Possession of one co-sharer is treated as possession of other co-sharer also

Possession of one co-sharer is treated as possession of other co-sharer also.

In a case before Supreme Court Vidya Devi vs Prem Prakash AIR 1995 SC 1789, By referring to following citations the point is clarified “In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'..... His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."

Gift of un-divided share by co-parcener

Gift of un-divided share by co-parcener

In a case before Supreme Court of India, in Venkata Subbamma vs Rattamma AIR 1987 SC 1775, it is explained in following words “A gift made by the coparcener to his brother should he construed as renunciation of his undivided inter- est in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, there- fore, valid and consent of other coparceners was immaterial.” ….. It is, however, settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. Such recognition of alienations of copar- cenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor's shoes and to work out his rights by means of a partition. ….. The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a coparcener can dispose of his undivided interest in the coparcenary property by a will but he cannot make a girt of such interest. ……….. It is a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of other coparceners. Such a gift will be quite legal and valid…………. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.”

DECLARATION BY REAL OWNER AGAINST FORGED AND IMPERSONATED SALE DEEDS NOT REQUIRED

DECLARATION BY REAL OWNER AGAINST FORGED AND IMPERSONATED SALE DEEDS NOT REQUIRED

Justice S.N.Variava, & Justice V.N.Khare in a case before supreme court, in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., Reported in (2001) 3 SCC 24 AIR 2001 SC 1250 “On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.”

FAMILY ARRANGEMENT NEED NOT BE REGISTERED

FAMILY ARRANGEMENT NEED NOT BE REGISTERED

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

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

Fazalali, S Murtaza Supreme Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 AIR 807, 1976 SCR (2) 202  wherein the Hon'ble Supreme Court has laid down as follows : "The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore, not compulsorily registrable. The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement".

 The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth, instead of concentrating tho same in the hands of a few, is a milestone in the ad ministration of social justice. Where by consent of the parties a matter has been settled, the courts have learned in favour of upholding such a family arrangement instead of disturbing it on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or 1 formal defect, the rule of estoppel is applied to shut out the plea of the person who being a party to the family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.

(i) The family settled must be bona fide so as to resolve family disputes. (ii) It must be voluntary and not induced by fraud, coercion or undue influence; (iii) It may be even oral, in which case and registration is necessary; (iv) Registration is necessary only if the terms are reduced to writing but where the memorandum has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself do not create or extinguish any rights in immovable property and, therefore. does not fall within the mischief of s. 17(2) of the Registration Act and is not compulsorily registrable; (v) The parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. But, even where a party has no title and the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then, the antecedent title must be assumed and the family arrangement will be upheld by the courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement. such family arrangement is final and binding on the parties to settlement.

