A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Will – Suspicious circumstances -- Court cannot put the testator in its shoes, and Court should step into his – Court cannot substitute its opinions in place of that of the testator; his desire prompted by his own justifications -- As is trite, Court would only ensure that, sitting in the arm-chair of the testator the rule of prudence is satisfied for the exclusion.

(Para 28)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Will – Deposition on leading question in cross-examination – Evidential value -- Presence of the testator and the attesting witnesses and the signatures affixed on the will by each of them have been stated by DW-2 in his deposition – Attestation by other witness was not deposed to -- High Court found that though in the examination-in chief, the witness did not depose on the attestation by the other witness, in cross-examination to a leading question he answered that all persons signed on the will on the date when the witness signed the same – High court held that that by the leading question, the answer was put in the mouth of the witness and hence, it lacks probative value and fell short of the mandate u/s 63(c) of the ISA, 1925 read with Section 68 of the IEA, 1872 – Held, what was lacking in the examination-in-chief was brought out in the cross examination by way of a positive suggestion -- Leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value -- Testator was also established to be of sound and disposing mind at the time of execution of the will -- There can be no interference to the Will which stands proved unequivocally.

(Para 6, 29)

Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 Rule 58, 89, 90, 91, 92, 99, 100, 101, 102, 103, 104 -- Doctrine of lis pendens – Separate suit – Maintainability of – Third party rights – Adjudication of doctrine of lis pendens along with Rules 58, 89 to 92, 99 to 104 of Order XXI CPC respectively and Section 47 CPC is as follows:

(i) Section 52 of the 1882 Act embodying the doctrine of lis pendens would apply to suits where any right to the property in question is directly and specifically in issue. Whether any right in the property was directly and specifically in question in the suit would depend on the facts and circumstances of each case. The doctrine cannot blindly be made inapplicable to suits in which the plaint contains a specific averment that the mortgaged property be attached and sold in lieu of the decree or a charge be created on the property. If interpreted so, any judgment-debtor can render the decree incapable of execution by transferring his interest in the property during the pendency of such a suit.

(ii) Rule 89 of Order XXI CPC provides an opportunity to any person claiming an interest in the property sold or a person acting for or on behalf of the persons having such interest, another opportunity to save the property from the clutches of the sale. A sine qua non for setting aside the sale under this rule would be the payment of the deposit as prescribed therein within a period of sixty days from the date of the sale. For the purposes of this rule, a pendente lite transferee of the judgment-debtor would also fall under the ambit of the phrase “person claiming an interest in the property sold”.

(iii) Rule 90 of Order XXI CPC provides that the sale shall be set-aside if there exists any material irregularity or fraud in publishing or conducting the sale. Furthermore, such material irregularity or fraud must cause a substantial injury to the applicant under Rule 90. In other words, there must be a direct nexus between the material irregularity or fraud and the substantial injury caused to the applicant.

(iv) The words “material irregularity in publishing or conducting it” in Rule 90 would include any material irregularity or fraud occurring at a stage prior to the proclamation of sale as well, provided that the applicant did not have an opportunity to raise or could not have raised such a grievance at the appropriate time. Furthermore, the mere absence of or any defect in the attachment, by itself, cannot be a ground for setting aside the sale under Rule 90, unless substantial injury is proved. The applicant must make specific averments as regards the alleged irregularities or fraud, and convince the executing court that a substantial injury has been caused to him as a consequence.

(v) The absence of a saleable interest on the part of the judgment-debtor to the suit property cannot be brought in as a ground under Rule 90 of Order XXI CPC. Such a ground would squarely fall within the ambit of Rule 58 of Order XXI CPC, if the sale is yet to be confirmed.

(vi) Rule 92(3) of Order XXI CPC states that no person against whom an order under Rule 92 is made (either confirming the sale under Rule 92(1) or setting it aside under Rule 92(2) can institute a separate suit in that regard. However, there is a very narrow scope for a person to file a separate suit despite the bar under Rule 92(3). The reason for such a separate suit must be that the execution proceedings and the sale was without jurisdiction and therefore, a nullity and not binding on the plaintiff who has instituted a separate suit.

(vii) Having said so, before holding such a separate suit instituted by a plaintiff alleging that the entire execution proceedings was without jurisdiction and therefore, the sale was a nullity, maintainable, courts must be vigilant in ensuring that the plaintiff was not a party to the original decree or a representative of a party to the original decree, as stated in Section 47 CPC. If so, instead of filing a separate suit, such persons must prefer an application under Section 47 CPC. Upon any failure to do so, their separate suit would be hit by the bar contained in Section 47 CPC which specifically uses the words “and not by a separate suit”.

(viii) The term “third party” under Rule 92(4) would mean a party other than the judgment-debtor, decree-holder or the auction-purchaser and would refer to a party who has not had his right, title or interest vis-à-vis the property in question adjudicated under Rule 58, Rule 97 or Rule 99 of Order XXI CPC respectively. To put it very simply, the term “third party” under Rule 92(4) would refer to a party who is extraneous to the original suit proceedings and the proceedings under Order XXI CPC, and who either has not had his right, title or interest adjudicated or having the opportunity to have his right, title or interest adjudicated, has not availed such a remedy within the required time. Such a “third party” would also be someone who falls outside the scope of Section 47 CPC.

(ix) Rule 92(4) is not a provision which confers any right to the third party to institute a suit for challenging the title of the judgment-debtor to the property which is subject to the execution proceedings. It is merely a procedural provision which states that such a suit must be instituted against the auction-purchaser, where the decree-holder and judgment-debtor would be necessary parties.

(x) When a party other than the judgment-debtor, including a third party, is dispossessed during the course of execution of a decree, the only remedy for such a dispossessed party would lie in filing an application under Rule 99 complaining of its dispossession. In such an application, all questions including that of the right, title and interest of the parties in the proceeding, to the property, would be examined by the executing court.

(xi) The words “may” used in Rule 99 along with the words “and not by a separate suit” used in Rule 101, must not be read to mean that a party who has been dispossessed has two options i.e., to either prefer an application under Rule 99 or to file a separate suit, the moment they are dispossessed.  This would defeat the underlying object of the amendment made to the scheme of Rules 99 to 104 respectively wherein the executing court has been specifically empowered to look into the questions relating to the right, title and interest of the parties, quite akin to that which would have been done by way of a separate suit. Once the period of limitation for preferring an application under Rule 99 lapses, the person who has been dispossessed in the course of the execution of the decree, including a third party, cannot file a separate suit to circumvent or by-pass the said prescribed period of limitation.

