Vs Senthil) AIR 2003 Madras 337

Sale deed – Executed before getting permission of authority to sell land to non agriculturist but the same received before registration of sale deed – Deed will be treated as valid. (Bhagwanbhai Vs Arogyanagar Co – op. Housing Society Ltd.) AIR 2003 Gujarat 294

“Dwelling house” – Determination – In the instant case bar of S.44 not attracted as suit land is neither part of plaintiff’s house nor appurtenants used by plaintiff – Thus, plaintiff’s suit deserves to be dismissed – Legal aspects – Clarified. (Sankar Ghosh Vs Rakshit Kumar Ghosh) 2003(2) Civil Court Cases 523 (Calcutta) 

Dwelling house – Belonging to undivided family of two brothers – One brother cannot alienate any specific portion of the house without partition – Purchaser from one brother, who is not member of the family is not entitled to joint possession or other common or part enjoyment of the house – Object of second part of the provision is to prevent the intrusion of the strangers into family residence. Property dispute lawyer in Mumbai (Devendra Singh Thakur Vs Smt.Shantibai & Ors.) 2005(1) Civil Court Cases 465 (M.P.)

Joint family residential house – Female heirs have right of residence in house but cannot claim partition of such house. (Mahendra Mahanta Vs Smt.Tarini Dei) AIR 2003 Orissa 180

Sale – Bona fide purchaser for value and consideration – Encumbrance on immovable property – Where parties to the agreement are resident of a small village then it is not possible to believe that the residents of the village are not aware of the agreement – Purchaser cannot be held to be a bonafide purchaser for value and consideration. (Ajit Singh (dead) through his LRs. & Anr. Vs Karam Singh (dead) through his LRs & Ors.) 2005(1) Civil Court Cases 228 (P&H)

Sale – Co-sharer – Sale of specific portion of land by particular Khasra numbers by a co-owner out of joint Khewat would be a sale of share out of joint Khewat. (Ajit Singh (dead) through his LRs. & Anr. Vs Karam Singh (dead) through his LRs & Ors.) 2005(1) Civil Court Cases 228 (P&H)

Sale by power of attorney holder – Vendor in his life time did not challenge the sale deed executed by her attorney and no grievance made that he did not receive the consideration – Held, it is not open to a stranger to sale deed to say that sale deed was without any consideration or was invalid in any other manner. (Jarnail Singh Vs Gurmail Singh & Ors.) 2005(1) Civil Court Cases 445 (P&H)

Partial redemption – Not permissible in law – Purchaser from a sharer, who is having some interest in the mortgaged property, is not entitled to redeem his share of mortgaged property, on payment of  proportionate mortgage amount – However such a purchaser can redeem the mortgage by paying the full amount and thereafter has to work out his remedy for carving out his share. Property dispute lawyer in Mumbai (K.Ramachandra Thevar Vs Murugesan & Ors.) 2004(2) Civil Court Cases 584 (Madras)

Transfer of property on the basis of forged power of attorney – It is no sale deed in the eyes of law being without any authority. (Hans Raj (Dead) through L.Rs. & Anr. Vs Karmi & Ors.) 2004(2) Civil Court Cases 17 (P&H)

Impleading of a party -Transferee pendente lite – Can be impleaded as a party if his interest in the subject matter of suit is substantial and not just peripheral – Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.)

Co-owners – During pendency of partition proceedings some of the co-owners giving the shop on rent – Shop fell to the share of other co-owners who were not party to letting – Tenancy is not binding on co-owners who were not party to letting – They are entitled to evict tenant in execution of decree – Tenant not protected under Rent Act. (Kulwant Rai Vs Des Raj) 2003(1) Civil Court Cases 214 (P&H) 

Subsequent purchaser for value without notice – Defence not available when transfer is effected during pendency of suit – Such transfer is hit by principle of lis pendense. (M/s Ceean International Private Ltd. Vs Ashok Surana) AIR 2003 Calcutta 263

In execution property attached – Sale deed executed during pendency of execution proceedings – Hit by doctrine of lis pendens.(Narendrabhai Chhaganbhai Bharatia Vs Gandevi) AIR 2002 Gujarat 209

Lis pendens – Agreement to sell – Executed in favour of third party prior to filing of suit for specific performance of contract – Held, sale will not be vitiated on ground of lis pendens. (Rajan Vs Yunuskhutty) AIR 2002 Kerala 339

Lis pendens – Elements required for the applicability of the provision are : (1) There must be a suit or proceeding pending in a Court of competent jurisdiction; (2) The suit or proceeding must not be collusive; (3) The litigation must be one in which right to immovable property is directly and specifically in question; (4) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation; (5) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.) 

Lis pendens – Principle underlying  is to maintain the status quo unaffected by the act of any party to the litigation pending its determination – Principles contained in the provision are in accordance with the principle of equity, good conscience or justice because they rest upon an equitable and just foundation. (Narendrabhai Chhaganbhai Bharatia Vs Gandevi) AIR 2002 Gujarat 209

Lis pendens – Proceedings for restoration of possession of land filed before Revenue Court – Proceedings not of suit but of summary nature – Sale deed of land executed during pendency of – Not affected by doctrine of lis pendens. (Gowardhan Vs Ghasiram) AIR 2002 M.P. 130

Lis pendens – Sale during pendency of suit for specific performance – Held, transfer of immovable property during pendency of civil suit without permission of Court is hit by principle of lis pendens and decree passed by Court is not adversely affected. (Jai Chand Vs Gopal) 2004(3) Civil Court Cases 116 (P&H)

Lis pendens – Transferee pendente lite is treated in eye of law as representative-in-interest of judgment debtor – Bringing of a lis pendens transfer on record is not as of right but in discretion of Court – Lis pendens transferee is bound by the decree even if he is not brought on record. (Raj Kumar Vs Sardari Lal & Ors.) 2004(1) Apex Court Judgments 438 (S.C.)

Lis pendis – Property purchased under registered sale deed for consideration and without notice of litigation – Principles of lis pendis not applicable. Property dispute lawyer in Mumbai (Avinash Chander & Anr. Vs Hazura Singh) 2003(1) Civil Court Cases 439 (P&H)  

Immovable property transferred by way of collusive decree during the pendency of suit for recovery of loan amount of Rs.1500/- – Transferor and transferee real brothers and decree passed in just four days – Transferee cannot be said to be transferee in good faith – Transfer of  immovable  property made with an intention to defeat or delay the creditors of the transferor is voidable. (Rattan Singh Vs Ram Singh) 2003(3) Civil Court Cases 638 (P&H) 

Transfer of immovable property made with an intention to defeat or delay the creditors of the transferor is voidable. (Rattan Singh Vs Ram Singh) 2003(3) Civil Court Cases 638 (P&H) 

Sale – Fraudulent transfer – Plaintiff must prima facie establish that either sale is sham or if a real one was a fraud on him – Plaintiff prima facie establishing fraudulent intention – Onus shifts on transferee to prove his good faith. (Narendrabhai Chhaganbhai Bharatia Vs Gandevi) AIR 2002 Gujarat 209

Entire sale consideration received and vendee put into possession – Power of attorney also executed in favour of vendee – Held, power of attorney cannot be revoked by defendant in view of S.202 of Contract Act – Plaintiff is legally entitled to protect his possession as a prospective vendee. Property dispute lawyer in Mumbai (Jeet Kumari Vs Girdhari Lal) 2003(3) Civil Court Cases 239 (P&H) 

Agreement to sell – Possession of property in part performance of contract for sale – If requirements of S.53-A of TPA are satisfied, possession may be protect even against the true owner. (Ramesh Chand Ardawatiya Vs Anil Panjwani) 2003(1) Apex Court Judgments 595 (S.C.)

