Legal Reference Library

In Rajasthan Wakf Board Vs. Devki Nandan Pathak, the Supreme Court held that Once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act.

The Kerala High Court, in the case of Lakshmi vs State of Kerala and Ors, has held that mere pendency of litigation does not ispo facto affect the person’s right to alienate the property. The court relied on Section 52 of the Transfer of Property Act to hold that a sale which takes place in the face of a pending litigation would at its best amount to a lis pendens sale. Justice Dama Sheshadri Naidu noted that in such a case, the sale would give the purchaser a title which the seller has at that point of time and the purchaser’s right to property would be subject to the outcome of the litigation. The court further noted that in such transactions, the maxim caveat emptor holds the field and Section 52 of the Transfer of Property Act protects the interests of the buyer in such situations. The court also reiterated the principle that the right to alienate the property is a vital right attached to the enjoyment of the property. Further, a holistic interpretation of Article 300-A of ...

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak. A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits. In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could n...

In the above issue was once again discussed and the decision of the Hon'ble Supreme Court in Chunchun Jha vs. Ebadat Ali and Another, AIR 1954 SC 345 was upheld. In Chunchun Jha’s case (supra), this Court examined this very question as to what constitutes “a mortgage by conditional sale or a sale out and out with a condition of repurchase“. 23) The learned Judge, Vivian Bose J., in his distinctive style of writing speaking for the Bench posed the question as under: “This is a plaintiff’s appeal in a suit for redemption of what the plaintiff calls a mortgage dated 15-4-1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court.” 24) His Lordship then examined the question in the context of several leading English authorities on the subject and Section 58(c) of the T.P. Act and laid down the following test for deciding the...

The bench of Dipak Misra and R. Banumathi, JJ held that the brother of a married female tenant is neither a ‘heir’ as visualized under Section 3(a) nor ‘family’ within the meaning of Section 3(g) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In the present case, the suit property was taken on rent by the father-in-law of deceased tenant and after his death, his son became tenant of the suit property. Upon his death, his wife i.e. the appellant’s sister became the tenant of the suit property. The Court noticed that the word ‘heir’ is not defined in the Act and hence, it has to be given the same meaning as would be applicable to the general law of succession. Section 15 of the Hindu Succession Act lays down the general order of succession to the property of a female intestate who dies after the commencement of the Hindu Succession Act and the exception carved out in Section 15(2)(b) provides for a special order of succession in case of property inher...

The facts relating to the market value as on the date of agreement to sale and as on the date of sale deed is not disputed. The only dispute is whether the stamp duty value as on the date of agreement to sale or sale deed to be considered for the purpose of computation of capital gain. The purpose of introducing section 50C of the Act was to counter suppression of sale consideration of sale of immovable properties. Before insertion of section 50C of the Act to the statute, there are lot of litigations as to consideration shown in document conveying title and payment of stamp duty. To overcome the litigations, the provision of section 50C of the Act has been inserted to the statute w.e.f. 1.6.2003 wherein it is made mandatory to adopt value u/s 50C of the Act for the purpose of determination of consideration. A proviso to section 50C of the Act has been inserted by the Finance Act, 2016 w.e.f. 1.4.2017 to resolve the genuine and intended hardship, in the case in which the date of agreem...

The Kerala High Court in Mavila Sathi vs. State of Kerala and Ors has held that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the ‘Act’), cannot be allowed to be used as a tool in property disputes. Petitioner Mavila Sathi had filed the writ petition against the direction issued by the Maintenance Tribunal, according to which she had to reconvey 10 cents of property given to her by her mother Devaki Amma after having assigned 23 cents previously, along with the direction of paying a monthly maintenance of Rs 500 per month. However, Mavila’s brother Govindan took away their mother to stay with him, as she had allegedly ousted her from her house and had refused to look after her. Mavila was assigned 23 cents of property retaining Devaki’s right to take the benefits and right of residence in the tharawad building situated in the property, according to her brother’s contentions. Govindan alleged that though the petitioner was assigned 41 cents of property on conditi...

The Punjab and Haryana High Court has held that a woman cannot claim as a matter of right to occupy any part of a self-acquired property of her husband’s parents against their wishes. The court relied on a number of judgments and dismissed an appeal by a woman claiming residential rights on her matrimonial house, owned by her father-in-law. Justice Raj Mohan Singh upheld the judgment of the lower appellate court and held, ‘In view of above and in the light of aforementioned judicial pronouncements, it can be safely culled out that the appellant has no right to live in the self-acquired property of the plaintiff/respondent No.1. The lower appellate court has rightly passed the impugned judgment and decree against the appellant.’ Relying on apex court judgments, the court observed, “During subsistence of marriage, maintenance of a married wife is a personal obligation on the part of husband. Such an obligation can be met from the properties of the husband out of joint properties. The pro...