(xii) Rule 102 prevents the executing court from passing any order under Rule 100 if it is found that the applicant under Rule 99 is a transferee pendente lite of the judgment-debtor. This again, cannot be construed as giving leeway to such a person to institute a separate suit. Court say so for the simple reason that, even in the separate suit, the law would not look favorably upon a pendente lite transferee, and no relief of declaration of title and/or possession would be granted to him. His fate would be the same as under an application under Rule 99.

(xiii) Therefore, - First, the separate suit instituted by the respondent nos. 1 and 2 respectively would be non-maintainable because they are representatives of the judgment-debtor and the bar envisaged under Section 47 CPC would squarely apply to their case. Secondly, having not availed the remedy under Rule 99 of Order XXI CPC within time, the separate suit instituted for the same relief(s) would be barred. Thirdly, even if the aforesaid two reasons assigned could be said to not affect the suit instituted by the respondent nos. 1 and 2 respectively, they would still not be entitled to the reliefs claimed owing to them being pendente lite transferees of the judgment-debtor whose transaction would be hit by the doctrine of lis pendens.

(Para 256)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Suit for refund of earnest money -- Agreement to sell -- Concealment of mortgage – Legal notice for refund – Effect of – Conduct of Parties – Adverse Inference from Silence -- Appellant issued a legal notice alleging concealment of the mortgage and seeking a refund -- Respondent’s failure to reply to this notice, combined with his subsequent agreement to reduce the sale price by Rs.35,00,000/- after the mortgage was discovered, was viewed as evidence of "culpable intent" and "deceit" -- Appellant held entitled to realize Rs.65,43,750/- with interest at 13% per annum from the respondent and his assets.

(Para 12, 24, 30, 31, 33)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Agreement to sell – Not seeing of original title deed -- It is a common practice for landowners to keep original title deeds in the bank lockers for security purposes -- Hence, the explanation offered by the plaintiff-appellant for not insisting on the inspection of the original title deeds, at the time of entering into the agreement, was reasonable and justified.

(Para 32)

Specific Relief Act, 1963 (47 of 1963), Section 10, 20 -- Agreement to sell of year 1990 – Suit for specific performance decreed – 35 year delayed payment of balance sale consideration – Equitable/ Discretionary relief :

-- Equitable answer does not lie either in denying specific performance altogether, or in enforcing the contract mechanically at the 1990 price – Where there is a long passage of time and substantial rise in prices, the Court, while upholding the decree for specific performance, may mould the relief by directing the purchaser to pay an enhanced amount so that the enforcement of the contract does not operate harshly against the vendor nor confer an unfair bonanza upon the purchaser.

 -- Discretion u/s 20 of the Specific Relief Act, 1963 (pre-amendment) is meant precisely to address such situations and to secure what is substantive justice between the parties.

-- An amount equal to seventy times (double the time gap between date of agreement and order) balance sale consideration under the agreement is payable by plaintiff/ buyer within three months -- In case the plaintiff fails to deposit the aforesaid amount within the time stipulated, the decree for specific performance shall stand vacated.

(Para 57-59)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32(5) -- Specific Relief Act, 1963 (47 of 1963), Section 36, 37 -- Execution -- Decree for permanent injunction – Subsequent dispossession – Restoration of possession – Permissibility of -- Finding of fact was recorded that decree holder was in possession of the suit property, the same carried presumption of her possession as on the date of filing of suit till the date of its adjudication -- In any subsequent execution based on dispossession at the hands of judgment debtor, the non-mentioning of specific particulars in the shape of date or month of forcible dispossession was not of much relevance – Order for warrant of possession, upheld.

(Para 6, 10-16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 5, Section 96, 100 -- Specific Relief Act, 1963 (47 of 1963), Section 10 -- Interim protection in Appeal – Permissibility of -- Just because the original suit came to be dismissed, that does not mean that in the pending appeal, the appellate court cannot grant appropriate relief -- Application seeking to maintain the status quo filed before the appellate court cannot be dismissed solely because the suit for specific performance stood dismissed -- Reliance placed by the first appellate court on Order XLI Rule 5, while declining to grant status quo, is grossly misplaced.

-- appeal is considered a continuation of the original suit, and the appellate court has co-extensive power to grant appropriate interim relief to prevent irreparable injury and preserve the status quo pending the final disposal of the appeal.

-- interim relief is designed to aid the main relief and ensure that the proceedings are not rendered infructuous. It aims to prevent irreparable harm that might be caused while the case is pending final determination.

-- grant of appropriate relief is a discretionary power of the appellate court, and the same must be exercised judicially based on the well-settled principles of a prima facie case, irreparable injury, and balance of convenience.

(Para 14-20)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 5, Section 96 -- First Appeal – Interim protection -- First appellate court can re-examine both questions of fact and law and may re-appreciate the evidence on record -- Its powers are as extensive as the original court’s, meaning it can reconsider the need for interim protection.

(Para 18)

A. Specific Relief Act, 1963 (47 of 1963), Section 14 -- Unilateral termination of the agreement to sell – Scope of –

(i) Unilateral termination of the agreement to sell by one party is impermissible in law except in cases where the agreement itself is determinable in nature in terms of Section 14 of the Act of 1963;

(ii) If such unilateral termination of a non-determinable agreement to sell is permitted as a defence, then virtually every suit for specific performance can be frustrated by the defendant by placing an unfair burden on the plaintiff, who despite performing his part of the obligations and having showcased readiness and willingness, would require to also seek a separate declaration that the termination was bad in law. In such cases, the burden cannot be casted upon the plaintiff to challenge the alleged termination of agreement;

iii) Where a party claims to have valid reasons to terminate or rescind a non-determinable agreement to sell, with a view to err on the side of caution, it should be such terminating party, if at all, who ideally should approach the court and obtain a declaration as to the validity of such termination or rescission, and not the non-terminating party. However, this must not mean that the defendant (the terminating party) in such cases would mandatorily be required to seek a declaration because Sections 27 and 31 of the Act of 1963 respectively, while using the phrase “may sue” merely give an option to any person to have the contract rescinded or adjudged as void or voidable;

(iv) Once the alleged termination of a non-determinable agreement in question is found to be not for bona fide reasons and being done in a unilateral manner on part of the defendant, it cannot be said that any declaration challenging the alleged termination was required on part of plaintiff;

(v) If a contract itself gives no right to unilaterally terminate the contract, or such right has been waived, and a party still terminates the contract unilaterally then that termination would amount to a breach by repudiation, and the nonterminating party can directly seek specific performance without first seeking a declaration; and

(vi) In the event it is found that the termination of agreement to sell by the defendant was not valid, then such an agreement to sell will remain subsisting and executable.