Bona fide purchaser for value – Having no knowledge of defect in title of seller – Purchaser will be protected by provision of S.53-A TPA – Sale deed in his favour cannot be declared to be void. (Smt.Dayawati & Ors. Vs Madan Lal Varma & Ors.) 2003(3) Civil Court Cases 392 (Allahabad)  

Doctrine of part performance – Cannot be pressed in service against a third party – Sale agreement with one ‘P’ and he put into possession in part performance thereof – Sale deed not executed in favour of ‘P’ – Sale agreement executed by ‘P’ in favour of appellant who was put into possession – Doctrine of part performance could have been availed of by ‘P’ against the owner subject to fulfillment of certain conditions but he same could not be availed of by the appellant against the owner with whom he has no privity of contract. (Rambhau Namdeo Gajre Vs Narayan Bapuji Dhotra (dead) through Lrs.) 2005(1) Apex Court Judgments 134 (S.C.) : 2005(1) Civil Court Cases 377 (S.C.) Property dispute lawyer in Mumbai

Lease – Lessee is not protected by provisions of S.53-A T.P.Act – It is a case of lease and not a case of transfer of immovable property. (M/s.V.K.Sood Engineers and contractors Pvt. Ltd.,  Vs Manpal Singh) 2003(1) Civil Court Cases 274 (P&H) 

Part performance –  Suit for specific performance time barred at the instance of vendee – This by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession. (Mahadeva & Ors. Vs Tanabai) 2004(2) Apex Court Judgments 163 (S.C.)

Part performance – Agreement to sell in favour of tenant – Suit filed by tenant/vendor for specific performance dismissed – Held, vendor/tenant is not entitled to protect his possession u/s 53-A of Transfer of Property Act and is liable to suffer eviction based on landlord-tenant relationship. (D.S.Parvathamma Vs A.Srinivasan) 2003(1) Apex Court Judgments 667 (S.C.) : 2003(2) Civil Court Cases 690 (S.C.) 

Part performance – Agreement to sell – Benefit of the provision is available only if it is proved that he was always reading and willing to perform his part of the contract. (Chinnaraj Vs Sheik Davood Nachiar) 2003(2) Civil Court Cases 668 (Madras) 

Part performance – Agreement to sell – Possession delivered – Defendant refused to pay interest on the amount due as provided for in the agreement – Defendant can therefore be held to be not ready and willing to perform her part of contract under the agreement and also set up a false claim of making some payments under the agreement which is not substantiated – Held, defendant cannot therefore claim protection of her possession u/s 53-A of the Act. Property dispute lawyer in Mumbai (Moparthi Sarojini Devi Vs Kavuru) 2003(1) Civil Court Cases 559 (A.P.)  

Part performance – Agreement to sell – Vendee failing to pay remaining consideration amount – Merely taking plea of part performance is not sufficient without any act showing his willingness to pay – Having kept mum for more than three years, he cannot be heard to say that he was ready and willing honestly to perform his part of contract. (Smt.Sunder Bai & Ors. Vs Nonit Ram) 2004(2) Civil Court Cases 173 (M.P.)

Part performance – Essential features are: (i) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, (ii) that the transferee has performed or is willing to perform his part of the contract, and (iii) that the plea of part performance is not available to be raised against a transferee for consideration who has no notice of the contract or of the part performance thereof. Property dispute lawyer in Mumbai (D.S.Parvathamma Vs A.Srinivasan) 2003(1) Apex Court Judgments 667 (S.C.) : 2003(2) Civil Court Cases 690 (S.C.) 

Part performance – In order to avail protection of S.53-A a transferee, apart from satisfying other conditions, (i) must in part performance of the contract take possession of the property or any part thereof; and (ii) must have done some act in furtherance of the contract. (Secretary, Communist Party of India (Marxist), Ganjam, Berhampur represented by Alikishore Patnaik   Vs Judhistira Patnaik (since dead) and after him Hemalata Patnaik & Ors.) 2004(2) Civil Court Cases 683 (Orissa)

Part performance – To claim benefit under the provision the claimant has to prove an agreement in writing and that he has either taken possession of disputed property in whole or in part and if he was already in possession he has continued with his possession and has done some act in furtherance of contract – He has also to prove that he has either performed or is ready and willing to perform his part of the contract – When such acts are established only then claimant can be said to have established his claim under S.53-A. (S.Veerabadra Naicker Vs S.Sambanda Naicker) 2003(1) Civil Court Cases 467 (Madras) 

Part performance – To seek protection of the provision it is to be established that (i) that in part performance of the contract, he has taken possession of the property or if he being already in possession of the property or if he being already in possession continues in possession of the same; (ii) that he has done some act in furtherance of the contract; and (iii) that he has performed or is willing to perform his part of the contract. (Harkaran Singh & Ors. Vs Financial Commissioner Haryana) 2003(3) Civil Court Cases 622 (P&H) 

Part performance – Transferee in possession under agreement to sell by satisfying all conditions of the provision – Can protect his possession even if he has not filed suit for specific performance of contract and thereby disabled himself for acquiring legal title. (M/s Chetak Constructions Limited Vs Om Prakash & Ors.) 2003(3) Civil Court Cases 477 (M.P.) 

Part performance – Transferee in possession under agreement to sell by satisfying all conditions of the provision – He can seek protection of his right irrespective of the fact whether he comes to Court as plaintiff or as a defendant. (M/s Chetak Constructions Limited Vs Om Prakash & Ors.) 2003(3) Civil Court Cases 477 (M.P.) 

