A. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Gift deed – Valuation of -- Consideration of -- Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed.

(Para 14,15)

B. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Gift deed – Non challenge to – Finding upon -- In absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift.

(Para 16)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure -- Findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, judgment of the High Court is liable to be set aside.

(Para 16)

Transfer of Property Act, 1882 (4 of 1882), Section 111 (a) to (h)  -- Lease – Determination of lease/tenancy -- Agreement to sell between Lessor and Lessee – Whether would ipso facto result in determination of the lease and severe the relationship of lessor and the lessee – Held, none of the conditions of Agreement provides much less in specific terms as to what will be the fate of the tenancy – None of the conditions can be construed for holding that the parties intended to surrender the tenancy rights -- A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property – Conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act – Tenancy in question between the parties did not result in determination and same remain unaffected.

 (Para 24-38)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 (c) -- Readiness and willingness – Finding of fact – A finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement -- It is a finding based on facts and once it is recorded, it becomes a finding of fact -- Unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court and also on Supreme Court.

(Para 21, 22)

B. Code of Civil Procedure, 1908 (V of 1908), Order 22 Rule 4(2) -- All Legal representatives – Right of -- It is a trite law that if out of all the legal representatives, majority of them are already on record and they contested the case on merits, it is not necessary to bring other legal representatives on record.

(Para 30)

C. Sale by Karta of Joint Hindu Family – Power of -- One cannot dispute the power of a Karta to sell the Joint Hindu Family property -- It is, indeed, inherent in him -- However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.

(Para 44)

A. Transfer of Property Act, 1882 (4 of 1882), Section 58 -- Mortgage deed -- Execution of -- Attesting witness of mortgage deed examined who stated about execution of mortgage deed -- Plaintiff has not adduced any reliable evidence to establish that mortgage deed was not executed by mortgagor by his free will or without any consideration -- Execution of mortgage deed proved in accordance with law.

(Para 11)

B. Registered Sale deed – Challenge to – Appreciation of oral evidence – Interference in -- Power of Appellate Court/ High Court -- Registration of the sale deed reinforces valid execution of the sale deed -- It carries a presumption that it was validly executed -- It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law – Advocate (DW-3) who has prepared the sale deed and the scribe of sale deed was having Bar experience of nine years in his evidence stated that on the instruction, he had prepared the sale deed and that sale deed was validly executed by Seller out of his free will and consent – Trial court upon consideration and weighing the evidence of Advocate and Doctor held that “…….the evidence of Shri Ahmad, Advocate is comparatively more acceptable and believable.” – Held, upon appreciation of oral evidence, when the trial court has recorded the findings that the evidence of Advocate (DW-3) is credible and acceptable, the first appellate Court and the High Court ought not to have interfered with the findings recorded by the trial court.

(Para 14-18)

C. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Oral Gift -- Mohammedan law -- Making oral gift is permissible -- Conditions for making valid oral gift under the Mohammedan law are:-

(i)  there should be wish or intention on the part of the donor to gift;

(ii)             acceptance by the donee; and

(iii) taking possession of the subject matter of the gift by the donee.

(Para 21)

D. Transfer of Property Act, 1882 (4 of 1882), Section 122 -- Oral Gift -- Mohammedan law -- Tenants were in occupation of the suit house -- Plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him -- Nothing is brought on record to show any steps to get the property mutated in his name -- Nothing on record to show that pursuant to the oral gift, plaintiff collected rent from the tenants or paid house tax, water tax, etc. -- In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the plaintiff ought not to have been accepted by the courts below.

(Para 22)

E. Transfer of Property Act, 1882 (4 of 1882), Section 60 -- Mortgage -- Right to redemption – Extinguishment of -- Right of redemption can be extinguished as provided in proviso to Section 60 of the Transfer of Property Act -- It can be extinguished either by the act of the parties or by decree of a court -- The expression “act of parties” refers to some transaction subsequent to the mortgage, standing barred from the mortgage transaction -- One of the mortgagees has purchased the property by the sale deed and thus, she purchased the entire equity of redemption by the execution of the sale deed, the mortgage qua the appellant has merged with the sale.

(Para 31)

A. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (d) – Constitution of India, Article 141 -- Plaint to be barred by any law -- Rejection of plaint -- Expression “law” occurring in Order 7 Rule 11 (d) includes judicial decisions of the Hon’ble Apex Court -- The authoritative pronouncement of the Hon’ble Apex Court is the law of land -- The law declared by Hon’ble Apex Court under Article 141 of the Constitution of India is law of land -- Law includes not only legislative enactments but also judicial precedents.

(Para 6)

B. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Article 17(iii), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- If a non-executant who is in possession of the property seeks to get the document annulled, then he is required to pay Court as per Article 17(iii) of the Second Schedule of the Act.