(Para 43)

B. Specific Relief Act, 1963 (47 of 1963), Section 19(b) -- Bonafide purchaser – Failure to make enquiry – Effect of -- Subsequent purchasers had sufficient notice of the facts that an ATS dated 28.04.2000 existed; the names and addresses of the original vendees; that an earnest money amounting to Rs. 2,00,000/- had been paid by the original vendees to the original vendors; that the original vendors had sought to terminate the ATS due to their inability to execute the sale deed in favour of the original vendees on account of a status quo order; that the date of actual termination could not have coincided with the date of notice; and that deemed termination would have arose only if the original vendees had failed to claim the earnest money within one month; and that despite the issuance of the notice of termination in 2003, the original vendees continued to contest the impleadment application in the Original Suit No. 30 of 2001 until 2005 -- These circumstances should have reasonably aroused suspicion or at the very least prompted further inquiry by any prudent bona fide purchaser -- Yet the subsequent purchasers despite having ample opportunity to become aware of these facts abstained from making any such inquiries -- It is therefore beyond cavil that the subsequent purchasers cannot take shelter under Section 19(b) of the Act of 1963.

(Para 81)

A. Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for Specific performance -- Termination of contract – Effect of -- A contract may give right to the parties, or any one of the parties, to terminate the contract on existence of certain conditions -- In terms thereof, the contract is terminated, a doubt over subsistence of the contract is created and, therefore, without seeking a declaration that termination is bad in law, a decree for specific performance may not be available -- However, where there is no such right conferred on any party to terminate the contract, or the right so conferred is waived, yet the contract is terminated unilaterally, such termination may be taken as a breach of contract by repudiation and the party aggrieved may, by treating the contract as subsisting, sue for specific performance without seeking a declaratory relief qua validity of such termination.

(Para 32)

B. Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for specific performance – Termination of contract – Effect of – Declaration that termination of contract was invalid – Requirement of -- By accepting Rs.1,95,000 after expiry of six months, D-1 and D-2, firstly, waived their right, as available to them under the contract, to forfeit the advance consideration/ earnest money,

Secondly, by such acceptance and endorsement on the back of the agreement they treated the contract as subsisting and,

thirdly, by transferring part of the subject matter of the agreement in favour of D-3, even before serving a forfeiture notice, they committed a breach of the contract.

In such circumstances, the plaintiff had an option to treat the contract as subsisting and sue for specific performance more so when termination was a void act, no longer permissible under the varied contract -- Suit for specific performance was maintainable even without seeking a declaration that termination of the contract was invalid in law.

(Para 33)

C. Specific Relief Act, 1963 (47 of 1963), Section 10 – Suit for specific performance -- Evidence on record that the Tehsildar had reported regarding possession of the plaintiff over the suit property though that report was subject to final adjudication in the suit – In such circumstances, merely because plaintiff’s claim that property was in his possession was not accepted, the relief of specific performance cannot be declined, particularly, when the plaintiff had already paid over 90% of the agreed consideration and paid additional amount also as demanded by D-1 and D-2 -- Further, D-3 was a related party of D-1 and D-2 and, therefore, not a bona fide purchaser -- Not a fit case where discretionary relief of specific performance should have been denied – High Court erred in law by interfering with the decree of specific performance passed by the first appellate court -- Judgment and decree(s) of the High Court is/are set aside and that of the first appellate court is/are restored.

(Para 39, 40)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party -- For impleading a person as a party, two conditions must be satisfied: firstly, that there must be a right to some relief against such person in respect of the controversies involved in the proceedings; and secondly, that no effective decree can be passed in the absence of such person -- Power under Order 1 Rule 10 CPC is discretionary and should be exercised sparingly but to advance the cause of complete justice and to avoid multiplicity of proceedings.

(Para 16)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction -- Applicant placed on record Mutations and Jamabandi for the year 1996-97 showing transfer of the suit land from the State Government to ‘J’ and thereafter to himself -- Several rounds of litigation, including writ petitions before the High Court, in which his alleged rights over the same land have been contested -- These materials were sufficient to give the trial court a prima facie basis to conclude that the applicant has at least an arguable interest in the subject matter of the suit and that his presence would facilitate complete adjudication of the dispute.

(Para 2, 16)

C. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction -- Objection as to claim based upon fraudulent documents – It is a matter of evidence which cannot be conclusively determined at the stage of impleadment -- Impleadment order does not confer any legitimacy upon applicant’s title; it merely allows him to be heard so that the court's final decree, if passed, may bind all persons claiming interest in the property and avoid future litigation -- Apprehension that the impleadment will prejudice the plaintiff/ petitioner's rights is thus unfounded.

(Para 2, 17)

D. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction --Dominus litis – Argument as to Plaintiff/ Petitioner, being dominus litis, is free to choose his defendants, cannot prevail when the relief claimed directly affects third-party rights reflected in the public records -- Petitioner's suit seeks declaration of nullity of a rapat entry and correction of revenue records may have an impact upon any person claiming interest through existing entries or documents.

(Para 2, 18)

Specific Relief Act, 1963 (47 of 1963), Section 37, 38 -- Permanent injunction – Plaintiff paying Betai -- Rent agreement of tenancy – Requirements of – Suit decreed by both the Courts Trial Court as well First Appellate Court -- Plaintiff duly proved his possession over the suit land by producing extensive revenue record in the form of Jamabandis, Khasra Girdawaris from which it is evident that the plaintiff is in cultivating possession of the suit property -- In the Jamabandi it is also recorded that plaintiff is paying ‘Batai’ – Held, if plaintiff is paying Batai, there is no requirement for the plaintiff to produce rent slip or any Agreement in respect of his tenancy -- From the revenue record, it is also established that the plaintiff is in possession of suit property as Gair Marusi -- Plaintiff has shown his possession over the suit property since 1970 -- Defendants have not only been unable to dispute or controvert the above said comprehensive evidence by way of revenue record produced by the plaintiff – No ground made out to interfere in the impugned judgments and decrees – RSA dismissed.

(Para 10-12)

A. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Severability of contract – Performance of part of contract -- While adjudicating suits, or when examining the validity of agreements or contracts, the Courts generally have the power to sever the invalid portion of an agreement from its valid portion and give effect to the latter -- No bar on the application of the doctrine of severability in suits for specific performance, however, this power must be exercised with great caution and only in exceptional cases -- Court cannot remove the essential part of an agreement or the very object for which it was executed -- While exercising such power, the Courts must refrain from re-writing or re-constructing the agreement between the parties to make it work.

(Para 20-22)

B. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Severability of contract – Performance of part of contract -- Agreement for construction of eight flats – Agreement was contrary to law and therefore unenforceable – Trial Court applied Section 12 of the Specific Relief Act, directing transfer of the ‘rights over the land’ to the Plaintiff, subject to compliance with the Building Regulations limiting construction to three flats -- Held, Trial Court was not justified in reworking the agreement to make it enforceable by removing its essential object-namely, the construction of eight flats on the subject land -- Trial Court re-wrote the agreement, which it could not have done since the very essence of the agreement was the construction of eight flats -- Respondent is a public sector bank and it is not expected from the State or its instrumentalities to enter into camouflage agreements and especially where the object of the agreement would result in law being violated – Suit dismissed.