Sale of property on basis of power of attorney, agreement to sell, affidavit and will – On receipt of entire sale consideration amount power of attorney executed in favour of vendee and he put into possession of the premises – Contract of sale of immovable property though does not create any interest in or charge on such property yet where a contract of sale is not a mere agreement to sell but more than that because practically the transaction was complete in all respect except the execution of regular sale deed and registration thereof, such contract of sale definitely creates an interest in the property and the same is protected u/s 53-A of TPA. Property dispute lawyer in Mumbai (Jeet Kumari Vs Girdhari Lal) 2003(3) Civil Court Cases 239 (P&H) 

Simplicitor suit for injunction seeking protection under S.53-A of Transfer of Property Act is maintainable. (Sadashiv Chander Bhamgare Vs Eknath Pandharinath Nangude) 2004(3) Civil Court Cases 220 (Bombay)

Tenant – Agreement to sell – Part performance – Sale deed was to be executed on payment of balance consideration amount – No execution of sale deed – Notice terminating tenancy – Tenant not adducing any evidence to show that he was willing to pay balance consideration nor he asserted in pleading that he demanded specific performance within stipulated time in manner known to law – Mere continuous possession of tenant in suit premises even after entering into agreement would not by itself amount to part performance – Provisions under S.53-A TPA cannot be invoked by the tenant. (Chinnaraj Vs Sheik Davood Nachiar) AIR 2003 Madras 89

Sale deed – Tangible immovable property of value less than one hundred rupees – Transfer can be either by registered instrument or by delivery of property – When possession is delivered sale would be valid and enforceable. (Ram Chandra Vs Hari Kirtan) AIR 2004 Allahabad 345

Sale deed – Cancellation – Sale deed proved to be fraudulently executed by defendant without consent and knowledge of owner – Sale deed cancelled – No interference. Property dispute lawyer in Mumbai (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Agreement to sell – Omission to frame issue whether time is of essence of contract – Not fatal, unless it affects disposal of case on merits. (K.Ramakrishnan Vs Siddhammal) AIR 2002 Madras 241

Immovable property – Can only be effected by registered document – Mere making agreement of sale or execution of power of attorney – Would not transfer right, title or interest in immovable property. (G.Ram Vs Delhi Development Authority) AIR 2003 Delhi 120

Sale – A document can be executed even if part of the sale consideration is promised to be paid in future – If from recitals in the sale deed it appears that title would pass after payment of consideration, the inference would be that until consideration is paid, there is no transfer – However,  if it appears that passing of title is not depending upon the passing of consideration and that the vendor intend to pass title without receipt of consideration, the document must be held to be one conveying title – The real test is the intention of the parties. Property dispute lawyer in Mumbai (Ajmer Singh & Ors. Vs Nishi Kumar) 2004(2) Civil Court Cases 30 (P&H)

Sale – By illiterate lady – Consideration – Third party raising objection as to non passing of consideration whereas executant of sale deed never denied receipt of sale consideration – Objection not entertained and sale deed held to be not without consideration. (Guneshwar Tatma Vs Manbodh Sharma) 2003(3) Civil Court Cases 263 (Patna) 

Sale – By illiterate person – Not read over to executant – In his evidence it was stated that it bears his thumb mark – Sale deed cannot be said to be proved in accordance with law. (Santoo Vs Jagannath) AIR 2004 Allahabad 131

Sale – To constitute sale it is not necessary that at the time of execution of the sale deed, the entire price of the sale should have been paid – The transfer of ownership should be in exchange for a  price paid or promised or part-paid and part-promised. (Ajmer Singh & Ors. Vs Nishi Kumar) 2004(2) Civil Court Cases 30 (P&H)

Sale deed – Executed by Karta of Hindu Joint Family when plaintiff was minor – Plaintiff has right to challenge sale deed in toto – Sale deed cannot be held valid against karta and other members of joint family who had executed the same alongwith father. (Dev Kishan Vs Ram Kishan) AIR 2002 Rajasthan 370

Sale deed – Part payment to be made in future – Balance amount not paid as agreed – Notice not issued – Conduct of plaintiff shows that intention of parties was only to transfer the land in question – Merely because part payment, as agreed, not paid, it cannot be said that title did not pass vide registered sale deed particularly when possession was delivered at the time of execution of registered sale deed – Only remedy available to the vendor is to sue for consideration. Property dispute lawyer in Mumbai (Ajmer Singh & Ors. Vs Nishi Kumar) 2004(2) Civil Court Cases 30 (P&H)

Sale deed – Part payment to be made in future – Recital in sale deed that if the remaining sale consideration was not paid by a particular date the sale will be deemed to be cancelled – Held, it does not by itself reflect the true intention of the parties that plaintiff did not want to transfer the land in question and if that would have been the intention, then after expiry of that particular date plaintiff would have issued a notice that since they have failed to pay part of the sale consideration, as agreed by them, therefore, the sale in question was liable to be cancelled. (Ajmer Singh & Ors. Vs Nishi Kumar) 2004(2) Civil Court Cases 30 (P&H)

Sale deed – Setting aside – Parties belonged to scheduled tribe namely ‘bodh’ – Female to hold property till her life time or till she remarried according to tribal custom – Remarriage of defendant proved – Property would revert back to plaintiff who was collateral of her husband – Decree for setting aside sale deed – Legal. (Smt.Sonam Dolma Vs Phunchog Angrup) AIR 2002 H.P. 77

Sale deed – Validity – Vendor accepted part consideration – Agreement to receive balance consideration on fulfilment of certain conditions – No default clause in sale deed stipulating its cancellation on failure of vendee to pay balance consideration – Transfer voluntary – Sale deed is valid. (Murari Ganguly Vs Kanailal Garai) AIR 2003 Calcutta 105

Sale deed of entire property of vendor – Four anna share of vendor never questioned by anybody – Held, purchaser entitled to four anna share of vendor. Property dispute lawyer in Mumbai (Guneshwar Tatma Vs Manbodh Sharma) 2003(3) Civil Court Cases 263 (Patna) 

Minor’s property – Sale by general power of attorney holder – Would not be a person competent in law to contract – Permission to sell not obtained – Therefore no valid title could be transferred. (Lakhwinder Singh Vs Miss Paramjit Kaur) 2004(2) Civil Court Cases 82 (P&H)

Rights and liabilities of buyer and seller – Appellants-plaintiffs, builders and developers entered into an agreement with defendants to sell landed property owned by respondents – On execution of agreement appellants paid a sum of Rs.38 lakhs as deposit or earnest money – Respondents did not perform their part of contract for nearly five years and expressed their inability to filfill the terms within time – Appellants opted to terminate the agreement and demanded return of Rs.38 lakhs with interest at the rate of 21% per annum – Held, defendant is liable to refund the money with interest due thereon. Property dispute lawyer in Mumbai (Videocon Properties Ltd. Vs Dr.Bhalchandra Laboratories & Ors.) 2004(1) Apex Court Judgments 106 (S.C.) : 2004(2) Civil Court Cases 23 (S.C.)