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

FOR A CLARIFICATION SOUGHT ON DUTIES OF AN ADVOCATE - KARNATAKA HIGH COURT JUDGEMENT QUOTE

FOR A CLARIFICATION SOUGHT ON DUTIES OF AN ADVOCATE - KARNATAKA HIGH COURT JUDGEMENT QUOTE

Hon’ble Justice: Ajit J. Gunjal, J. in a judgement of F. Moily Vs. Lokayuktha, State of Karnataka, Bangalore and Others, Reported in 2010 (5) KarLJ 127 SOURCE: KARNATAKA HIGH COURT WEBSITE “Indeed as to the duty cast on the petitioner as well as the Counsel appearing for the parties is concerned, Hon'ble Mr. Justice MN Venkatachalaiah, former Chief Justice of India, has this to say: "The subject of traditions of the Bar, has quite unfortunately come to be associated with certain indelicate assumptions than the best traditions of the Bar are myth and illusions of by gone times and nostalgia of 19th century. I venture more hopefully to think that the great traditions of Bar have sustained the profession of law which every civilised society cherishes as a part of very valuable inheritance. The high traditions are spring of strength and sustenance in its days of trial. The profession of the lawyer is perhaps the single most powerful for the protection of the liberty of man and the decision of civilised living". Advocates are the inheritors of tradition of scholarship, wisdom, dignity, courage and service. The Advocate by his tradition is under several duties. They comprise of duty to the Court, duty to the profession, duty to the opponent, duty to the client, duty to the self and duty to public and State. The duty of an Advocate to the Court is also equally important. This duty encompasses and comprises courtesy and respect to the Court. An Advocate can differentiate without being abject, independent and fearless without being disrespectful, firmness can co-exist with an equal amount of grace and politeness. Section 49 of the Advocates Act, 1961 would speak about the General Power of the Bar Council of India to make certain rules. For the present, we are concerned with Section 49(1)(c) of the Act, which would speak about the standard of professional conduct and etiquette to be observed by the Advocates. Standard of Professional Conduct and Etiquette is to be found in Chapter 2 of Part VI of Bar Council of India Rules which is framed under Section 49(l)(c) of the Advocates Act read with the proviso would clearly indicate as to the duty of an Advocate towards the Court. We are more concerned with item No. 4 of Section 1 which would read as under. "An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing Counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in the Court". The Apex Court in the case of M.Y. Shareef and Another v Hon''ble Judges of the Nagpur High Court and Others, AIR 1955 SC 19; has observed thus: "This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that Counsel who sign applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a Counsel to his client to take an interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications".

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

Supreme Court Of India Bench Consiting Of Justice R.V. Raveendran And Justice A K Patnaik In T.G. Ashok Kumar VS Govindammal & Anr., Decided on 08-12-2010, The principle underlying Section 52 of the Transfer of Property Act, 1882 is clear. During the pendency in a court of competent jurisdiction of any suit which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.

SUGGESTION TO THE LAW MAKERS

Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and unnecessary litigation. At present, a prospective purchaser can find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way to ascertain whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. The inconveniences, risks, hardships and misery as a result of such transfers could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property. A solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. The Law Commission and the Parliament must consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties. 

At present in most of the States, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Registration of agreements of sale will reduce property litigation. It will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country. 

ATTORNEY HOLDER CANNOT GIVE EVIDENCE FOR PERSONAL TRANSACTIONS OF PRINCIPAL 2010 SC

ATTORNEY HOLDER CANNOT GIVE EVIDENCE FOR PERSONAL TRANSACTIONS OF PRINCIPAL 2010 SC

Supreme Court Of India Bench Consiting Of Justice R.V. Raveendran And Justice Aftab Alam In Man Kaur Vs Hartar Singh Sangha Decided on 05-10-2010 “The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney- holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or person residing abroad managing their affairs through their attorney-holders.” - Evidence Act, 1872 - Ss. 101,106,145 and 114 111. (g) - Adverse presumption - Reiterated, where a party to the suit does not appear in witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that case set up by him is not correct-Specific Relief Act, 1963, Ss. 15 and 16(c).

DOCUMENTARY AND FACTUAL VERIFICATION IN WRIT JURISDICTION OF HIGH COURT 2008 SC

DOCUMENTARY AND FACTUAL VERIFICATION IN WRIT JURISDICTION OF HIGH COURT 2008 SC

Justice S.H. Kapadia and Justice B. Sudershan Reddy in a case of City and Industrial Development Corporation vs Dosu Aardeshir Bhiwandiwala & Ors. Reported in AIR 2009 SC 571, 