(Para 19, 24-27)

A. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Mutation -- Already sold property – Appropriate remedy -- Revenue authorities refused to record name of the appellants after noticing the fact that the original person, through whom appellants-vendor claim right, had already sold his share and was not left with any land which could be transferred – Issues sought to be raised by the appellants cannot be examined in summary proceedings of mutation -- Remedy of the appellants would be to seek appropriate declaration from the competent Civil Court.

(Para 2-4)

B. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Mutation Proceeding – Nature of -- Any order passed in summary proceedings of mutation remain subservient to a declaration granted by the competent Civil Court.

(Para 4)

A. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Legal Principles -- A Will has to be proved like any other document subject to the requirements of Section 63 of the Act, 1925 and Section 68 of the Act, 1872, that is examination of at least of one of the attesting witnesses -- However, unlike other documents, when a Will is propounded, its maker is no longer in the land of living -- This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved -- Onus lies on the propounder not only to prove due execution but dispel from the mind of the court, all suspicious circumstances which cast doubt on the free disposing mind of the testator -- Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will out of his free volition without coercion or undue influence, would the Will be accepted as genuine.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Parameters to ascertain ‘suspicious circumstances’ vitiating a Will –

-- Deprivation of a natural heir, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of the Will is to interfere with the normal line of succession

-- Prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicion as it does not give inkling to the mind of the testator to enable the court to judge that the disposition was a voluntary act.

(Para 16)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will in favour of nephew – Wife/ natural heir – Will is completely silent with regard to the existence of his own wife and natural heir, i.e. the 1^st respondent, or the reason for her disinheritance – Nothing has come on record to show the relation between the couple was bitter – Trial Court erroneously observed that non-performance of last rites of testator by 1^st respondent hinted at sour relations between the couple – Ordinarily, in a Hindu/ Sikh family, last rites are performed by Male Sapinda relations – A cumulative assessment of the attending circumstances including this unusual omission to mention the very existence of his wife in the Will, gives rise to serious doubt that the Will was executed as per the dictates of the appellant and is not the ‘free will’ of the testator – Held, non-mention of 1st respondent or the reasons for her disinheritance in the Will, is an eloquent reminder that the free disposition of the testator was vitiated by the undue influence of the appellant.

(Para 19, 20)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Permanent injunction – Trespasser’ right – Claim as lessee -- For leasing out a Government land, the officials are required to adhere to the relevant statutory provisions -- Appellant failed to plead and prove as to when the lease was created in his favour and what were the terms -- It is not appropriate for the courts to protect possession of the trespassers while granting injunction against a true owner -- Property belongs to the Government -- Mere production of certain receipts evidencing the payment of certain amount without referring to the particular land would not come to the rescue of the appellant – Permanent  injunction declined by Ld. Appellate Court, upheld.

(Para 1, 5, 6)

A. Indian Contract Act, 1872 (9 of 1872), Section 2(d) – Consideration -- Past consideration is as good as present consideration --  Word ‘consideration’ has been defined in Section 2 (d) of the Indian Contract Act, 1872 which has a wider connotation and includes within its sweep not only the monetary consideration but even promises including promise to render future personal service.

(Para 13)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 – Indian Contract Act, 1872 (9 of 1872), Section 201, 202 – Benami Transactions (Prohibition) Act, 1988 (45 of 1988), Section 3, 4 -- Sale by Will/ Agreement to Sell/ General Power of attorney/ Affidavit -- PW-1/ S K deposed that her brother/ A.K. was only a Class IV employee and on her request and on her behalf he applied for the house in his name -- A.K/ Brother executed an agreement to sell, General Power of Attorney, registered Will and an affidavit – Hence, Benami Transactions (Prohibition) Act, 1988 could not be invoked -- After the death of A.K. on 14.08.1984, his widow and children never made any attempt to pay the instalments -- All instalments were paid by S.K. and her daughter -- All the documents of the property have been produced by the plaintiff -- Hence, it is proved that there was sale of the house in favour of Ms. S.K. by A.K -- Likewise, the General Power of Attorney will not cease to have effect because Ms.SK has interest in the property in view of agreement and Will -- Case falls under Section 202 and not 201 of the Indian Contract Act, 1872.

(Para 13, 18)

C. Specific Relief Act, 1963 (47 of 1963), Section 13 -- Agreement to sell of imperfect title – Effect of -- Section 13 of the Specific Relief Act, 1963 enables the purchaser to claim specific performance against person with no title or imperfect title -- Clause (a) of Section 13 (1) provides that if the vendor has subsequent to any contract acquired any interest in the property, the purchaser may compel him to make good the contract out of such interest -- If there was any defect in his ownership, the same stood rectified on payment of instalment.

(Para 14)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Proof of -- Suspicious circumstances -- Execution of the Will proved by examining both the attesting witnesses – Despite lengthy cross examination, the defendants failed to impeach their credibility – Will is not surrounded by suspicious circumstances because of various documents executed by A.K. including agreement to sell, General Power of Attorney, affidavit, apart from the Will.

(Para 15, 16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Benami Transactions (Prohibition) Act, 1988 (45 of 1988), Section 2(8)(9), 4 – Rejection of plaint -- Benami properties -- Whether a property is a benami, has to be considered not in the light of Section 4 of the Benami Act alone but also in connection with Sections 2 (8) and 2 (9) of the said Act i.e. whether the property if benami falls in the exception -- It is only where the property is benami and does not fall within the exception contained in Sub-Section (9) of Section 2 that a suit may be said to be barred -- However, the issue whether the property is benami and is not covered by the exception, is an issue to be decided on the basis of evidence and not simply on mere averments contained in the plaint -- Defendants have to adduce evidence to prove the property to be benami -- Plaint cannot be rejected at the stage of consideration of application under Order VII Rule 11 CPC.

(Para 27-29)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Hindu Succession Act, 1956 (30 of 1956), Section 14 – Constitution of India, Article 136 -- Absolute property of hindu female -- Plea that plaint is hit by Section 14 of the Act -- No such specific plea was taken by the defendants in the application under Order VII Rule 11 CPC -- Such a plea was never raised and argued before either of the courts below -- There is no finding by any court on the above aspect -- Defendants cannot be permitted to raise such a plea for the first time in the Special Leave Petition without there being any foundation to that effect.

