SUPREME COURTS ON
LAND & PROPERTY
SUMMARY OF JUDGMENTS OF SUPREME COURTS
Compilation:
Adv.C.K.SIVADASAN, M.A.(PMIR),
LL.B., PGDADR(NALSAR), PGDT, DACT, C.Coun.
“Ubi jus ibi
remedium”
(THERE IS NO WRONG WITHOUT REMEDY)
LEGAL
RESEARCH CENTRE
ASSIST
YOU TO FIND THAT REMEDY
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FOLDER NO – 6001
LACK OF DOCUMENTS OF DISPOSSESSION
Respondent had filed a statement on giving
details of the vacant land he was holding in excess of ceiling limit
prescribed under the Act. The competent authority under the Act surveyed the
land and the respondent was served with a draft statement under Section 8(3)
of the Act calling for objection. No objection was preferred by the
respondent and it was found that he was holding excess land measuring
52,513.30 sq. meters and an order to that effect was passed by the competent
authority vide his proceeding. The competent authority later issued a
notification under Section 10(1) of the Ceiling Act, which was published in
the Government Gazette giving the particulars of the vacant land held by the
respondent. The competent authority then issued a notification, stating the
land shall be deemed to have been vested with the Government free from all
encumbrances. Then competent authority informed the Bandobast Chakbandi
Adhikar that the surplus land declared as per the Notification stood vested
in the State Government. Then prescribed authority issued a notice under
Section 10(5) of the Act directing the respondent to hand over possession of
the land declared as surplus to a duly authorized person. Aggrieved by the
same, the respondent preferred an appeal before the District Judge,
contending that before passing the order no notice, as contemplated was
served on him. The appeal was allowed and the order was quashed.
Urban Land (Ceiling and Regulation) Repeal Act,
1999: s. 3 – Saving clause – Held: No documents have been produced by the
State to show that the respondents had been dispossessed before coming into
force of the Repeal Act and, therefore, the High Court is right in holding
that the respondents are entitled to get benefit of s. 3 of the Repeal Act.
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FOLDER NO – 6002
UNPAID PAYMENT & ALLOTMENT OF PLOT
The appellant is the widow of the original
applicant, who was allotted a site bearing measuring 6 meters x 9 meters in
Vijayanagar, by the Mysore Urban Development Authority, under general
category. The allottee made part payment of the consideration amount,
however, the payment was not made within the stipulated time. The husband,
however, passed away, as a result of which the appellant made an application
for allotment of the plot in her name. This application was accepted and the
plot was allotted in the name of the appellant. The total price of the site
was fixed at Rs.10,000/-. The appellant deposited Rs.1157/- along with the
application and Rs.1500/- within the stipulated fifteen days of receipt of
the allotment letter. She was to pay Rs.7343/- within ninety days from the
date of the issuance of the grant certificate. By mistake, being illiterate,
she deposited only Rs.5000/-, leaving a sum of Rs.2343/- unpaid. The Mysore
Urban Development Authority issued a notice indicating that the total price
of the site is Rs.10,000/-, out of which the allottee had paid only
Rs.7657/-, thus leaving a balance, to be paid, of Rs.2343/-. She was directed
to give proof of payment within 15 days of the receipt of the show cause
notice in case the entire consideration amount has been paid. It appears that
the appellant made an application seeking extension of time through
application. However, by order, the aforesaid request of the appellant was
rejected and the allotment made in her name was cancelled. Whilst rejecting
the claim of the appellant, the respondent - Mysore Urban Development
Authority notices that after the death of the husband, the appellant was
granted the site. It was noticed that "the sale consideration of the
said site is Rs.10,000/-, out of the sale consideration, she paid total
amount of Rs.7657/- but she has not paid the remaining sale consideration of
Rs.2343/- till this day, therefore, now there is no provision to receive the
sale consideration of the granted site". On the basis of the above, the
site allotted to the appellant was cancelled.