Agreement to sell – Mere agreement to sell does not confer any title on purchaser – Title continues to vest with owner even after execution of agreement – Purchaser in possession of property as tenant is liable to pay rent to owner of property. (Shiddappa Vs Ramanna) AIR 2002 Karnataka 416

Mortgage by deposit of title deeds – When a person delivers to a creditor documents of title to immovable property with intention to create a security thereon, the transaction is called mortgage by deposit of title deeds – Deposit can be made personally or constructively. (Indian Bank, Chittoor Vs V.R.Venkataraman & Ors.) 2004(2) Civil Court Cases 491 (A.P.)

Mortgage by deposit of certified copy of title deeds –  Not accepted by bank – Memorandum of deposit of title deed executed and registered – Proof of such document –  Said document specifically denied by executant – One attesting witness at least required to be examined to prove the said document – In absence of such positive evidence to prove execution of deed, Court, held is justified in dismissing Bank’s suit based on such unproved deed of mortgage. (Syndicate Bank Vs M.Sivarudrappa) 2003(3) Civil Court Cases 81 (Karnataka) 

Sale with condition of repurchase – Suit for specific performance by vendor for reconveyance of property – Sale of property for Rs.3,000 with condition that vendee to reconvey property to vendor if latter repays Rs.5,000 to vendee within five years from date of sale – Held, vendor though performed his part of contract but he is not entitled to relief of specific performance as vendee had already sold property to third party and right of such third party bona fide purchased had intervened. Property dispute lawyer in Mumbai (V.S.Munirathnam (Deceased) by L.Rs Vs P.Sundaram (Deceased) by L.Rs  & Anr.) 2004(2) Civil Court Cases 675 (Karnataka)

Mortgage by conditional sale and sale with a condition of repurchase – Distinction – In a mortgage, debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement – There does not exist any debt and no right to redeem is reserved thereby – An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon – Proviso to S.58(c), however, states that if the condition for re-transfer is not embodied in the document  which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. (Umabai & Anr. Vs Nilkanth Dhondiba Chavan (Dead) by Lrs. & Anr.) 2005(1) Apex Court Judgments 681 (S.C.) : 2005(2) Civil Court Cases 445 (S.C.)

 Usufructuary mortgage – Redemption – Although by reason of preliminary decree Court may fix time for payment of the amount declared due but default in depositing such payment does not debar him from a right to redeem the mortgaged property. (Achaldas Durgaji Oswal (Dead) Through L.Rs. Vs Ramvilas Gangabishan Heda (Dead) Through L.Rs. & Ors.) 2003(1) Apex Court Judgments 262 (S.C.)

Equitable mortgage by deposit of title deeds – Place of creation of mortgage not disclosed in plaint – Plaintiff in his evidence also not speaking about the place of deposit of title deeds – Witnesses of plaintiff not inspiring confidence – Decree against mortgaged property not sustainable. Property dispute lawyer in Mumbai (K.Natarajan & Anr. Vs K.Muthusami) 2003(1) Civil Court Cases 694 (Madras) 

Mortgage – By deposit of title deeds – Intention that title deeds shall be security for debt is essence of transaction. (M.M.T.C.Ltd. Vs S.Mohamed Gani) AIR 2002 Madras 378

Mortgage to tenant – Tenancy rights not relinquished – On redemption of mortgage tenancy rights of mortgagee-tenant will continue and as such mortgagor is not entitled to recovery of possession – There is no automatic merger of mortgage and pre-existing lease and two operate independent of each other and on redemption of mortgage, lease would revive unless there is express or implied surrender of lease. (K.S.Srinivas Vs V.Ramkumar & Ors.) 2004(2) Civil Court Cases 467 (Karnataka)

Mortgage – Redemption – Limitation – Failure to pay mortgage money and redeem suit land – On expiry of 60 years suit by mortgagee for declaration of ownership – Rate of interest more than allowable in law – Accounts not rendered – Plaintiff had recovered more than double the amount advanced – Mortgagee enjoyed fruits of land and thus deemed to have been redeemed during limitation – Procedure of foreclosure not followed thereby injustice done to mortgagor – Terms of mortgage operate as clog on equity of redemption – As mortgage debt apparently stood fully discharge so plaintiff is not entitled to any relief. (Samadh Baba Narain Das Vs Surta) AIR 2002 P&H 108

Mortgage – Redemption – Earlier suit decreed in respect of some items only – Second suit for redemption filed in respect of other items – Not barred by res judicata. (Tulajappa Vs Subhas) AIR 2003 Karnataka 118

Usufructuary mortgage – Redemption – Suit by mortgagor – Preliminary decree passed – Amount declared thereunder not paid within time fixed by paid thereafter – Held, mortgagor is not debarred thereby from exercising his right to redeem mortgage, unless that right is otherwise extinguished by act of parties or decree of Court. (Ramvilas G.Heda Vs Achaldas D.Oswal) AIR 2002 Bombay 133

Mortgage – Redemption – Mortgage deed providing for redemption at any time after expiry of five years from date of execution of mortgage but providing for delivery of possession only after Caitrapadya day obviously to enable the mortgagees to harvest the crop and to deliver possession – Such stipulation cannot be construed as clog on redemption invalidating mortgage – Mortgage deed executed on 10.6.1940, right to redeem accrued on 10.6.1945 – Suit for redemption filed in 1978 – Held, suit is barred by limitation. (Jahansaheb Muslhuddin Dundge Vs Sadroddin Imamsaheb Pinnitod & Ors.) 2004(2) Civil Court Cases 118 (Karnataka)

Redemption – Clog on equity of redemption – Mortgage for 99 years and mortgagee having right to effect improvements and entitled to recover the expenses at the time of redemption alongwith interest at the rate of 1% p.m. – Such clauses operate unfairly and unjustly against the right of redemption of the mortgagor and the same are a clog on the equity of redemption – Suit for possession by way of redemption rightly decreed by Courts below. Property dispute lawyer in Mumbai (Mukhtiar Singh (Dead) through LRs. Vs Gurmej Singh) 2005(1) Civil Court Cases 546 (P&H)

Improvements – Value of – Spending for the preservation shall not be deemed necessary unless the mortgagor has been called upon and has failed to take timely steps to preserve the property. (Sarada Bai Vs Suresh Chander Chawhan) 2004(2) Civil Court Cases 670 (Kerala)

Hypothecation of goods – Loos in bank’s godown – No evidence that there was no negligence of Bank – Bank raising plea that goods were only under bailment and it was not responsible for loss of goods – Cannot be accepted – Exclusion clause in letter by borrower that goods will be stored in bank’s godown at risk and responsibility of borrower would not apply as it means only ordinary care which bailee has to take and does not take into account negligence – Held, bank is liable for loss of goods in its possession. (Canara Bank Vs Bhavani Oil Co.) AIR 2004 Kerala 273

Hypothecation of movables – Amounts to mortgage – Loss of goods – Held, there is presumption if the goods are lost that it was because of the negligence of the party, who stored the goods. (Canara Bank Vs Bhavani Oil Company) 2004(2) Civil Court Cases 479 (Kerala)