(Para 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property of hindu female -- Section 14 of the Act simply provides that the property possessed by a female Hindu shall be held by her as a full owner -- It does not bar or prohibit a suit in respect of such a property -- Therefore, in the absence of any bar contained in the above provision, the suit plaint is not liable to be rejected as barred by law.

(Para 31)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97, 98, 99, 100, 101, Section 47 -- Decree for possession with respect to a specific shop identified by the properties located in all the four directions -- Objector purchased the suit property, ten years after the decree was passed -- All the objection petitions are not required to be decided after framing the issues -- Prima facie, merit of the objection petition is to be examined by the Executing Court – Executing Court gave direction for registration of FIR against the judgment debtors and the objector -- FIR already registered by the decree holder will continue and shall remain unaffected – Objection petition dismissed, orders upheld.

(Para 2, 8-12)

Registration Act, 1908 (16 of 1908), Section 17, 49 – Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for specific performance -- Un-registered agreement to sell with possession – Dismissal of interlocutory application filed by the appellant seeking permission to place on record a document/ agreement to sell -- Prayer of the appellant in the interlocutory application falls under proviso to Section 49 of the Registration Act which provides that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance -- Proviso also enables the said document to be received in evidence of a collateral transaction -- Appellant permitted to introduce the said document.

(Para 3, 9-11)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 4, 5, 23 – Maintenance to Senior citizen – Eviction of son – Property already transferred to daughter/ son-in-law – Effect of -- Exfacie Senior citizen ceases to be the owner of the property and it is up to the purchasers to initiate eviction proceedings, if any, against the occupants of any part of it -- Senior citizens are simply entitled to maintenance rather than eviction of their son/ relatives -- It was only in the contingency of son not behaving properly or continuing to humiliate or torture the parents that the eviction proceedings would be necessary against him -- Tribunal was justified in permitting him to continue living therein with the rider of drawing eviction proceedings if he indulges in any untoward behavior or interferes with the life of others.

(Para 26-29)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 4, 5, 23 – Eviction of son -- If son has been living in a small portion of the house, may be of his father, in which he has no share and is continuing with the family business from the shop on the ground floor without interfering with the life of others, it does not appear to be prudent to order for his eviction as after all being a son he also has an implied license to live therein – No necessity for the extreme step for ordering the eviction -- Purpose could have been served by ordering maintenance as provided under Section 4/5 of the Senior Citizens Act and by restraining him from harassing the parents and interfering in their day-to-day life.

(Para 29, 34)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 23 -- Senior citizen case -- Eviction of person – Power of -- Provisions of the Senior Citizens Act, nowhere specifically provides for drawing proceedings for eviction of persons from any premises owned or belonging to such a senior person -- It is only on account of the observations made by this Court in S. Vanitha vs. Commissioner, Bengaluru Urban District & Ors, (2021) 15 SCC 730 that the Tribunal under the Senior Citizens Act may also order eviction if it is necessary and expedient to ensure the protection of the senior citizens -- The Tribunal thus had acquired jurisdiction to pass orders of eviction while exercising jurisdiction under Section 23 of the Senior Citizen Act which otherwise provide for treating the sale of the property to be void if it is against the interest of the senior citizen.

(Para 31)

Transfer of Property Act, 1882 (4 of 1882), Section 122, 123, 126 -- Gift deed – Completion of -- Unilateral cancellation – Permissibility of -- Delivery of possession is not sine qua non to validate a gift or settlement -- Delivery of possession is only one of the methods to prove acceptance and not the sole method – If the original deed was returned after registration, the fact that it was already acted upon, cannot be altered -- Receipt of the original document by the plaintiff and registration of the same, would amount to acceptance of the gift and the transaction satisfies the requirement of Section 122 of the TP Act -- Once the document is declared as “gift”, Donor/ defendant No.1 had no right to cancel the same unilaterally and the Sub Registrar had no right to register the cancellation deed -- Unilateral cancellation of the document is void and as a natural corollary, the sale deed executed by Donor/ Defendant No.1 / father also is invalid.

(Para 18)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Suit for declaration of absolute ownership – Pleadings -- One who comes before the court with a declaration that, he is the absolute owner of the schedule property, he must plead the correct property number, extent and also boundaries before the court with cogent and acceptable evidence.

(Para 11)

Transfer of Property Act, 1882 (4 of 1882), Section 54 – Allotment in favour of two brothers -- Transfer of ownership to facilitate loan – Effect of -- UT Administration transferred the plot to facilitate the plaintiff to obtain loan --  Both the courts decreed the suit of mandatory injunction directing the defendant/ brother to leave and vacate two rooms – Property worth more than Rs.100/- cannot be transferred from one to another without registered instrument -- Once, there is documentary evidence to prove that the allotment was made in favour of two brothers and it was the plaintiff who applied for transferring the plot exclusively in his name because he wanted to borrow the loan, the courts erred in relying upon the oral evidence – Judgments passed by both the courts below, set aside -- Suit filed by the plaintiff dismissed.

(Para 9-15)

Transfer of Property Act, 1882 (4 of 1882), Section 123 -- Cancellation of gift deed – Permissibility of -- Donor executed the gift deed voluntarily and the donee accepted the same and the donor has absolutely transferred the title and possession of the gifted properties through that gift deed – Cancellation of the deed of gift unilaterally by the donor is nonest under law.

(Para 26)

A. Specific Relief Act, 1963 (47 of 1963), Section 34 – Cancellation of allotment -- Forfeiture of amount – Suit for declaration that cancellation was null and void -- HUDCO was in breach of several obligations as contemplated in the Allotment Letter, viz. failure to execute documents for securing approval under the ULCR Act and the IT Act; failure to execute the sub lease agreement in favour of the Appellant and; failure to secure the approval of the revised layout plan for the construction of the hotel -- It is a settled position of law that a commercial document ought not to be interpreted in a manner that arrives at a complete variance with what may originally have been the intention of the parties -- Respondent No. 1/HUDCO, was in breach of its reciprocal contractual obligations, thereby disentitling them from forfeiting the monies already paid by the Appellant towards the first instalment as enshrined in Clause 5 (iii) of the Allotment Letter – Appellant has blatantly engaged in forum shopping, and considering that their overall conduct does not in any manner reflect an approach aligning with the clean hands doctrine, they are not entitled to grant of any discretionary relief of interest in their favour -- Appellant held entitled to a refund of the principal amount, without any interest.

(Para 42-47, 60)

B. Code of Civil Procedure, 1908 (V of 1908), Section 34 – Interest -- It is trite law that u/s 34 of the CPC, the award of interest is a discretionary exercise steeped in equitable considerations.