Held: It may be that the Development Authority did not have any
discretion either to extend the time for payment or to regularize the
allotment which had been initially made in favor of husband of appellant - In view of peculiar facts and
circumstances of the case, and, purely in the interest of justice on
humanitarian grounds, in exercise of jurisdiction under Art. 142 of the
Constitution, it is directed that the site be regularized and registered in
her name
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FOLDER NO – 6003
DISPOSSESSION PRIOR TO NOTIFICATION
Dispossession of land owner prior to notification u/s 4(1) - Held: In
case the land owner has been dispossessed prior to the issuance of the
preliminary Notification u/s 4(1) of the Act, it will be open to such land
owner to recover the possession of his land by taking appropriate legal
proceeding - In case the possession is not recovered, he would be entitled to
rent or damages for use and occupation for the period Government retained
possession of the property.
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FOLDER NO – 6004
PART WITHDRAWAL FROM ACQUISITION
By Notification dated 27.1.1990 issued u/s 4(1) of
the Land Acquisition Act, 1894, land admeasuring 246.931 acres was proposed
to be acquired for the purpose of construction of residential/commercial
buildings under Planned Development Scheme by the Meerut Development
Authority (MDA). Declaration u/s 6 read with ss. 17(1) and (4) was made on
18.3.1990. Notice u/s 9 was issued. Award was passed on 17.3.1992. By
resolution dated 17.9.1997, the MDA decided to withdraw the acquisition of
the land except 42.018 aces for which compensation had been paid. However,
the State Government decided not to accede to the decision of MDA for
de-requisition of the land.
HELD: It is the
settled proposition of law that once the land is acquired and mandatory
requirements are complied with including possession having been taken the
land vests in the State Government free from all encumbrances. Even if some
unutilised land remains, it cannot be re-conveyed or re-assigned to the
erstwhile owner by invoking the provisions of the Land Acquisition Act.
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FOLDER NO – 6006
POWER OF THE STATE GOVERNMENT TO ALLOW
CHANGE IN USE OF LAND
Respondents herein purchased a plot of land, with
a house, on 9.9.2002, situated in a residential area by way of a registered
sale deed. Later, an application under the Rajasthan Municipalities (Change
of Land Use) Rules, 2000 was preferred
for conversion of land use from residential to commercial. They also deposited
self assessment amount of Rs.10,500/- for the said purpose. Municipal
Corporation, while considering the said application gave a public notice
inviting objections, if any, under Rule 4(1) of the 2000 Rules. The Land Use
Change Committee of the Corporation, approved the request for conversion of
land use. Municipal Corporation then demanded an amount of Rs.5,70,300/- as
land use conversion charges in accordance with the 2000 Rules.
Rajasthan
Municipalities Act 1959 [as amended by the Rajasthan Municipalities Amendment
Act 1999 (Act No.19 of 1999)] – s.173-A – Interpretation of – Power of the
State Government to allow change in use of land on payment of conversion
charges
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FOLDER NO – 6007
TERMINATION OF LEASE
The subject-land admeasuring 1891.64 square metres was leased to
respondent no. 2 by the appellant. However, as the lessee committed default
in payment of the outstanding amount and interest, the lease was terminated
by order. Possession of the subject land was taken under the Panchnama, a
copy whereof was sent to the lessee with a certificate that the possession
had been taken. Respondent no. 1 filed suit Suit for a declaration and
permanent injunction, questioning the termination of the lease by the
appellant. The plaintiff-respondent no. 1 claimed that he had purchased the
suit land from respondent no. 2 in the year 1991, and on that basis had asked
the appellant in the year 1994 to transfer the lease rights in his favour.
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FOLDER NO – 6008
CONSIDERATION PAID BUT DEED NOT REGISTERED
The plaintiffs-appellants filed a suit for permanent injunction
restraining the defendant-respondents from interfering with their peaceful
possession and enjoyment of the suit property inter-alia pleading that
plaintiff no.1 was the absolute owner of the suit property which was
purchased from defendant no.1 and that though the sale deed was not
registered, the entire sale consideration had been paid to defendant no.1.
The plaintiffs-appellants further filed a separate application under Order 39
Rule 1 and 2 CPC seeking ad-interim relief restraining the defendants from
interfering with their peaceful possession and enjoyment. The
defendant-respondents denied the purchase of suit property by the
plaintiff-appellants from defendant respondent no.1. They pleaded that
plaintiff no.1 was a stranger; that defendant no.1 was the owner of the
property and plaintiff no.2 was a tenant under him.