If the spouse has not invested in a property and is merely a co-holder, then on sale of such property, she cannot be liable for tax on capital gains, the Mumbai Income-Tax Appellate Tribunal (ITAT) has recently ruled. The ITAT order will help many taxpayers as married couples are increasingly opting for property registration in joint names, even if only one of them is the investor. Anil Harish, an advocate specializing in real estate, said: "Co-holding of property is popular. Often the name of a spouse (say wife) is added to provide a sense of comfort, to ensure ease of succession on death of the partner or other reasons such as facilitating voting in a general body meeting of the housing society." The ITAT gave the order on Wednesday while hearing a case of a medical professional, Vandana Bhulchandani. An income-tax (I-T) officer, based on information in his possession, noted that Bhulchandani had not disclosed the capital gains arising from the Rs 2.12-crore sale of a...

Fixation of a reserved price for auction by a public authority based on the circle rate of a property does not imply that it must sell it at that price. Circle rates are not a true measure to determine the actual market value of a property, the Supreme Court stated while dismissing the appeal case, E-City Entertainment vs State of Uttar Pradesh. The court explained that the authority must be satisfied that the price offered truly represented the market value. Otherwise, it can cancel the auction. In this case, the Kanpur Corporation offered for sale a prime plot with a reserve price of Rs 15.47 crore. The firm offered Rs 21.51 crore, which was the highest of the three bids. However, after some time, the corporation cancelled the entire tender process because even the highest bid was far below the market value, which was assessed at Rs 100 crore. While ordering the return of the earnest money to the firm, the judgment said: "The property offered by the corporation is admittedly...

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.167 OF 2007 M/s Boorugu Mahadev & Sons & Anr. ……Appellant(s) VERSUS Sirigiri Narasing Rao & Ors. ……Respondent(s) J U D G M E N T Abhay Manohar Sapre, J. 1) This appeal is filed against the final judgment and order dated 06.09.2005 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Civil Revision Petition No. 5228 of 2002 whereby the High Court allowed the revision petition filed by the respondents herein and set aside the judgment dated 17.09.2002 passed by the Additional Chief Judge, City Small Causes Court, Hyderabad in R.A. No. 93 of 1998 and restored the judgment dated 31.12.1997 passed by the Principal Rent Controller Secunderabad in R.C. No. 165 of 1993. 2) In order to appreciate the issue involved in this appeal, which lies in a narrow compass, it is necessary to set out the relevant facts in brief infra. 3) The premises bearing No. 9-3-692 to 694, Regimenta...

A single Judge of the Kerala High Court in Lonankutty Antony@ T.V.Antony v The Joint Registrar of Co operative Societies and others [W.P(C )No:2527/2015] has ruled that a banker cannot exercise a general lien over the property owned by the husband, for the liability incurred by the wife, in the absence of any express or implied consent thereto. The petitioner husband had availed himself of a loan from the respondent bank after mortgaging a piece of property and later cleared it. When he sought the return of the title deeds of the property after clearing the loan, the bank refused to return the same. The refusal seemed to be on the premise that the petitioner’s wife also had secured a loan, and the petitioner’s title deeds are deemed to have been kept as security for the realization of the said debt, too. In other words, the bank had exercised its general lien over the property owned by the husband, for the liability incurred by the wife. Justice Dama Seshadri Naidu in his imitable styl...

Dismissing a suit for adverse possession filed against Bangalore Development Authority, the Supreme Court in Bangalore Development Authority Vs. N. Jayamma has reiterated that the period of the   adverse possession can only be counted from the date of purchase of the property and the period for which the original vendor held the property, and the date of Mahazar could not be counted. Possession of the Suit property (Acquired by the Government) was handed over to the BDA on August 30, 1988. The original owner of the property, being in actual possession sold the property to the plaintiff who filed a suit in 2001 claiming adverse possession. Suit was decreed and the High Court upheld the appeal Apex Court Bench comprising of Justices A.K. Sikri and R.K. Agrawal allowing the appeal filed by Bangalore Development Authority also held that sale in favour of the respondent in the year 1994 was void ab initio as the title had already been vested in the BDA and the original owner who had pur...