(Para 49)

A. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Rights in personam -- Where ‘equitable mortgages’ have been created based on deposit of part-deeds or documents purporting title or evincing intention of parties to create an interest, all such deposits will be a valid mortgage in equity and the charge that might have been created prior in time will assume priority over any subsequent charges or mortgagors --  However, since such a mortgage is an ‘equitable mortgage’ any rights flowing from such mortgages are only of personal character and only rights in personam and as such will not operate against any strangers or subsequent incumbrancers unaware of such equitable mortgage -- Right of the lender to apportion or appropriate the subject property for repayment of loan only a right to take such an action rather than a right in the property itself.

(Para 43)

B. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Legal mortgage – Right of --  Legal mortgage would have assumed priority in charge, yet an equitable mortgage may still be enforceable as secondary charge, provided the other considerations such as notice of such mortgage is fulfilled.

(Para 53)

C. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Charge -- ‘equitable mortgages’ are very much recognized in India under the nomenclature of “charge” in terms of Section 100 of the Act, 1882, and the same will be enforceable as far as possible in terms of the procedure and provisions application to a simple mortgage except those without notice of such charge.

(Para 56)

A. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Part performance of contract -- It is not open to the High Court to direct specific performance of a part of contract except otherwise provided in the section in absence of any of the exigencies available under the provisions of sub-sections (2), (3) and (4) of Section 12 so as to decree the suit.

(Para 10)

B. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Part performance of contract -- Relinquishment of claim to further performance of the remaining part of the contract and all rights to compensation -- Relinquishment could be made at any stage of the litigation including the appellate stage.

(Para 18, 21)

Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- Mere exclusion of the natural heirs from any benefit is not of such suspicious circumstances as to create legitimate doubts on the genuineness of the Will -- Will is executed only to alter the mode of succession and by the very nature of things it is bound to result in either reducing the share or depriving the share of the natural heir.

(Para 7)

Transfer of Property Act, 1882 (4 of 1882), Section 54 – Registration Act, 1908 (16 of 1908), Section 17 -- Agreement to sell – Whether, it is transfer of title? -- Agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement -- An agreement for sale does not create any interest in the property -- The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908.

(Para 6)

Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 38 -- Suit for simpliciter injunction – Maintainability of -- Plaintiffs failed to pray for any declaration and their suit simpliciter for injunction -- High Court dismissed the suit being maintainable -- Held, if the defendants do not dispute the title of the plaintiffs then the suit should not fail only on the ground that the matter has been filed only for injunction simpliciter and no main relief in the form of declaration has been prayed for -- Judgment and order passed by the High Court set aside, matter remitted back to the High Court for fresh consideration of the Second Appeal in accordance with law.

(Para 13-23)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Coparcener property -- By definition, an ancestral property is a coparcenary property, where "coparceners" are legal heirs with an inherent interest in the property from birth -- Such properties remain undivided within joint families, with legal heirs enjoying their shares.

(Para 16)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Coparcener property -- Family settlement – Effect of -- Suit property could not have been held to be an ancestral property, as the same was received by the erstwhile owner by way of a family settlement, wherein, the two brothers divided two equally measuring plots between themselves -- Hence, the property could not have been said to be delved on the father by virtue of him being a coparcener in that property.

(Para 19)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Regular Second Appeal – Scope of -- Section 100 of the CPC confers a limited jurisdiction on the High Court to deal only with any legal error apparent on the face of the record -- Since there arises no substantial question of law to be adjudicated, the appeal dismissed.

(Para 20, 21)

Registration Act, 1908 (16 of 1908), Section 17(2)(vi) – Indian Stamp Act, 1899 (2 of 1899), Section 3, Article 22 – Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 -- Compromise decree for immovable property – Pre-existing right -- Stamp duty -- Registration – Requirements of -- If a compromise decree involves immovable property other than the property for which a decree is prayed for, such a property would not be exempted and would require registration -- To avail the exemption from compulsory registration, the compromise decree arrived must be only in respect of the property that is the subject-matter of the suit -- Compromise arrived at before the Lok Adalat and the award passed by the Lok Adalat thereto assume the character of a decree passed under Order XXIII Rule 3 and would also come within the ambit and purview of sub-section (2) of section 17 of the Act, 1908 -- In order to fall under the exception of Section 17(2)(vi) of the Act, 1908, the following conditions must be satisfied:

(i)There must be a compromise decree as per the terms of the compromise without any collusion;

(ii)The compromise decree must pertain to the subject property in the suit; and

(iii)There must be a  pre-existing right over the subject property, and the compromise decree should not create a right afresh.

(Para 7-10, 13)

Transfer of Property Act, 1882 (4 of 1882), Section 53A – Registration Act, 1908 (16 of 1908), Section 17 – Transfer of property by unregistered document -- Part performance of contract – Object of Section 53A of T.P.A. – Interpretation of -- Section 53-A was inserted principally for the protection of ignorant transferees who take possession or spend money in improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration -- The effect of this section, is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favour of transferees in order to allow the defence of part performance to be established -- Section 53-A is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence -- Consequently, the exception must be strictly construed.

(Para 13, 14)

Specific Relief Act, 1963 (47 of 1963), Section 20 -- Specific performance of contract – Hardship -- Rise in price – Inadequacy of price -- Mere rise in price subsequent to the date of the contract or inadequacy of price is not to be treated as a hardship entailing refusal of specific performance of the contract -- Hardship involved should be one not foreseen by the party and should be collateral to the contract -- Issue of hardship would come into play only if it is established by cogent evidence that, who executed the Agreement of Sale was unable to foresee the hardship at the time of entering into the contract.

(Para 29-34)

A. Violation of building approved plan – Regularisation of construction – Construction(s) put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged -- In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy -- Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions – Regularization schemes must be brought out only in exceptional circumstances.

(Para 20)

B. Building approved plan – Occupation certificate – Amenities -- In the larger public interest, directions issued, in addition to the directives issued by this Court in Re: Directions in the matter of demolition of structures 2024 SCC OnLine SC 3291:

(i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned.

(ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records.

(iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified.

(iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the production of the completion/occupation certificate.

(v) Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith.

(vi) No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building.

(vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment.

(viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge.

(ix) In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided.

(x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law.

(xi) Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned.

(xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.

(Para 21)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Joint land – Sale of specific khasra Number – Legality of -- Even if specific Khasra numbers are sold out of joint land, the same still is sale of share in the joint holding -- It is not disputed by the plaintiffs that subject matter of sale deed challenged in the suit, is less than the entitlement of K.S. – Held, suit seeking declaration to the effect that sale deed executed by K.S. in favour of the defendants itself was not maintainable once the share sold by him was less than the share of K.S.

(Para 15, 16)

Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Co-parcenary property – Sole-coparcener – Alienation of property – Right of -- Sole surviving co-parcener is entitled to dispose of the coparcenary property as his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property -- When the sons and grandchildren are born to the family, then automatically by birth they acquire the right over the ancestral and joint family property and cannot dispose of the same.