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FOLDER NO – 6009
POSSESSION OF GUARDIAN
Plaintiff-respondent
No. 1 filed a suit for title over the suit property. The case of the
plaintiff was that the suit property originally belonged to her father ‘S’.
The property was being managed by defendant No. 1 as he was appointed as
guardian of ‘S’ by the Court. Defendant No. 1 taking advantage of his
position, got executed two ‘zerpesgi’ deeds, one in favour of his
nephew ‘M’ and another in favour of one ‘D’ without any consideration. After
the death of ‘S’, the property was in possession of his widow ‘P’ and the
plaintiff was a minor. After 2 to 3 months of the death of ‘S’, ‘P’ married
‘M’, and after the remarriage, plaintiff inherited the suit property.
Defendant No. 1 was still in possession of the property. The defendants
contested the suit, stating that ‘S’ had taken possession of his property
after attaining majority. ‘S’ orally gifted some part of land to defendant
No. 1 in lieu of his services as guardian and also for performing shraddh of
his mother, and that ‘zerpeshgies’ were genuine transactions. - A Guardian
appointed by Court - oral gift - civil death of the widow
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FOLDER NO – 6010
PURCHASE OF ACQUIRED LAND
Certain land including
the land in dispute was acquired by appellant-Development Authority in
1960-70. The respondent No. 1 purchased the land in dispute from its original
owner in 1995. He filed civil suit against the appellant-Authority for
permanent injunction. The suit was
dismissed as not
maintainable.
HELD: Courts have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred. The jurisdiction of
civil court with regard to a particular matter can be said to be excluded if
there is an express provision or by implication it can be inferred that the
jurisdiction is taken away. An objection as to the exclusion of civil court’s
jurisdiction for availability of alternative forum should be taken before the
trial court and at the earliest failing which the higher court may refuse to
entertain the plea in the absence of proof of prejudice.
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FOLDER NO – 6011
EVACUEE PROPERTY & EARTH FILLING
On 21-11-1980, the Custodian
of Evacuee Property,
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FOLDER NO – 6012
SUCCESSIVE NOTIFICATIONS OF ACQUISTION
The appellants
had been conferred title over the land in Khasra No.307 admeasuring 3 bighas
and 3 biswas situate in the revenue estate of village Kilokri,
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FOLDER NO – 6013
NON-CONTESTING DEFENDANT
The question that arose
for determination in the present appeal was whether the suit filed by the
plaintiffs/ respondents seeking a decree for declaration, partition and
injunction against the appellants abated on the failure of the plaintiffs to
file an application for substitution of the Legal Representatives of a
deceased defendant ‘V’.
HELD: This Court is inclined to agree with the order of the First
Appellate Court that the suit had not abated no matter for a reason different
from the one that prevailed with that Court. It is common ground that ‘V’-
defendant was proceeded ex parte as he had not appeared to contest the suit
or file a written statement. Substitution of the legal representatives of
such a defendant could be legitimately dispensed with by the trial Court. Be
that as it may, so long as the power of exemption was available to the trial
Court, the same could and ought to have been exercised by the First Appellate
Court while hearing an appeal assailing the dismissal of the suit as abated.
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FOLDER NO – 6014
NOTIFICATION UNDER PRINCIPAL Act AFTER
AMENDMENT Act & POWER OF URGENCY
Appeal arising out of acquisition of appellants’ land for construction
of a bus stand. The preliminary notification u/ s 4 was issued on 01.5.1980.
After lapse of about 7 years on 19.03.1987, the State government issued
declaration u/s 6 without complying with the mandate of s. 5-A and in that
declaration it was stated that it has invoked its powers conferred u/s 17(1)
read with s. 17 (4) of the 1953 Act and dispensed with the provisions of s.
5-A. Had the State government intended to hold and complete the inquiry u/s
5-A, it could have been done in few months. However, no steps for
commencement of the inquiry u/s 5-A were even taken by the State government.