Mortgage to tenant – Redemption of mortgage – Tenancy rights are revived as rights of lessee do not merge in rights of mortgagee, except where there is intention of parties to the contrary – Where parties have not intended to terminate lease at time of mortgage, tenant-mortgagee is entitled to continue in possession as tenant by paying rent at agreed rate. (M.C.Venkateshappa Vs K.N.Sadashivaiah) 2005(1) Civil Court Cases 161 (Karnataka)

Redemption of mortgage – Auction purchaser – Has right to file suit for redemption of mortgage being successor-in-interest. (Pranil Kumar Sett Vs Kishorilal Bysack) AIR 2003 Calcutta 1

Agent can induct a person as a licensee for which no registered power of attorney is required as creation of licence does not amount to any transfer of right in the property and the same is not required to be carried out by virtue of a registered power of attorney. Property dispute lawyer in Mumbai (Kamlesh & Ors. Vs Jasbir Singh) 2004(2) Civil Court Cases 181 (P&H)

Lease and Licence – Difference – Difference between a ‘lease’ and ‘licence’ is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances – Conduct of the parties before and after the creation of relationship is of relevance for finding out their intention. (C.M.Beena & Anr. Vs P.N.Ramachandra Rao) 2004(1) Apex Court Judgments 362 (S.C.)

Lease or licence – House given to wife’s brother for management who gave lower portion of the house to one in his brotherhood – House was to be vacated on mere asking and rent was not chargeable – Held, it amounts to licence and not lease. Property dispute lawyer in Mumbai (Kamlesh & Ors. Vs Jasbir Singh) 2004(2) Civil Court Cases 181 (P&H)

Lease or licence – If any interest on immovable property entitling the transferee for enjoyment is created, the same is lease and not a licence – If permission to use the land without exclusive possession alone is granted, the same amounts to licence. (Panamukkili Sreenivasan Vs Kolakkat Muhammed Ismail & Anr.) 2004(2) Civil Court Cases 99 (Kerala)

Lease or licence – Shop allotted and complete possession given to allottees – Agreement styled as ‘Kirayanama’ i.e. lease deed – Allottees required not to part with possession and not to sublet – User restricted only as shop – Shop required to be maintained in good condition and not to cause any damage and no material construction allowed – Allottees required to vacate shop on expiry of one month notice if given to them and allottees to pay penal rent in case of failure to vacate – Amount payable by allottees termed as rent – Held, agreement is a lease deed and not a licence deed. (State of Rajasthan Vs Municipal Council) 2003(2) Civil Court Cases 55 (Rajasthan) 

Lease – In favour of a proposed company never incorporated – Invalid – Promoters of Company forming partnership firm – Cannot claim any right or interest in property said to have been leased – S.15(h) of Specific Relief Act not applicable. (Murari Ganguly Vs Kanailal Garai) AIR 2003 Calcutta 105

Lease – Misrepresentation and undue influence – Lessor illiterate, old and sick lady – Lease whether for one year or for 99 years – Facts showing that there was no consideration paid for execution of lease for 99 years – Consideration of lease only Rs.2,500/- per annum as against lease amount of Rs.20,000/- p.a. which lessor used to earn from earlier lessee – Lessee son of lessor’s real brother to prove that lease was for 99 years not free from any blemish or infirmity – Lessee being in position to dominate will of plaintiff extracted execution of lease for 99 yeas through its contents were never read over to plaintiff – Further transaction was unconscionable as it was executed for 99 years for meagre amount – Held, undue influence was exercised by defendant – Thus transaction was hit by S.16 of Contract Act. (Hamelo Vs Jang Sher Singh) AIR 2002 P&H 147

Lease for 99 years – By Mohitmim of land of smadh – Not permissible. (Harji Vs Smadh Baba Vijay Ram Chela Mangal Dass) 2003(2) Civil Court Cases 648 (P&H) 

Lease of licence – Deed not creating any right or interest in premises in favour of licensee and deed providing that premises would be deemed to continue in possession of licensor – Arrangement between parties renewed from time to time beyond initial period of eleven months – Parties though aware of state of law as Rent Control Act being in existence at that time, chosing to call arrangement as licence – Held, it was licence and not lease. (Peter Alex D’Souza Vs Prithi Paul Singh) AIR 2002 Bombay 471

Lease or licence – No agreement between parties produced to show nature of possession of defendant or payment of rent by him – No document placed on record reflecting intention of plaintiff that lease was sought to be created in favour of defendant – Concurrent finding of fact that defendant was licensee and was liable to be ejected not liable to be interfered in second appeal. (Darshan Kumar Sharma Vs Vimal Bansal) AIR 2004 P&H 129

Tenancy – Proof – Payment of house tax – Defendant alleged to be licensee whereas he claiming to be a tenant – Payment of house tax in which defendant is shown to be a tenant – Held, payment of house tax by a person in possession of house is a unilateral act which is not sufficient to prove his tenancy. (Kamlesh & Ors. Vs Jasbir Singh) 2004(2) Civil Court Cases 181 (P&H)

Unauthorised structures continuing in existence for considerable length of time – Grant of licence cannot be inferred from aforesaid fact. (State of Sikkim Vs Pachey Khampa and others) AIR 2002 Sikkim 5

Rent receipt – Admissibility – Receipt in question handwritten and attested by two witnesses whereas other receipts were typed and not attested by witnesses – Attesting witnesses of receipt are such witnesses who would support the plea, right or wrong, honest or dishonest, of defendant – Account books not produced to show payment – Attorney not produced in Court – Held, rent receipt is not believable. (Ram Sarup (deceased) through LRs. Vs Sat Pal Suri ) 2005(1) Civil Court Cases 12 (P&H)

Composite notice u/s 106 TPA and u/s 80 CPC is valid and separate notices under the two provisions is not required. Property dispute lawyer in Mumbai (Chandra Bhan Gupta Vs VII Addl. District Judge, Agra & Ors.) 2005(1) Civil Court Cases 583 (Allahabad)

Composite notice u/s 106 TPA & S.80 CPC  – Composite notice is permissible provided it contains the ingredients of both the provisions of law. (Kamla Bakshi Vs Union of India & Ors.) 2004(3) Civil Court Cases 145 (J&K)

Notice – Sent as per registered post – ‘Refused’ – There is presumption of service of notice – Putting of postal rubber stamp as ‘refused’ under S.14 of Post Office Act is not mandatory – Evidence of postman who made the endorsement not untrustworthy – Held, presumption, though rebuttable, not rebutted in the case – Service of notice, held, valid. (Ravi Raghu Ramaiah Vs Koneru Rama Tulasamma) 2004(3) Civil Court Cases 356 (A.P.)