(Para 22, 23)

Maharashtra Land Revenue (Disposal of Government Land) Rules, 1971, Rule 27 – Allotment of land --– Violation of rules -- There has to be transparency in matters of allotment of land by the government, adherence to the rules and regulations becomes important in the cases of allotment -- Not only MRCHS’ proposed members found ineligible, but the society was allowed to change its members frequently, starting from the point when it accepted the Letter of Intent in its favour – Land is a precious material resource of the community and therefore the least which is required from the State is transparency in its distribution -- There has been a complete arbitrariness in the allotment in favour of MRCHS -- Allotment of the plot in favour of MRCHS is not proper, as it is violative of the procedure as well as eligibility criteria -- Civil appeal allowed,  Letter of Allotment in favour of MRCHS stands quashed.

(Para 7, 11-13)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Constitution of India, Article 21 -- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13 -- Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 53 -- Maintenance to wife – Charge over property – Preferential right of wife -- No objection of any secured creditor, operational creditor or any other claim shall be entertained opposing the entitlement of the respondents for maintenance -- This right is a subset of the right to dignity and a dignified life, which in turn flows from Article 21 of the Constitution of India -- Right to maintenance being equivalent to a fundamental right will be superior to and have overriding effect than the statutory rights afforded to Financial Creditors, Secured Creditors, Operational Creditors or any other such claimants encompassed within the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the Insolvency and Bankruptcy Code, 2016 or similar such laws.

(Para 11, 12)

Specific Relief Act, 1963 (47 of 1963), Section 22, 28(3) – Transfer of Property Act, 1882 (4 of 1882), Section 55 -- Suit for specific performance – Possession not part of decree – Execution of – Whether the relief of possession may be granted by the executing court in a case where the suit has been decreed for specific performance simpliciter and no express relief for the transfer of possession of the suit property has been granted – High Court directed Executing Court to issue a warrant of possession of the suit property in favour of plaintiff-decree holder – Plaintiff can amend the plaint to include a claim for the relief of possession, partition, etc. at any stage of the proceeding, includes the stage of execution of the decree by the executing court -- Order upheld, SLP dismissed. Babu Lal’s case (1982) 1 SCC 525 & Rohit Kochhar’s case 2024 INSC 920 relied.

(Para 14)

Code of Civil Procedure, 1908 (V of 1908), Section 16(1)(d) -- Specific Relief Act, 1963 (47 of 1963), Section 22, 28 – Territorial jurisdiction of Court -- Suit for specific performance – Possession not prayed specifically – Effect of -- It is clear from the terms of the contract between the parties that the transfer of possession of the suit property is implicit in the said contract and absence of a specific prayer seeking transfer of possession would not have any bearing on the character of the suit, which is one covered by Section 16(d) of the CPC.

(Para 33)

Registration Act, 1908 (16 of 1908), Section 17(2)(xii) – Indian Stamp Act, 1899 (2 of 1899), First Schedule, Article 18, 23 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 94 -- Auction sale – Sale certificate -- Stamp duty – Requirement of -- Sale certificate issued to the purchaser in pursuance of the confirmation of an auction sale is merely evidence of such title and does not require registration u/s 17(1) of the Registration Act -- Mere filing u/s 89(4) of the Registration Act itself is sufficient when a copy of the sale certificate is forwarded by the authorised officer to the registering authority – However, Articles 18 and 23 respectively of the first schedule to the Stamp Act respectively makes it clear that when the auction purchaser presents the original sale certificate for registration, it would attract stamp duty in accordance with the said Articles -- As long as the sale certificate remains as it is, it is not compulsorily registrable -- It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise.

(Para 7, 13-20)

A. Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for specific performance of agreement -- Evidence of attorney -- One of the purchasers and plaintiff in his suit for specific performance throughout present in the transaction held the Power of Attorney from the other plaintiffs – He was examined as PW-1 in each of the suits whether in his capacity as plaintiff or as Power of Attorney from other plaintiffs -- It was not necessary for each of the plaintiffs in separate suits to appear and prove the transaction -- Trial Court had examined this aspect and had found favour with the plaintiffs – Adverse inference drawn by the High Court for the reason that the plaintiffs did not enter the witness box to prove the Agreement to Sell, was completely misplaced.

(Para 28)

B. Specific Relief Act, 1963 (47 of 1963), Section 10 – Limitation Act, 1963 (36 of 1963), Article 54 -- Suit for specific performance of agreement – Limitation -- Agreement to Sell dated 30.08.1990 did not mention any date for the performance, nor did owner refused at any point of time and soon after the death of owner in December 1992, the plaintiffs having come to know of the mutation proceedings by her legal heirs, they proceeded to file the suit, after giving notice in May 1995, which was well within a period of three years -- Second part of Article 54 of the Schedule to the Limitation Act would be applicable once there was no date fixed for performance in the Agreement to Sell.

(Para 27, 30)

C. Transfer of Property Act, 1882 (4 of 1882) -- Agreement to sell – Possession with original title deed – Effect of -- A purchaser who has paid the full consideration and received the original title deeds from the seller would have taken possession under normal circumstances -- Any possession taken by any other party thereafter would be unauthorised and illegal.

(Para 32)

D. Transfer of Property Act, 1882 (4 of 1882) -- Violation of Injunction order – Alienation of the property in violation of the injunction order -- Sale deed would be a void document. 

(Para 33)

A. Specific Relief Act, 1963 (47 of 1963), Section 10, 16 -- Limitation Act, 1963 (36 of 1963), Article 54 – Suit for specific performance – Limitation -- Limitation prescribed by Article 54 sets in from the date when the petitioner received the reply refusing performance.

(Para 31)

B. Specific Relief Act, 1963 (47 of 1963), Section 10, 16(c) – Specific performance of agreement – Readiness and willingness – Purchaser paid a sum of Rs.11,30,00 as earnest money and paid Rs.13,00,000 on the same day by cheque and paid another Rs. 5,00,000 by Demand Draft -- If the petitioner was unwilling to perform the contract, he would not have paid nearly 75 percent of the sale consideration -- Petitioner with the payment of the additional sum above the earnest money, has proved his readiness and willingness to perform the contract -- Fit case for to exercise discretion to direct specific performance.

(Para 42)

C. Transfer of Property Act, 1882 (4 of 1882), Section 52 – Lis panders -- Doctrine of lis pendens that Section 52 of the Transfer of Property Act encapsulates, bars the transfer of a suit property during the pendency of litigation -- The only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it -- Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding.

(Para 47)

D. Transfer of Property Act, 1882 (4 of 1882), Section 52 – Object of doctrine of lis pendens -- Purpose of lis pendens is to ensure that the process of the court is not subverted and rendered infructuous --  In the absence of the doctrine of lis pendens, a defendant could defeat the purpose of the suit by alienating the suit property.