Thus, a very valuable right conferred on the land owner/person interested u/s
5-A has been taken away without any justification. the questions for
consideration before the Court were: (i) “Whether invocation of power of
urgency and dispensation of inquiry u/s 5-A after 7 years of issuance of
preliminary notification u/s 4 of the 1953 Act are legally sustainable?” and
(ii) “Whether preliminary notification u/ s 4 of the Rajasthan Land
Acquisition Act, 1953 issued on 01.05.1980 has lapsed since declaration u/s 6
of that Act was made on 19.03.1987 after the expiry of two years from the
commencement of the Rajasthan Land Acquisition (Amendment and Validation)
Act, 1981?”. The counter affidavit filed by respondent no. 4, i.e., Rajasthan
State Road Transport Corporation is not relevant as s. 17 confers power of
urgency only on the State government alone and it is the State government
that has to justify that the urgency was so imminent that dispensation of
inquiry u/s 5-A was necessary. The exercise of the power by the State
government u/s 17(1) read with s. 17(4) of the 1953 Act and dispensation of
s. 4(5) notice under the 1953 Act was issued by the state government in 1980
and declaration u/s 6 was made on 19.03.1987. Having regard to clear and
unambiguous mandate of s. 5(2) of the 1981 Amendment Act, preliminary
notification dated 01.05.1980, which was followed by notice u/s 4(5) before
the commencement of the 1981 Amendment Act, has lapsed and does not survive
since declaration u/s 6 has been made much beyond the time limit prescribed
in law. The impugned orders are set aside. It is declared that preliminary
notification dated 01.05.1980 has lapsed and the declaration made on
19.03.1987 is legally unsustainable.- Art. 300-A –
Eminent domain –larger public interest as against individual
interest
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FOLDER NO – 6015
INTEREST ON AMOUNT PAYABLE & CONFLICT
BETWEEN ILLUSTRATION & CLARIFICATION
In the instant appeal
filed by the claimants, the questions for consideration before the Court
were: (i) whether with respect to the delayed payment of the principal
amount, the appellant is entitled for any interest towards the amount paid in
cash and thereby the Circular dated 24.11.1986, contrary to such extent is
liable to be set aside”; and (ii) “whether the appellant is entitled for
payment of interest as per Circular
dated 24.11.1986 or as a matter of general rule.”
HELD: The amount payable to the land-owner/ landlord for the
extinguishment of their rights is to be paid in the manner prescribed u/s 51
of the Karnataka Land Reforms Act, 1961. Substantive provision of ‘mode of
calculation’ as prescribed u/s 51 has been clarified by Circular dated
24.11.1986. If the illustration is in conflict with the clarification of the
substantive law/ provision or if the illustration is vague, the clarification
will prevail over the illustration. In such case, a person who is entitled to
the interest as per the clarification cannot be deprived of or denied his
right relying on the illustration.
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FOLDER NO – 6016
LAND RESERVED FOR ACQUISITION
Appeals filed by the
Municipal Council, the question for consideration before the Court was: whether
reservation of the parcels of land owned by the respondents in the Regional
plans/Development plans prepared under the Maharashtra Regional and Town
Planning Act, 1966 would be deemed to have lapsed because the same were not
acquired or no steps were commenced in that respect within six months of the
service of notice u/s 127 of that Act.
HELD: Section 126(1) of the Maharashtra Regional and Town Planning Act,
1966 lays down that when any land is required or reserved for any of the
public purposes specified in any plan or scheme, the Planning Authority,
Development Authority, or any Appropriate Authority can acquire the same as
mentioned therein. Section 126(2) empowers the State Government to make a
declaration u/s 6 of the Land Acquisition Act, 1894. Proviso to this
sub-section fixes the time limit of one year for making such declaration.