Notice sent as per registered post – Received back with postal endorsement “unclaimed” – There is presumption of service of notice – Contention of addressee that he was away – Not tenable – It is for the tenant to make necessary arrangement to receive the notice addressed to him in his absence at the suit premises. (David K.N. Vs S.R.Chaubey) 2003(3) Civil Court Cases 569 (Bombay) 

Manufacturing lease which is not from year to year does not require six months notice for termination – It falls in the second half of S.106 requiring fifteen days notice of termination. (Sir Inder Sain Bedi (Dead) by Lrs. Vs M/s.Chopra Electricals) 2004(2) Apex Court Judgments 430 (S.C.) : 2004(3) Civil Court Cases 432 (S.C.)

Manufacturing process – Bar and restaurant – Raw products taken and eatables sold – Held, it amounts to manufacturing process within meaning of S.106 TPA. Property dispute lawyer in Mumbai (M/s Oasis Bar and Restaurant Vs Smt.P.Umabala) AIR 2002 A.P. 465

Monthly tenancy – Does not cease to be monthly tenancy merely because rent is recovered quarterly, half yearly or yearly. (Harishchandra Dhondusheth Khude Vs Shri Vithoba Rakhumai Devsthan Public Trust, Dehu) 2004(3) Civil Court Cases 118 (Bombay)

Notice – By Corporation – Notice not containing signatures of any of the employees of Corporation – Notice cannot be said to be duly served – On the other hand Corporation showing that it was put in possession on a later date other than date from which arrears are claimed – Thus even if notice is presumed to be served the action for rent would not be maintainable as the lessor has failed to prove the delivery of possession from date in question – That apart claim for arrears would amount to unjust enrichment attracting Ss.69 and 70 of Contract Act. ((R.Baskar Bhat Vs Hindustan Petroleum Corporation Ltd.) AIR 2002 Madras 330

Notice – Issued to one legal heir acting on behalf of other legal heirs – It is a valid notice. (Mohd.Ibrahim Vs Managing Committee of Masjid-e-Khursheed Jah) 2003(3) Civil Court Cases 581 (A.P.) 

Notice – No objection in written statement as to form and contents of notice – Held, tenant is deemed to have waived any objection as to non compliance of S.106. (Yelamati Vs Vejju) AIR 2002 A.P. 369

Notice – Objection as to invalidity or infirmity of notice – Should be raised specifically and at the earliest – Else it will be deemed to have been waived even if there exists one. (Parwati Bai Vs Radhika) 2003(2) Apex Court Judgments 14 (S.C.)

Notice – Premises leased out to nine companies through one person – Companies would be considered joint tenants – Notice to terminate the lease to one of the joint tenants is sufficient. (M/s.V.K.Sood Engineers and contractors Pvt. Ltd.,  Vs Manpal Singh) 2003(1) Civil Court Cases 274 (P&H) 

Notice – Registered notice received back with postal endorsement “unclaimed” – There is presumption of service – Rebuttal – Statement on oath regarding non receipt of notice is not sufficient to rebut service – Addressee should place some material to rebut service – There is no hard and fast rule as regards the material which is required to rebut the presumption and in a given case even unchallenged testimony may be sufficient to rebut the presumption, unless the testimony is found to be inherently unreliable. (David K.N. Vs S.R.Chaubey) 2003(3) Civil Court Cases 569 (Bombay) 

Notice – Rent deed providing that whenever landlord demanded possession of the property then tenant will hand over the vacant possession – Thus there is specific relinquishment of right of the tenant of benefit of S.106 TPA –  No notice to quit is required to terminate the tenancy.   (Kailash Chandra & Ors. Vs Rekha & Ors.) 2004(2) Civil Court Cases 29 (Rajasthan)

Notice – Service by affixation at suit premises  – Notice can be served by affixation at suit premises when the tender or delivery of notice either by post or by tendering or delivering the same personally to the addressee is found to be impracticable. (David K.N. Vs S.R.Chaubey) 2003(3) Civil Court Cases 569 (Bombay) 

Notice – Termination of tenancy – Notice sent by some co-owners – Tenancy not validly terminated – Ratification of action of sending such notice by remaining co-owners in their affidavit to suit for eviction – Not material. (Sucharita Pradhan Vs U.P.Twiga Fiberglass Ltd.) AIR 2002 Delhi 1

Notice – To precede before institution of suit – Notice served on tenant during pendency of suit – Is of no help to plaintiff landlord. (Sucharita Pradhan Vs M/s U.P.Twiga Fibreglass Ltd.) AIR 2002 Delhi 1

Notice – Waiver – Acceptance of demand draft after issuance of notice – Cannot constitute waiver of right to seek eviction as there is no evidence to show that landlady treated the lease as subsisting and as she accepted the demand draft towards damages for use and occupation and not as rent. Property dispute lawyer in Mumbai (Ravi Raghu Ramaiah Vs Koneru Rama Tulasamma) 2004(3) Civil Court Cases 356 (A.P.)

Quit notice – Lease deed not admissible in evidence for want of stamp duty and registration – No other express contract stipulating conditions for termination of tenancy – Building taken on rent to run a school – Lease deemed to be lease from month to month – Quit notice issued on 20.6.1983 received by tenant on 22.6.1983 which stipulated that tenancy is terminated on the expiry of 15.7.1983 being the end of the tenancy month of June-July, 1983 – Quit notice held to be valid. (Chaitanyabala Vs Kalika Joshi, rep. by G.P.A.) 2003(3) Civil Court Cases 488 (A.P.)

Splitting of tenancy – Respondent permitted to use potion shown in red as a licencee for a period of 11 months – Portion shown in green not forming part of tenancy – In plaint a specific averment made of taking a portion comprising of hall, 3 office cum store rooms and toilet on ground floor and two mezzanine halls in mezzanine floor – Accommodation show in licence deed is the same which is mentioned in plaint and decree claimed for this portion – Held, there is no splitting of tenancy. (Sir Inder Sain Bedi (Dead) by Lrs. Vs M/s.Chopra Electricals) 2004(2) Apex Court Judgments 430 (S.C.) : 2004(3) Civil Court Cases 432 (S.C.)