(Para 49)

E. Transfer of Property Act, 1882 (4 of 1882), Section 52 – Lis pendens – Review -- Pendency means -- Review proceedings were “instituted” within the period of limitation of thirty days –  Doctrine of lis pendens kicks in at the stage of “institution” and not at the stage when notice is issued by this Court -- Argument of the respondents that the doctrine of lis pendens does not apply because the petition for review was lying in the registry in a defective state cannot be accepted.

(Para 49)

Limitation Act, 1963 (36 of 1963), Section 27 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Adverse possession against co-sharer -- Possession of the plaintiffs was in a representative capacity being co-sharer -- Merely because a particular co-sharer is not in possession and is residing out of the village is not sufficient to prove ouster -- Concurrent findings of fact with regard to plaintiffs' failure to prove their ownership by way of adverse possession not interfered – Appeal dismissed.

(Para 12)

Waqf Act, 1995 (43 of 1995), Section 6, 7, 83 – Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 -- Waqf property – Jurisdiction of Waqf Tribunal -- Gair Mumkin Khangah and Takia -- Tribunal decided the issue of jurisdiction and held that the question of title would be decided by the Collector under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, however decided the other issued on merits – Tribunal would not be excluded from adjudicating the matter -- Tribunal having held that it did not have the jurisdiction to try and decide the suit, the findings on merits on other issues could not have been rendered by it -- Impugned judgment and decree passed by the Tribunal set aside and the matter remanded to the Tribunal for decision afresh in accordance with law.

(Para 1, 3, 6-8)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Suit for specific performance -- Agreement to sell -- Adverse possession – Plea of – Permissive possession -- Once the defendant himself pleaded that he is in possession under the agreement to sell and to retain possession relies on the part performance of contract to sell, he cannot plead adverse possession – Held, possession of a proposed vendee  under agreement to sell always is a permissive possession under the vendor till he pleads and proves that he gave up the permissive possession and re-entered into possession which was open and hostile to the knowledge of the true owner.

(Para 3, 28)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8 -- Guardians and Wards Act, 1890 (8 of 1890), Section 9 -- Agreement to sell – Minor’s interest – Suit for specific performance -- Agreement to sell executed by defendant-respondent No.1/ one of heir of deceased -- No power of attorney executed by the other heirs in favour of defendant-respondent No.1 -- Power of attorney produced was executed after the execution of the agreement to sell -- Further, defendant-respondent Nos.6 and 7 were minors, without any permission from the Guardian Court their share could not in any case be sold, no such permission by the Guardian Court is forthcoming – Ld. Appellate Court held “said agreement being opposed to public policy and law could not be treated as a valid agreement to give rise to the cause of specific performance” – No ground to interfere, appeal dismissed.

(Para 9, 10)

A. Punjab Tenancy Act, 1887 (XVI of 1887), Section 4(3)(5)(6) – Landlord -- Tenant -- Gair marusi tenant -- Merely because appellant is recorded as ‘Gair Maurusi’ in the revenue record, does not mean that he is a tenant over the suit property – There can be no tenancy unless there is a condition of payment of rent, though the rent may be payable in cash, kind or service etc. -- Held, it is inconceivable that there can be any tenancy without the condition of payment of rent, unless there is a contract to the contrary, absolving the tenant the liability to pay rent.

(Para 14, 15)

B. Punjab Tenancy Act, 1887 (XVI of 1887), Section 4(3)(5)(6) – Gair marusi tenant – Trespasser -- Adverse possession -- A party to the litigation cannot be allowed to take contrary stands to suit his convenience -- When in the earlier two litigations, it was ordered by the courts that appellant could be dispossessed in due course of law, he changed the stand in next litigations taking contrary plea that he had become owner of suit property by adverse possession -- In none of the earlier litigations decided earlier, he has been held to be tenant in the suit land, though his plea of possession has been upheld with further direction that he cannot be dispossessed except in due course of law – No evidence that tenancy was ever created and as such, his possession over the suit land is nothing less than that of a stranger / trespasser.

(Para 19)

C. Punjab Tenancy Act, 1887 (XVI of 1887), Section 4(3)(5)(6) – Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 9 --  Tenant of land – Eviction -- Jurisdiction of civil court --  When the person is inducted as a tenant on payment of rent and the rent is not paid --  Civil Court will not have jurisdiction and the landlord will have to seek his remedy before the Revenue Authorities to seek ejectment of such tenant or a tenant holding over, under the provisions of Punjab Tenancy Act, 1887 to be read with the provisions Punjab Security of Land Tenure Act.

(Para 22)

D. Punjab Tenancy Act, 1887 (XVI of 1887), Section 4(3)(5)(6) – Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 9 --  Gair marusi tenant – Suit for possession – Jurisdiction of civil court --  When the possession of person concerned on the suit land is without payment of rent, such as person is no more than a stranger or trespasser over the suit property -- In such a situation, his possession, howsoever long it may be, cannot be considered in the capacity of tenant in view of the definition of ‘landlord’, ‘tenant’ and ‘rent’ -- In this eventuality, it is only the Civil Court, which will have the jurisdiction to pass the decree of possession in favour of the landlord – Suit for possession decreed.

(Para 22, 23)

Maharashtra Regional and Town Planning Act, 1966 (Maharashtra Act No. XXXVII of 1966), Section 2, 126(1) -- Development Control Regulations for Greater Bombay, 1991, Regulation 3(7), 33, 34 -- Constitution of India, Article 300A – Compensation for surrendering land and developing amenities -- Abandonment of claim -- Delay and laches – Writ petitioners constructed Development Plan Roads at their own cost and voluntarily surrendered the reserved lands to the Mumbai Municipal Corporation – Writ petitioners were granted Floor Space Index (FSI) and/or Transferrable Development Rights (TDR) in the form of Development Rights Certificates (DRC) equal to the gross area of the plots surrendered by them – Writ dismissed on delay and laches by High Court.

-- Held, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made -- In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution -- Neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply in these cases.

(Para 2, 4.13, 18)

A. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 121 -- Partition of land – Value and location of land -- It is well-settled that besides the possession of the co-sharers over the portions in the joint land holding, the value and location as well as the nature of such land have also to be taken into consideration at the time of affecting the partition so that all the co-sharers get the portions of the land without any prejudice to their entitlement as per their respective shares in the total land under partition.

(Para 8)

B. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 121 -- Partition of land – Value and location of land -- Entire portion of the subject land abutting the road allocated to the appellants – Respondent No.5 has not been given even an inch of land out of the same which, by no stretch of imagination, can be termed to be justified and equitable at all.

(Para 8)