Section 126(3) lays down that on publication of a declaration u/s 6 of the
1894 Act, the Collector shall proceed to take order for the acquisition of
the land under the 1894 Act and the provisions of that Act shall apply to
such acquisition with the modification regarding market value as specified in
Clauses (i) to (iii) of that sub-section. Section 126(4) contains a non
obstante clause and provides that if a declaration is not made within the
period referred to in sub-s. (2), or having been made, such period expired at
the commencement of the Maharashtra Regional Town Planning (Amendment) Act,
1993, the State Government can make fresh declaration under the 1894 Act. Section
127 of the 1966 Act lays down that if any land reserved, allotted or
designated for any purpose specified in any plan prepared and sanctioned
under the 1966 Act is not acquired by agreement within ten years from the
date on which a final Regional plan or final Development plan comes into
force or if proceedings for the acquisition of such land under the 1966 Act
read with the 1894 Act are not commenced within that period, the owner or any
person interested in the land may serve notice on the Planning Authority,
Development Authority or Appropriate Authority to that effect. That section
further lays down that if the land is not acquired or no steps are commenced
for its acquisition within six months from the date of service of notice, the
reservation etc. shall be deemed to have lapsed and the land shall be deemed
to have been released from such reservation etc. so as to enable the owner to
develop the same.
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FOLDER NO – 6017
RECTIFICATION OF SETTLEMENT DEED &
UNDUE INFLUENCE
The father of the appellant and respondent no. 1 executed two
registered settlement deeds on 27.8.1981 transferring House No. 23 in the
name of his daughter (respondent No. 1) and House No. 22 in the name of his
son (the appellant). The appellant filed suit for issuance of direction to
defendant/ respondent no.1, to execute a Deed of Rectification and further to
restrain her from interference with the appellant’s possession of the suit
property. It was the case of the plaintiff-appellant that after the
settlement deed, the father of the parties realized that House No. 23 which
was given to the daughter, ought to have been given to him and House No. 22
to the daughter. Thus, the parties to give effect to the real intention of
their father decided to exchange the properties given to them, and in
furtherance thereof, executed an Agreement Deed to exchange the same, but
respondent no. 1 failed to give effect to the same. During the pendency of
the suit, the settler and the appellant were stated to have executed a
Rectification Deed by which the property in Door No.23 was given to the
appellant. The said deed was signed by two witnesses. Respondent
no.1/defendant filed suit for declaration that the agreement, an unregistered
document, was null and void, being a forged document, and that she, under
undue influence, put her signature on the blank non-judicial stamp papers. – Contract induced by undue influence – The mistake
- rectify the error.
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FOLDER NO – 6018
ALIENATION
OF PROPERTY WITHOUT RIGHT & PRESUMPTION OF DEATH
Plaintiff, as the then Mahant of an asthal or math was entitled
to recover from the defendants different properties, endowments of the math,
then in their possession. These properties was alienated without warrant by
deceased, the immediate predecessor as mahant of the plaintiff. If a person
has not been heard of for seven years, there is a presumption of law that he
is dead; but at what time within that period he died is not a matter of
presumption, but of evidence, and the onus of proving that the death took place
at any particular time within the seven years lies upon the person who claims
a right to the establishment of which that fact is essential.
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FOLDER NO – 6019
AUTHORITY TO DECIDE ON RIGHT TO PROPERTY
The appellant brought a suit for partition on the basis that he
was the son of Rambhajan, the predeceased son of one Jagram, the owner of the
property sought to be divided. The plaintiff-appellant has come to this
Court, urging before us the only point that the civil court had no
jurisdiction to decide the question of title, turning on his sonship, which
had already been held in his favor by the consolidation authorities.
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FOLDER NO – 6020
DECLARATION
TO CONSOLIDATION AUTHORITIES
U.P. Consolidation of Holdings Act, 1953: Sections 4(2),
5(2) and 49--Declaration and adjudication of tenure holders--Whether falls
within scope of adjudicatory functions of consolidation authorities.
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FOLDER NO – 6021
PRESUMPTION
OF DEATH
The property in dispute (in the suit) measures 10 feet east to
west and 125 feet north to south in
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FOLDER NO – 6022
INHERITANCE
Two brothers, Hira Singh and Jagjit Singh were convicted in a
murder case. During their confinement in jail, Jagjit Singh absconded and
Hira Singh was granted pardon. After release Hira Singh took possession of
the entire land including the share of his brother, Jagjit Singh. Hira Singh
died sometime in the year 1920 and on his death, one Smt. Har Kaur, wife of a
collateral took possession of the land. Rulia Singh, the adopted son of Hira
Singh questioned the mutation as well as possession of Har Kaur and,
therefore, she filed a suit for declaration that Rulia Singh was not validly
adopted by Hira Singh and also sought permanent injunction restraining Rulia
Singh from interfering with her possession.