FACT:- The High Court mostly relied upon the oral statement made through the A.G.P. and also some vague averments made by the appellant in its reply affidavit to the effect that the land in question is a private land and accordingly disposed of the Writ Petition directing the acquisition of the land. There is no whisper in the impugned order of the High Court that the Bhiwandiwala Trust continued to be the true and absolute owner of the land possessing valid and subsisting title as on the date of the filing of the writ petition. Nor there is any finding by the High Court as regards the nature of the land which is one of the most important factor that may have a vital bearing on the issue as to the entitlement of the respondent to get any relief in the writ petition. There is also no finding that Respondent No.1 who filed the writ petition as an individual is the trustee of the said trust and thus entitled to prosecute the litigation on behalf of the trust. The High Court did not consider as to what is the effect of filing of the Writ Petition by someone claiming to be a trustee without impleading the trust as the petitioner. The High Court ignored the statement made by the respondent in his Writ Petition about his representation to Tehsildar requiring to record his name as an "heir". The High Court never considered the effect of such a statement made by the writ petitioner in the writ petition itself. The High Court also did not consider whether the reliefs claimed could at all be granted in a public law remedy under Article 226 of the Constitution.
FINDINGS OF SUPREME COURT
Such a statement by itself cannot confer title in respect of immovable properties on any individual. The courts are not relieved of their burden to weigh and evaluate the relevancy and effect of such statements in adjudicating the lis between the parties.
The High Court ought to have considered whether there was any suppression of material facts from the Court. Having regard to the magnitude and complexity of the case the High Court in all fairness ought to have directed the official respondents to file their detailed counter affidavits and produce the entire material and the records in their possession for its consideration.
The stance adopted by the State of Maharashtra and the District Collector is stranger than fiction. It is difficult to discern as to why they remained silent spectators without effectively participating in the proceedings before the Court. No explanation is forthcoming as to why they have chosen not to file their replies to the Writ Petition in the High Court.
Under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
The High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. 
There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution. 
The court while exercising its jurisdiction under Article 226 is duty bound to consider whether : 
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can
be satisfactorily resolved; 
(b) petition reveals all material facts; 
(c)the petitioner has any alternative or effective remedy for the resolution of the dispute; 
(d) person invoking the jurisdiction is guilty of unexplained delay and laches; 
(e) ex facie barred by any laws of Limitation; 
(f) grant of relief is against public policy or barred by any valid law; and host of other factors. 

The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law. 
It will not be appropriate to dispose of the matter without one word about the conduct of the State Government reflecting highly unsatisfactory state of affairs. This Court expresses its grave concern as to the manner in which State has conducted in this case. It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society.

The State in the present case instead of filing its affidavit through higher officers of the Government utilised the lower ones to make oral statements and that too through its A.G.P. in the High Court. This malady requires immediate remedy. It is hoped that the Government shall conduct itself in a responsible manner and assist the High Court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it.

GUIDELINES BY SUPREME COURT IN THE MATTER OF RE-OPENING THE COMPLETED STAGE OF THE CIVIL CASE 2011 SC

GUIDELINES BY SUPREME COURT IN THE MATTER OF RE-OPENING THE COMPLETED STAGE OF THE CIVIL CASE 2011 SC

JUSTICE R. V. Raveendran AND JUSTICE A. K. Patnaik in K.K. VELUSAMY VS N.PALANISAMY Reported in 2011 (4) SCALE 61 
1. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided.

2. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application.

3. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

4. If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

5. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence.

6. Where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence.

7. The court should take up and complete the case within a fixed time schedule so that the delay is avoided.

8. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code.

PROOF OF A DOCUMENT

PROOF OF A DOCUMENT

THE HON'BLE SRI JUSTICE K.C.BHANU of Andhra Pradesh High Court in an election petition in Regu Maheswara Rao vs Vhyricherla Kishore Chandra ... Decided on 31 December, 2010, elaborately discussed following decisions regarding “Proof of Document”

GOPALA KRISHNAJI KETKAR V MOHAMMED HAJI LATIF AIR 1968 SC 1413 , wherein it was held thus: "We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."

SAIT TARAJEE KHIMCHAND AND OTHERS V YELAMARTI SATYAM AND OTHERS AIR 1971 SC 1865, wherein it was held thus: "THE plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiff's books would not have supported the plaintiffs."

DATTATREYA V RAGHUNATH GOPALRAO KAWATHEKAR AIR 1971 SC 2548, wherein it was held thus: "What facts and circumstances have to be established to prove the execution of a document depend on the pleas put forward. If the only plea taken is that the executant has not signed the document and that the document is a forgery, party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the document. Ordinarily no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document then it may it certain circumstances be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who signed the document had the knowledge of its contents."

SMT. VIJAYA KARI V SMT.KONDAMURI SWARNALATHA AIR 1983 AP 181, wherein it was held thus: "Under the Educational Rules every school is obligated to maintain register of admissions with the prescribed particulars and such records can be considered as official records admissible under Sec 35 of the EVIDENCE ACT, 1872. Section 35 of the EVIDENCE ACT, 1872 provides that the document or record maintained pursuant to any legal obligation is an official document admissible under section 35 of the EVIDENCE ACT, 1872.