(Para 9)

C. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed not in possession – Challenge to Transfer deed – Ad-valorem court fee – If the non-executant who is not in possession of the property and he seeks not only the declaration of the instrument to be invalid, but also seeks possession thereof, then he is required to pay ad valorem Court fee as per market value under Section 7(iv) (c) of the Act.

(Para 9)

D. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- Suit for declaration to the effect that he is owner in possession of the suit property -- Transfer deed was claimed to be sham transaction and was not binding upon the right and title of the plaintiff -- Permanent injunction was also sought, restraining the defendant from dispossessing the plaintiff – Transfer deed under challenge in the suit does not show any consideration -- Plaintiff is not required to pay ad valorem Court fee.

(Para 2, 10)

Transfer of Property Act, 1882 (4 of 1882), Section 58(c) – Indian Evidence Act, 1872 (1 of 1872), Section 92 – Sale with condition for repurchase – Sale with conditional mortgage – Oral evidence -- Recitals in the document that transfer of interest with vesting of absolute rights upon the respondents are clear indications that the document is only a sale with condition for repurchase -- Admittedly pursuant to document possession was handed over to the respondent(s) vesting on them the absolute right to enjoy the property – Document does not show that the amount of Rs.3,000/- was taken as a debt or loan; nor does the document show that the income from the land was to be appropriated towards the interest by the respondent(s) – Any oral evidence adduced in this regard cannot be looked into in view of the prohibition under Section 92 of the Indian Evidence Act.

(Para 9,10)

A. Specific Relief Act, 1963 (47 of 1963), Section 14(3)(c)(i) – Construction of building – Vague contract -- Specific performance of -- Use of vague terms in the agreement such as “first class materials”, “residential apartment of various sizes and denomination”, “etc.”, “similar condition”, and “special fittings”, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out – Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned -- Further, agreement states that the owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession -- However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement -- Agreement between the parties is vague -- In such a case, specific performance cannot be granted.

 (Para 26, 27)

B. Specific Relief Act, 1963 (47 of 1963), Section 14(3)(c)(ii) – Construction of building – Compensation can be quantified -- Specific performance of -- Before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner -- Developer incurred an expenditure of Rs.18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses -- Alleged losses/damages incurred by the Plaintiff can be quantified -- In such a case, specific performance cannot be granted.

(Para 27)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance of contract -- Readiness and willingness – Evidence of -- Capacity to pay the balance sale consideration -- Plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration -- Plaintiff could not produce any document to show that he had the amount with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money -- Held, plaintiff has not been able to prove his readiness and willingness on his part.

(Para 7)

Specific Relief Act, 1963 (47 of 1963), Section 14 -- Specific performance of contract -- Third party rights have been crystallized into sale deed – Sale deed executed on 27.07.2006 cannot be set aside as the suit was filed on 23.02.2008 -- Plaintiff granted refund of earnest money of Rs.50,000/- along with interest.

(Para 9)

A. Specific Relief Act, 1963 (47 of 1963), Section 20 – Constitution of India, Article 136 -- Suit for specific performance – Decree of suit -- On reading the correspondence between the parties, plaintiff has throughout been ready and willing to perform its obligations under the agreement to Sell -- Suit property is not readily capable of valuation – Monetary compensation would not suffice and be an adequate alternative to specific performance -- Plaintiff discharged the mortgage by paying a sum of Rs. 17 lakhs which was almost three times the amount of the consideration mentioned in the agreement – No substantial or grave injustice is caused to the defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required.

(Para 32, 48-62)

B. Specific Relief Act, 1963 (47 of 1963), Section 20 -- Specific performance of undivided share -- If the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of the other heirs certainly can be transferred.

(Para 51)

Specific Relief Act, 1963 (47 of 1963), Section 20 -- Suit for specific performance of agreement to sell immovable property -- Readiness and willingness -- Plaintiffs shown their presence in the office of the Sub-Registrar and then sent a notice to the defendant within two weeks thereafter, and the suit for specific performance having been instituted about 9 months thereafter – Held, Plaintiffs have duly proved that they were ready and willing to perform their part of the contract -- Plaintiffs having duly paid 2/3rd of the consideration money and remaining willing to pay along with stamp duty and registration charges, hence are entitled to a decree of specific performance.

(Para 21-25)

Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Specific Relief Act, 1963 (47 of 1963), Section 36 – Limitation – Injunction – Whether demarcation of land will save limitation – Canal in question had been constructed more than 40 years ago and neither the plaintiffs nor their predecessors had ever objected to the construction of the canal either at the time of construction or at any stage during the intervening period till the demarcation proceedings referred to in the suit had taken place --  Act of the plaintiffs in issuing legal notice and getting the demarcation conducted shall not impact the bar of limitation qua the plaintiffs -- Land in question was never acquired and the construction of the canal was never assailed by any landowner, nor they ever approached any authority to lodge their protest -- However, the fact remains that the canal in question has been in existence and in active use for over four decades and defendants have rightly been deemed to be its owners by efflux of time.