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FOLDER NO – 6023
BARRING THE JURISDICTION OF A
CIVIL COURT
(1)
If there is express provision in any Special Act barring the jurisdiction of
a civil court to deal with matters specified there under the jurisdiction of
an ordinary civil court shall stand excluded.
(2)
If there is no express provision in the Act but an examination of the
provisions contained therein lead to a conclusion in regard to exclusion of
jurisdiction of a civil court, the Court would then inquire whether any
adequate and efficacious alternative remedy is provided under the Act; if the
answer is in the affirmative, it can safely be concluded that the
jurisdiction of the civil court is barred. If, however, no such adequate and
effective alternative remedy is provided then exclusion of the jurisdiction
of civil court cannot be inferred.
(3)
Even in cases where the jurisdiction of a civil court is barred expressly or
impliedly the court would nonetheless retain its jurisdiction to entertain
and adjudicate the suit provided the order complained of is a nullity.
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FOLDER NO – 6024
PRESUMPTION
OF DEATH
A presumption assists a party in
discharging the burden of proof by taking advantage or presumption arising in
his favor dispensing with the need of adducing evidence which may or may not
be available. A presumption of fact or law which has gained recognition in
statute or by successive judicial pronouncements spread over the years cannot
be stretched beyond the limits permitted by the statute or beyond the
contemplation spelled out from the logic, reason and sense prevailing with
the Judges, having written opinions valued as precedents, so as to draw such
other inferences as are not contemplated. If an issue may arise as to the
date or time of death the same shall have to be determined on evidence-direct
or circumstantial and not by assumption or presumption. The burden of proof
would lie on the person who makes assertion of death having taken place at a
given date or time in order to succeed in his claim. Rarely may it be
permissible to proceed on premise that the death had occurred on any given
date before which the period of seven years' absence was shown to have
elapsed.
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FOLDER NO – 6025
CERTIFICATE OF PURCHASE -
CONCLUSIVE PROOF OF THE ASSIGNMENT
When
Kerala Land Reforms Act, 1963 came into force there was prohibition in
holding land in excess of the ceiling limit fixed thereunder. Taluk Land
Board is one of the authorities under the Act to fix the area of the land in
possession of landholders. One Moosakutty Haji made a declaration of the
various lands in his possession. (His widow is arrayed as respondent No.1 in
these appeals since Moosakutty Haji had died). The Taluk Land Board found
that the said Haji had 877.500 acres of land and on it premise determined
that the excess land in his possession (beyond the ceiling limit) was 788.72
acres. Moosakutty Haji was directed to surrender the said excess land.
The
legal implications of Section 72-K of the Act which rendered a Certificate of
Purchase as "conclusive proof of the assignment” to the tenant of the
right, title and interest of the landowner and the intermediaries, if any,
over the holding or the portion thereon to which the assignment relates. When
the enactment enjoined that any evidence would be treated as conclusive proof
of certain factual position or legal hypothesis the law would forbid other
evidence to be adduced for the purpose of contradicting or varying the
aforesaid conclusiveness.
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FOLDER NO – 6026
CERTIFICATE OF PURCHASE - CONCLUSIVE PROOF OF THE ASSIGNMENT
Unless the certificate of
purchase is shown to be inaccurate on its face or is vitiated by fraud, it
has got its own conclusive value. Fraud and collusion are vitiating
circumstances which are to be specifically pleaded and proved and the
instrument which is assailed on the ground of fraud or collusion is only
voidable and not void.
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FOLDER NO
– 6027
CERTIFICATE OF PURCHASE - CONCLUSIVE PROOF OF THE ASSIGNMENT
It is the plaintiff's case
that his mother a
kudikidappukari was enjoining the 10 cents of property scheduled in the plaint. The mother filed on the file of the Land Tribunal, Kannur for purchase of kudikidappu of the 10 cents scheduled in the plaint. The southern portion of the property of the 10 cents schedule is B schedule. It is averred in the plaint that the defendant trespassed into the plaint B schedule property and put up a pit latrine with cudgan leaves.