“It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent person and can purchase any house in India, in his own name,” observed NCDRC while directing Supertech Ltd to pay around Rs 64 lakh to two NRIs for denying possession of a flat in Greater Noida in Uttar Pradesh. Article referred: http://blog.scconline.com/post/2016/02/16/non-resident-indians-can-also-purchase-house-in-india/

Cash and valuables recovered by police in the course of investigation need not be necessarily handed over to their owners pending trial since criminal courts only decide on granting interim custody to a person who lays a better claim of possession over the properties and it is up to civil courts to decide on lawful ownership after conclusion of criminal trial, the Madras High Court Bench here has said. Justice M. Venugopal made the observations while dismissing a revision petition filed by an accused seeking custody of Rs. 1 lakh and 124 grams of gold jewellery seized from him by T. Kallupatti police near here in connection with a criminal case booked against him on a charge of marrying several women claiming to be an Intelligence Bureau official. The petitioner, Thiruvarulrajan, assailed an order of a Judicial Magistrate in Peraiyur who had handed over the cash and the jewels to the mother of a woman whom the petitioner had married last since the aged widow had produced her bank p...

The right to maintenance of a Hindu widow is not a "mere formality" but a spiritual and moral right that can be judicially enforced upon by claiming "absolute right" on the property given to her for sustaining herself, the Supreme Court has ruled. A bench, headed by Justice M Y Eqbal, while upholding a Andhra Pradesh high court verdict in favour of a widow who had transferred the property willed to her by her husband for her lifetime to a relative, said it was the woman's "absolute right" and she was free to bequeath the property. "It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties, then his wife is entitled to a right to be maintained out of such properties. "It is equally well settled that the claim of Hindu widow to be maintained is not a mere formality which is to be exercised as a matter of concession, grace or gratis but is a valuable,...

A woman doesn't have a claim to her partner's home over that of his wife, the Delhi high court has said in an important ruling on legal rights in a live-in relationship. Justice Najmi Waziri on Tuesday came to the rescue of a 78-year-old widow, a US citizen, by restoring to her possession of a Greater Kailash property owned by her husband. The senior citizen, who now lives in the US, married an Indian businessman in 1963 and was forced to move court when she was ousted from her matrimonial home following her husband's death last year. "A live-in or mistress or survivor in a bigamous relationship does not enjoy the status of marriage, hence she does not get the protection of law for maintenance," Justice Waziri said referring to Supreme Court rulings. The court made it clear that the US citizen, being the legally wedded wife of the businessman, had a better claim to his property over that of the live in partner. MARGUERITE CHAWLA ..... Plaintiff Through: Mr. Pe...

n a landmark judgment, a full bench comprising of  Mohit Shah CJ, MS Sanklecha and MS Sonak, JJ. held that the daughters alive on September 9, 2005 would be entitled to equal rights in ancestral property. Earlier, a division bench in the case of Vaishali S. Ganorkar vs. Satish Keshavrao Ganorkar 2012 (5) Bom CR 210 had upheld the prospective operation of the  Hindu Succession (Amendment) Act, 2005 which in effect disentitled all daughters born before 9 September 2005 to claim their equal interest in the Joint HUF. A single bench comprising of RG Ketkar, J. disagreed with the decision of the Ganorkar case and concluded that the amended Section 6 had retrospective effect from the date of the enactment of the Principal Act and is applicable to all daughters who are born before or after 2005 as a daughter becomes a coparcener in her own right by  her birth itself.  When the matter was referred to this Court, the Court agreed with the decision of Justice Ketkar. The Cour...

1.  [Gurpreet Singh Ahluwalia vs. District Magistrate Dehradun & Ors.] (Uttarakhand HC, 13.01.2015) Properties of the borrower were taken into possession by the Bank followed by auction notices for sale of the properties in question calling upon the bids from the interested purchasers. Pursuant to completion of bidding process, part deposit was made by the successful bidder out of total consideration amount with the Bank and bank was requested to get the properties auctioned demarcated so that sale deed may be executed in favour of the successful bidder after receiving balance consideration and physical possession thereof could also be handed over. Several requests were made to the concerned authority to demarcate the properties auctioned so that Bank may receive the balance of the consideration from the bidder and to also execute the sale deed in favour of the highest bidder. However still no demarcation was carried out and the Bank instead of pursuing the demarcation proce...

Hasmukh N. Gala vs. ITO (ITAT Mumbai) S. 54: Giving advance to builder constitutes "purchase" of new house even if construction is not completed and title to the property has not passed to the assessee within the prescribed period The assessee declared sale of a residential property vide sale agreement dated 8/12/2009 for a total consideration of Rs.1,02,55,000/-. After considering the indexed cost of acquisition of Rs.14,17,904/-, the long term capital gain was computed at Rs.88,37,096/-. The relevant capital gain was claimed as exempt under section 54 of the Act on the strength of having acquired a new residential house. The investment in acquisition of the new residential house was claimed by the assessee based on an advance of Rs.1.00 crore given to the builder as booking advance through a cheque dated 6/2/2010. The AO denied the claim for exemption on the ground that the provisions of section 54 of the Act require the assessee to purchase a new residential house eit...