(Para 13-15)

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Sale-deed  -- Challenge to -- Allegation of fraud – Pleadings -- To prove averments of fraud and misrepresentation there has to be specific pleadings.

(Para 6)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Sale-deed – Execution of – Non-encashment of cheques by Vendor – Whether sale complete -- Out of sale consideration of Rs.7,21,000/-, the appellant stated to have made payment of Rs.5,21,000/- in cash and Rs.2 lacs by banker's Cheque -- It is prerogative of the vendor to present and encash the cheque but the fact remains that the sale, as per Section 54 of the Transfer of Property Act, 1882, was complete – Sale is held to be with consideration.

(Para 6, 7)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 20 -- Court Fees Act, 1870 (7 of 1870), Section 7(iv)(a) -- Suit for specific performance – Rejection of plaint -- Subsequent vendee filed counter claim for possession – Advalorem court fee – Requirement of – Suit for possession of land where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed permanently to such revenue, then the amount of court fee shall be computed on 10 times of the revenue so payable -- Accordingly for the relief of possession the claimant was required to pay advalorem court fee on 10 times of the land revenue of the suit land -- Term “land” is not defined anywhere in the Court Fees Act -- It should, therefore, be incorporated in the ordinary sense and cover all kinds of land regardless of the use to which it is put or may be likely to be put – Application for rejection of plaint rightly dismissed.

(Para 11-13)

A. Specific Relief Act, 1963 (47 of 1963), Section 10, 34 -- Agreement to sell immovable property -- Plaintiff did not perform his part of contract – Termination of Contract by Seller – Suit for Specific performance of agreement by Purchaser – Maintainability of suit -- Plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law -- In the absence of such prayer by the plaintiff the original suit filed by him for grant of decree for specific performance in respect of the suit property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.

(Para 16,17,28)

B. Specific Relief Act, 1963 (47 of 1963), Section 20(1)(2) -- Agreement to sell immovable property – Time – Value of -- Suit for Specific performance of agreement by Purchaser – In a case of sale of immovable property, time is not the essence of the contract – However, if the parties agreed to a specified time in the agreement to perform their part of the contract, then time is the essence of the contract and parties shall adhere to the same -- Plaintiff did not pay the remaining consideration amount within the stipulated period of 7 months as agreed -- Date of the institution of the original suit was nearly 11 months after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff – In respect of readiness and willingness on the part of the plaintiff, the court should have exercised its discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act -- Plaintiff is entitled to compensation as agreed upon by him under the Agreement of Sale -- Grant of the decree for specific performance by the High Court is wholly unsustainable in law.

(Para 16,18-20, 27,28)

C. Specific Relief Act, 1963 (47 of 1963), Section 16(c), 20(1)(2), 21(2) – Agreement to sell immovable property – Consideration – Ready and willingness -- Plaintiff had not produced any document to show that he had the balance sale consideration amount to pay to the defendants to get the sale deed executed in his favour -- Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them -- Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the original suit along with other attending circumstances and further the amount of consideration which he has to pay to the defendants must be proved by the plaintiff -- Plaintiff in a suit for specific performance must be ready and willing to carry out his part of the agreement at all material times – Plaintiff is not entitled for the decree of specific performance in respect of the suit schedule property.

(Para 21-25,28)

A. Indian Easement Act, 1882 (V of 1882), Section 52 – License – Licensee – Defendants are occupying the disputed premises on the basis of permission granted by its owners, who are the real brothers or their legal representatives, without any condition to pay any rent – Since there is no lease nor any rent deed, it is nothing more than a license, which means to give a license or permit a person to occupy when the land owner allows to do work or perform an act on the land owner’s property – Visitor has a license to enter into the property – This kind of license need not be written, signed and registered – It may be oral or it may be implied by the relationship or actions of the parties.

(Para 7)

B. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Ex-parte Decree – Compromise Decree – Decree after contest – Binding effect -- A decree of a Court of law either passed after contest or passed without contest or passed ex-parte or passed on the basis of compromise or any other form is a decree, which is, by all means, binding on all the Courts.

(Para 10)

C. Code of Civil Procedure, 1908 (V of 1908), Section 2 – Compromise decree – Change of Presiding officer – Effect of -- Trial Court declared the said decree as void and non-est and is not binding upon the court -- This is obviously perverse, as the decree has been passed by the same Court -- Though, the Presiding Officer might have been changed, yet 'Court' means 'Court' and not the Presiding Officer -- In either case, the said decree was passed by a co-ordinate Bench, which has not been challenged anywhere, nor even in present suit, thus, it has attained finality.

(Para 10)

D. Indian Easement Act, 1882 (V of 1882), Section 52 – Licensee – Compromise decree – Non-registration of – Objection to -- A licensee has no right to claim that any memorandum of understanding of family settlement among the owners was not registered, and the suit filed on the basis of it earlier, was not maintainable, in which the defendants were not parties nor their right or title has been affected by that decree.

(Para 12)