Until it is established that
a purchase certificate was obtained by practicing fraud or collusion, the
certificate is a conclusive document of title. This is a well-settled legal
position, settled by the High Court and Supreme Court in a catena of cases.
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FOLDER NO – 6028
CERTIFICATE OF PURCHASE - CONCLUSIVE PROOF OF THE ASSIGNMENT
If any allegation of fraud is
imputed in the issue of the purchase certificate, that will not clothe the
civil court with any authority to examine that question in view of the
mandate under Section 72K (2) of the Act, which reads thus: The certificate
of purchase issued under sub section (1) shall be conclusive proof of the
assignment to the tenant of the right, title and interest of the landowner
and the intermediaries, if any, over the holding or portion thereof to which
the assignment relates.
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FOLDER NO – 6029
JURISDICTIONAL RESTRICTION
The whole
object of this provision of the Act was to remove from the jurisdiction of
ordinary civil and revenue courts, for the duration of consolidation
operations, all disputes which could be decided in the course of consolidation
proceedings before special courts governed by special procedure. Such
adjudication by consolidation authorities were considered more suitable, just
and efficacious for speedy decisions which had to be taken in order to enable
consolidation operations to be finalised within a reasonable time.
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FOLDER NO – 6030
POSSESSION CANNOT BE DEEMED
TO BE ADVERSE TO OTHER CO-SHARERS
If a
property belongs to several co-sharers and one co-sharer is in possession of
the entire property, his possession cannot be deemed to be adverse to other
co-sharers and he must be deemed to be in possession on behalf of all other
co-sharers and adverse possession cannot be founded on the basis of such
exclusive possession, unless there has been ouster of other co-sharers.
Regarding mutation in the revenue record that mutation in the name of one
co-sharer cannot be any indication of adverse possession until it is shown
that it was obtained after a clear declaration to the effect that title of
other co-sharers was denied.
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FOLDER NO – 6031
PRESUMPTION
OF DEATH
The period of seven years is, however,
strictly insisted upon, and it is often pointed out that, though the rule is
to some extent illogical, a period of six years and 364 days is not enough.
Nor is there any presumption that the subject died from any particular cause,
died childless or died celibate, though these matters may be capable of
inference on the evidence, as a question of fact. It should be remembered
that it is always open to the court to infer death (or that someone is alive)
as a matter of fact, as it is to make any other proper inferences from the
evidence.
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FOLDER NO – 6032
PRESUMPTION
OF DEATH
No question of the presumption arises in
such a case; it is a matter of circumstantial evidence. What is sometimes
called the 'presumption of continuance'-an instance of which is that if a
person is shown to be alive at a certain time, his continuing life may be
inferred - is no more than an example of such an inference, and will yield to
the presumption of death where the latter applies.
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FOLDER NO – 6033
CERTIFICATE OF PURCHASE - CONCLUSIVE PROOF OF THE ASSIGNMENT
If a certificate of purchase is issued by the Land Tribunal to
any such person and he tenders it in proceedings before the Taluk Land Board,
the Board is required by law to treat it as conclusive proof of the fact that
the right, title and interest of the landowner (and intermediary) over the
land mentioned in it has been assigned to him. It is however not the requirement
of the law that the certificate of purchase shall be conclusive proof of the
surplus or other land held by its holder so as to foreclose the decision of
the Taluk Land Board.
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FOLDER NO
– 6034
CONCLUSIVE VALUE OF PURCHASE
CERTIFICATE
Unless
the certificate of purchase is shown to be inaccurate on its face or is
vitiated by fraud, it has got its own conclusive value. When the enactment
enjoined that any evidence would be treated as conclusive proof of certain
factual position or legal hypothesis the law would forbid other evidence to
be adduced for the purpose of contradicting or varying the aforesaid
conclusiveness.