ISHWAR DASS JAIN V SOHAN LAL AIR 2000 SC 426, wherein it was held thus: "The mode of proof of documents required to be attested is contained in Sections 68 to 71 of the Evidence Act. Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered then except in the case of a will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from Section 68 of the Evidence Act. It reads as follows : "section 88 : If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence : Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."

STATE OF HARYANA V RAM SINGH AIR 2001 SC 2532 , wherein it was held thus: "SECTION 51a of the Act is to the same effect. In Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah, (2001 AIR SCW 867 : AIR 2001 SC 1117) (supra), it was held that by virtue of Section 51-A, a certified copy of a document registered under the Registration Act, 1908 including a copy under Section 57 of the Act may be accepted as evidence of the transaction recorded in such documents. It is open to the Court to accept the certified copy as reliable evidence and without examining parties to the documents. This does not however preclude the Court from rejecting the transaction itself as being mala fide or sham provided such a challenge is laid before the Court." The above decision has no application to the present facts of the case in view of the fact that by virtue of Section 51-A of the Land Acquisition Act, the Court can accept the certified copy as a reliable evidence. Even under Evidence Act, also a certified copy of the registered sale deed is admissible in evidence in certain circumstances and does not need to be proved by calling a witness.

BHIMAPPA AND OTHERS V ALLISAB AND OTHERS AIR 2006 KAR 231, wherein it was held thus: "It has to be established by producing documents under which he is claiming title, most of the time under a registered document. Insofar as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i. e. , document itself"

RAMJI DAYAWALA AND SONS (P) LTD V INVEST IMPORT (1981) 1 SCC 80 , wherein it was held thus: "Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i. e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue"

MADHOLAL SINDHU V ASIAN ASSURANCE CO. LTD. AND OTHERS AIR 1954 BOMBAY 305 wherein it was held thus: "This proposition sounded to me a novel one. I had in fact never heard any such argument before. Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence of Balkrishna Bhagwan Dekshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas, but the matter could rest there and would carry the plaintiff no other. It certainly could not prove that the contents of those various documents which were thus proved to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and unless the plaintiff succeeded in proving the correctness of the contents of those various documents, he would not advance any step towards proving his case. Mr.Taraporewalla for the bank an Jamnadas supported Mr.Somjee in his submission. He submitted that once the signatures were proved the letters as a whole were roved, through the Court might say that the contents thereof were not proved in the sense that they were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatsoever even if they might be admitted by the Court in evidence."

RANGAYYAN AND ANOTHER V INNASIMUTHU MUDALI AND OTHERS AIR 1956 MAD 226, wherein it was held thus: "The words of S.11 are very wide, and it may be safely laid down that all evidence which would be held to be admissible by English law would be properly admitted under this section of the Act. Collateral facts which, by way of contradiction, are inconsistent with a fact in issue or another relevant fact i.e., which makes the existence of a fact in issue or a relevant fact impossible or highly improbable, or which, by way of corroboration are consistent with existence of a fact in issue or a relevant fact i.e., tend to render the existence of a fact in issue or a relevant fact highly probable are themselves made relevant by the present section."

NAGUBHAI AMMAL AND OTHERS V B.SHAMA RAO AND OTHERS AIR 1956 SC 593, wherein it was held thus: "AN admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel."

VEDANTHAM SATYAVATHI V P.VENKATARATNAM 1988 (1) ALT 915, wherein it was held thus: "The Evidence Act lays down the rules for proving a document. The proof of a document consist of two parts. Its genuineness and the contents of the document. So far as the genuineness is concerned, it is dealt in Sections 67 to 73 of the Act. So far as the contents are concerned, the rules are embodied in Section 61 to 66. If the document is sought to be proved the signature and also the handwriting must be proved. That is the rule laid down in Section 67. There are other modes of proving the signature either by expert evidence as provided in Section 45 or by producing the evidence of a person who is acquainted with the signature as envisaged by Section 47. Sometimes the internal evidence also may furnish proof of genuineness of the document as laid by the Supreme Court in Mubarik Ali Ahmed v State of Bombay (2 supra). The first rule of proving the contents of document is producing the document itself. Its contents can be proved either producing the document itself which is the primary evidence or by secondary evidence as contemplated under Sections 62 to 66. This is the mode of proving the contents of the document and genuineness of the document."