Written lease providing for two months notice for termination of tenancy – Tenancy determined by efflux of time – Tenant holding over the property thereafter – Tenancy from month to month according to English calendar month – 15 days notice sufficient to terminate tenancy. (Prithvi Raj Bhalla Vs M/s Industrial Cables (India) Ld.) AIR 2002 Delhi 539

Lease – Termination – Notice – Oral and monthly lease for manufacturing purpose – No document of lease produced – Period of notice for termination of lease would of 15 days and not six months. (M/s Oasis Bar and Restaurant Vs Smt.P.Umabala) AIR 2002 A.P. 465

Waiver of notice – Suit for recovery of arrears of rent and for possession filed by landlord after determination of tenancy by quit notice – Money order sent by tenant during pendency of suit without indicating any period for which money order was sent – Appropriation by landlord towards arrears of rent would not constitute waiver of notice to quit and to treat the tenancy as subsisting. (Haribhau  Vs Raju & Ors.) 2004(3) Civil Court Cases 713 (Bombay)

Lease – Memorandum of oral lease of immovable property not exceeding one year accompanied by delivery of possession does not require registration – Lease of immovable property not exceeding one year effected by oral agreement accompanied by delivery of possession – Subsequently terms of lease, settled between parties, reduced to writing – Such a memorandum of past transaction of oral lease does not require compulsory registration. (Kothapalli Sreeramulu & Co.,  Vs Krishna Gur) 2003(2) Civil Court Cases 379 (A.P.) 

Document whether a mortgage deed or rent deed – Relevant terms of the document were : (i) mortgagee will not sub let the shop; (ii) Mortgagee will not make any addition or alteration in the shop in question and that tenure of mortgage will be 10 years; (iii) mortgagor will not be entitled to get the shop vacated before the expiry of 10 years; (iv) mortgagee will be liable to pay all taxes – Plaintiff earlier suffered protracted litigation with tenants thought of a device to override the provisions of Rent Act and gave the shop to defendant by executing a document described as mortgage deed though in fact it was creation of a tenancy. Property dispute lawyer in Mumbai (Banarsi Dass Vs Gian Chand) 2005(1) Civil Court Cases 292 (P&H)

Lease for 5 years with renewal clause by mutual agreement – Lease renewed for two terms and every time fresh lease deed executed – This does not create lease for indefinite period. (W.H.Deeth (Ballabhgarh) & Co. Vs Punjab National Bank) 2003(2) Civil Court Cases 701 (Delhi) 

Tenancy in respect of building alone – Destruction of building – Tenancy will be terminated – Tenant cannot put up structure upon land where building stood without consent of landlord. (Puthukkattil Parangodan Vs Puthukkattil) AIR 2002 Kerala 221

Tenancy – Building completely destroyed – Tenant has no continuing and subsisting right under lease – Landlord however, can claim recovery of possession of land only through civil Court of competent jurisdiction – Cannot trespass upon land on ground that lease is terminated. (Puthukkattil Parangodan Vs Puthukkattil) AIR 2002 Kerala 221

Repair of tenanted premises – Tenant has a right to effect repairs – Provision in the Rent Act that tenant can seek repairs from landlord does not take away right of tenant to effect repairs himself – Landlord cannot claim injunction restraining tenant from reconstructing roof of tenanted premises. (Saroj Dwivedi Vs ADJ) AIR 2003 Allahabad 315

Co-owners – One co-owner let out the shop without consent of other co-owner – Partition of shop – A portion of share fell to share of other co-owner – Later owner is entitled to khas possession of portion which fell to his share – Protection of Rent Act is not available to the tenant. (Haryana Urban (Control of Rent and Eviction) Act, 1973, Ss.13, 2(c). (Yashpal Vs Ram Bilas) 2003(1) Civil Court Cases 175 (P&H)

Co-owners – Partition – Tenant cannot prevent partition of tenanted premises among owners – However, it is open to tenant to say that partition is not bonafide and is a sham transaction to overcome the rigours of Rent Control Laws which protect the eviction of tenants. (Haryana Urban (Control of Rent and Eviction) Act, 1973, Ss.13, 2(c). (Yashpal Vs Ram Bilas) 2003(1) Civil Court Cases 175 (P&H) 

Mortgage – Recital in mortgage deed that mortgagor will be entitled to future rent after redemption of mortgage means that tenancy is to subsist after redemption – Mortgagor thus accepted the continuation of the tenancies created by mortgagee – Tenancy thus created would subsist even after redemption of mortgage – From the date of redemption tenancy which was earlier under the mortgagee would be deemed to be under the mortgagor. (Nand Singh Vs Mula Singh & Ors.) 2004(3) Civil Court Cases 393 (P&H)

Mortgage – Tenancy created by mortgagee come to an end on redemption of mortgaged property unless the mortgage deed expressly records that a tenancy created by a mortgagee would subsist even after redemption. (Nand Singh Vs Mula Singh & Ors.) 2004(3) Civil Court Cases 393 (P&H)

Tenant – Laying pipe line in suit premises for supply of drinking water – Does not amount to an act injurious to building. (Chandrasekharan Vs Alexandar) AIR 2003 Kerala 95

‘Parting with possession’ – Not confined to sale, transfer or assigning – It also includes the case of sub-letting. (M/s Rajandheer (India) Pvt.Ltd. Vs Delhi Development authority) AIR 2004 Delhi 208

Ejectment petition – Filed by one of co-owners – Such co-owner was landlord of premises a rent of premises was paid to him by tenants – Tenants also admitted him to be one of co-owners and thus co-landlord – Suit maintainable. (Smt.Krishna Prakash Vs Dilip Harel Mitra Chenoy) AIR 2002 Delhi 81

Eviction of landlord by paramount title holder – Effect on eviction – Premises allotted to landlord by Development Authority – Eviction decree obtained by landlord – Plea of tenant that during pendency of appeal premises resumed by Development Authority and so eviction decree be set aside – Not tenable when resumption has not become final and as the subsequent event of resumption not brought to notice of Court as per established rules of procedure. (Om Prakash Gupta Vs Ranbir B.Goyal) AIR 2002 S.C. 665

Denial of lessor’s title – Where lessee has renounced his character as lessee by setting up title in himself by claiming adverse possession against lessor’s title, lessee is estopped from claiming protection under Rent Act – Suit by lessor for declaration and recovery of possession is maintainable and he cannot be directed to approach Rent Court for relief. (Mohammad Jaffar Vs Munafsab) 2003(2) Civil Court Cases 441 (Karnataka) 

Suit for possession based on Clause (a) of S.111 laying down that a lessee of immovable property determines by efflux of time limited thereby – No case of forfeiture u/s 111(2)(g) made out – Notice by lessor to lessee of his intention to determine the lease served – S.111(2)(g) not applicable – Plaintiff not entitled to decree on ground of determination of lease by forfeiture. (Union Bank of India Vs Vithalbhai Pvt.Ltd.) AIR 2002 Calcutta 144

Notice to quit – Waiver – Mere act of lessor showing an intention to treat the lease as subsisting is not sufficient to constitute waiver – That action must have the express or implied consent of the lessee whose consent to the act must exist – For such an inference there must be a clearest indication that the recipient of the notice intended and consented to have the notice to him waived and an agreement on the part of both in respect of such waiver. Property dispute lawyer in Mumbai (Rambhau & Ors. Vs Mangtulal & Anr.) 2004(2) Civil Court Cases 495 (Bombay)