OM PRAKASH BERLIA AND ANOTHER V UNIT TRUST OF INDIA AND OTHERS AIR 1983 BOM.1, wherein it was held thus: "Secondly, Ss. 61 and 62 read together show that the contents of a document must, primarily be proved by the production of the document itself for the inspection of the Court. It is obvious that the truth of the contents of the document, even prima facie, cannot be proved by merely producing the document for the inspection of the Court. What it states can be so established."

M.CHANDRA V M.THANGAMUTHYU AND ANOTHER (2010) 9 SCC 712, wherein it was held thus: "We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."

UMESH CHANDRA V STATE OF RAJASTHAN (1982) 2 SCC 202, wherein it was held thus: "A perusal of the provisions of Sec. 35 would clearly reveal that there is no legal requirement, that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty. This fact has been clearly proved by two independent witnesses, viz. , DW 1, Ratilal Mehta and DW 3. Sister Stella. The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is S. 35 of the Evidence Act which provides for relevancy of entry in the public record"

KUMARI MADHURI PATIL AND ANOTHER V ADDITIONAL COMMISSIONER, TRIBAL DEVELOPMENT AND ANOTHER (1994) 6 SCC 241, wherein it was held thus: "THE entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would therefore, depict the caste status of the people inclusive of the school or college records, as they then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste is one of the predominant factors during pre-constitution period. Unfortunately instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis. The father of the appellants admittedly described himself in 1943 and thereafter as a Hindu Koli. In other words his status was declared a Koli by caste and Hindu by religion. Kolis are admittedly OBCs. His feigned ignorance of the ancestry is too hard to believe. The averment in the affidavit that the entries were mistakenly made as Hindu Koli is an obvious afterthought. The anthropological moorings and ethnological kinship affirmity gets genetically ingrained in the blood and no one would shake off from past, in particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognized by the Constitution for their upliftment in the Society. The ingrained Tribal traits peculiar to each Tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the concerned officer or authority would get an opportunity to test the claim for social status of particular cast or tribe or tribal community or group or part of such caste, tribe or tribal community. It or he would reach a satisfactory conclusion on the claimed social status. The father of the appellant has failed to satisfy the crucial affinity test which is relevant and germane one. On the other hand the entries in his school and college registers as Hindu Koli positively belies the claim of his social status as Scheduled Tribe."

CASE LAW ON SETTLED POSSESSION AND PROTECTION UNDER LAW

CASE LAW ON SETTLED POSSESSION AND PROTECTION UNDER LAW

1. The plaintiff relies on the rulings reported as Rame Gowda v. M. Vardappa Naidu, 2004 (1) SCC 769, Krishna Ram Mahale v. Shobha Venkat Rao, AIR 1989 SC 2097 for the argument that when a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property, except by recourse to law.

2. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decision. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration - (1968) 2 SCR 455. Puran Singh and Ors. v. The State of Punjab - (1975) 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh - (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case, it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner.

3. This has been reiterated in Subramaniaswamy Temple, v. V. Kanna Gounder, 2009 (3) SCC 306.

4. In the decision reported in Sopan Sukhdeo Sable v. Assistant Charity Commissioner ((2004) 3 SCC 137) it was held as follows: There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law.

SALE TRANSACTIONS BY GPA DOES NOT CONVEY TITLE

SALE TRANSACTIONS BY GPA DOES NOT CONVEY TITLE

READ FULL JUDGMENT

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

ILL-EFFECTS OF SA/GPA/WILL TRANSACTIONS

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

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

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

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

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

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

DECISION

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

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

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

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

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

HARDSHIP PLEADED

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

REPLIES AND RELIEFS GIVEN TO HARDSHIP

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

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

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

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

LEGAL REASONS FOR SUCH JUDGEMENT DISCUSSED BY COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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