Notice – Waiver – Acceptance of rent after period of termination of tenancy – Does not amount to waiver – There must be some intention of waiver – Landlord actively prosecuting suit for ejectment filed by him – It cannot be inferred that notice has been waived. (Union of India Vs Sudarshan Lal Talwar) AIR 2002 Allahabad 212

Tenancy – Forfeiture – Lessor not coming to Court with clean hands and committing default in handing over possession immediately after execution of lease agreement – Lease agreement providing that there should be continuous failure in payment of rent to constitute forfeiture – Payment of entire arrears by lessee immediately after receipt of notice entitles to claim benefit of S.114. (R.Baskar Bhat Vs Hindustan Petroleum Corporation Ltd.)  AIR 2002 Madras 330

Applicability of the provision – (i) There must be a determination of lease (2) After the determination of lease, the lessee must be in possession; (3) Owner should receive the rent – Only in compliance of all the three conditions the lessee should be deemed to be holding over. (Palani Municipal Council Vs C.Sadasivam) 2003(3) Civil Court Cases 326 (Madras) 

Exchange deed – Evidence that such deed was executed to compromise criminal proceedings – Deed of exchange of properties was to be obtained from registration office only after criminal cases were compromised – Such deed is hit by S.23 of Contact Act – Not a valid contract. (Srihari Jena Vs Khetramohan Jena) AIR 2002 Orissa 195

Exchange deed – Not compulsorily registerable in Punjab as S.118 TPA is not applicable to the State of Punjab – In Punjab even oral exchange is permissible. (Kishori Lal Vs Babu Ram) 2003(2) Civil Court Cases 321 (P&H) 

Exchange – Plaintiff taking property in exchange – Third party taking its forcible possession and plaintiff thus losing his possession – Not a case of defect in title – Section 119 does not apply. (T.Bhaskara Rao & Anr. Vs Tangella Mudi Gabriel & Anr.) 2004(2) Civil Court Cases 282 (A.P.)

Exchange – Property taken in exchange – Third party taking its forcible possession – Plaintiffs thus losing their possession – Not a case of defect in title – S.119 does not apply. (T.Bhaskara Rao Vs Tangella Mudi Gabriel) AIR 2004 A.P. 106

Gift – Condition that donee will not alienate property during lifetime of niece of donor since she was given right to possession of property till her death – Cannot be imposed in view of Ss.10 & 11. (Gorachand Mukherjee Vs Malabika Dutta) AIR 2002 Calcutta 26

Conditional gift deed – Validity – Donor retaining possession and enjoyment right and also right to mortgage the property during his life time – No evidence of acceptance – Later on gift deed cancelled and sale deed executed in favour of others – In absence of a valid divesting of the absolute right of the donor in favour of the donee before the death of donor it cannot be said that there was a valid gift. Property dispute lawyer in Mumbai (Omana Vs Kesavan) 2005(2) Civil Court Cases 295 (Kerala)

Gift – Acceptance – Donee taking several positive steps towards exercising his right of ownership – Amounts to acceptance – Provision is complied. (Gorachand Mukherjee Vs Malabika Dutta) AIR 2002 Calcutta 26

Gift deed – Validity – Execution of deed by illiterate lady – In absence of natural consequence of her husband attesting her thumb impression and identified her casts doubt on validity of deed – Further, none of co-villagers or relatives were attesting witnesses and deed attested by stranger who was from other village – Gift deed cannot be said to be valid. (Smt.Mukhraj Devi Vs Manoj Kumar Singh) AIR 2002 Jharkhand 87

Gift of property to unborn child – There is no prohibition that interest in property cannot be created in favour of unborn person – In the instant case donor gifted property in favour of appellant, then living, and also stipulated that if other male children are later born they shall be joint holders with the appellant – Such a stipulation is not hit by S.13 of the Act – Creation of such a right is permissible u/s 20 of the Act. (F.M.Devaru Ganapati Bhat Vs Prabhakar Ganapathi Bhat) 2004(2) Civil Court Cases 274 (S.C.)

Gift – No prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment – Donor, mother transferred to minor son, ownership and title in respect of her 1/8th share in properties – Donor reserved to herself right to sign papers with respect to management of school and right to take usufruct from the property where the school is situated – Held, gift cannot be said to be ineffectual. (K.Balakrishnan Vs K.Kamalam & Ors.) 2004(1) Apex Court Judgments 15 (S.C.)

Gift by donor to minor child – Acceptance – No overt act signifying acceptance by the minor is required.  (K.Balakrishnan Vs K.Kamalam & Ors.) 2004(1) Apex Court Judgments 15 (S.C.)

Gift by parent to child – There is a presumption of acceptance of the gift by the donee. (K.Balakrishnan Vs K.Kamalam & Ors.) 2004(1) Apex Court Judgments 15 (S.C.)

Gift – Revocation- Gift to minor son – Acceptance of gift not required when gift is made by parent to child – Non delivery of possession of the gifted property, non exercise of any rights of ownership over it and failure by the donee, on attaining majority in getting his name mutated in official records are not circumstances negativing the presumption of acceptance by the minor during his minority or on his attaining majority. Property dispute lawyer in Mumbai (K.Balakrishnan Vs K.Kamalam & Ors.) 2004(1) Apex Court Judgments 15 (S.C.)

Settlement deed – Revocation – Settlement deed registered and accepted – It cannot be revoked – Ground of failure to maintain settlor on part of settlee – Not a ground to revoke – Execution of subsequent settlement deed in favour of another – Of no use for another – Settlee under first deed can recover possession of land, subject matter of settlement – Construction put up on land – Same, however, put up after filing of suit – It is not necessary to seek removal of superstructure and thereafter get recovery of possession. (Kasi Gounder Vs Chinnapaiya) AIR 2002 Madras 1

Gift – Donor stating gift to be revocable one – Not entering into witness box to support her case – Appearance of special attorney cannot be treated as appearance in the capacity of plaintiff – Such appearance is only as a witness in his personal capacity – Adverse inference can be drawn against donor – Donor not entitled to revocation of gift. (Tokha Vs Smt.Biru & Ors.) 2003(3) Civil Court Cases 519 (H.P.) 

Gift – Of immovable property by donor in lieu of services and maintenance to be provided to her by donee – Possession of land delivered to donee – Gift was complete – No condition of revocation of gift in case donee stopped providing services – Gift cannot be termed as conditional and revocable one. (Tokha Vs Smt.Biru & Ors.) 2003(3) Civil Court Cases 519 (H.P.) 

Gift – Of immovable property by donor in lieu of services and maintenance to be provided to her by donee – Three months thereafter agreement executed that in case donee failed to maintain her then gift would be revoked – Deed of gift and agreement do not form part of same transaction and cannot be read together and given effect to. Property dispute lawyer in Mumbai (Tokha Vs Smt.Biru & Ors.) 2003(3) Civil Court Cases 519 (H.P.)