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FOLDER NO – 6035
RECOVERY
OF POSSESSION ON THE STRENGTH PREVIOUS POSSESSION
Respondent claimed that the suit property, described in the
plaint schedule as four cents was in the possession of her late husband,
Gefferi Thangal for more than thirty years and he effected improvements in
the property constructing bund on the western side. After death of Gefferi
Thangal deceased respondent continued in possession of the property. While
so, she got assignment of the said property in L.A. Proceeding. There is a
water chal on the east of the suit property. She used to take water from the
said chal to her paddy fields on the south and west. She also used to have
access through the suit property to the paddy field belonging to her. While
so, appellant filled up the water chal on the eastern side and trespassed.
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FOR EXPERT OPINION ON LEGAL ISSUES
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COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 6036
REAL OWNER OF THE PROPERTY
According
to the petitioner, Ext.P7 notice was issued by the Panchayat to the fourth
respondent, who is the petitioner's uncle. The fourth respondent had no right
over the property which is subject matter of Ext.P7. The said property,
according to the petitioner, is covered by Ext.P2 title document as well as
Ext.P3 Pattayam standing in the name of the petitioner's predecessor. The
petitioner claims to be paying revenue for the property and Ext.P4 revenue
receipt is also relied on. On coming to know that the Panchayat has initiated
proceedings for recovering the possession of the property by issuing Ext.P7,
the petitioner has submitted Ext.P8 representation before the Secretary of
the Panchayat. Along with Ext.P8, the petitioner has produced as many as
seven documents which
support his claims over the property.
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FOLDER NO – 6037
PATTAYAM
ISSUED WITHOUT DUE COMPLIANCE OF THE KLR ACT.
The suit is one for partition filed by one of the sons of
Mr.Chandy. It is his contention that Chandy died in the year 1963 and he had
a total extent of 51 cents of property. According to him, out of that 51
cents, 10 cents was gifted to the 5th defendant. The remaining portion of 41
cents is shown as the plaint schedule property. So far as this appeal is
concerned, the challenge is made by the 5th defendant in the suit. The 5th
defendant would contend that she has got a kudikidappu right over 10 cents of
property and so the property covered by the purchase certificate in favour of
the 5th defendant has to be excluded from the partition.
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FOLDER NO – 6038
RIVAL
CONTENTIONS OF OWNERSHIP
Plaint schedule property originally belonged in jenm to Alathady
Maloor Kunhambu Nair. The plaintiff claims to have obtained it on lease and
claims to have been in possession and enjoyment of the same. He has effected
improvements in the property and he has obtained purchase certificate also.
The plaintiff and his family reside in the house in the property and the
defendants owned property on the northern side of plaint schedule property.
The plaintiff would assert that the two properties are separated by well
demarcated boundaries. It is alleged that when the plaintiff tried to take
usufructs from the property, the
defendants, raising unfounded claims, tried to obstruct.
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FOLDER NO – 6039
RESTRAIN
FROM ALIENATION DURING PROCEEDINGS
The mother of plaintiff leased out an extent of 10 acres of
land, adjacent to the land leased to her, in favour of the defendants. The
defendants applied for purchase of jenmam rights in respect of 10 acres of
land. The Land Tribunal dismissed that application, but, on appeal preferred
by them the claim of the defendants was upheld. Though the defendants were
entitled to get pattayam over only 10 acres of land, the Land Tribunal
ordered to grant pattayam for an area of 11.88 acres. An application moved by
the plaintiff and other legal heirs of mother to rectify the mistake was
dismissed by the Land Tribunal. Against the order dismissing the application,
the applicants have preferred an appeal before the Appellate Authority and it
is pending. Setting forth such a case, the plaintiff sought for a decree of
perpetual prohibitory injunction alleging that the defendants anticipating a
reversal of the order of
the Land Tribunal are planning to transfer the suit property 11.88 acres, to defeat the appeal preferred by them. The excess land of 1.88 acres covered by the purchase certificate issued in favour of the defendants over and above 10 acres, which alone was leased to her by mother, according to the plaintiff, is part of the property leased to the plaintiff by the above said mother. The plaintiff canvassing such a case and raising an apprehension as indicated above, sought for a decree of perpetual prohibitory injunction to restrain the defendants from creating any documents purporting to alienate 11.88 acres on the basis of the pattayam or otherwise, and from inducting any stranger into possession of any such property, till the final disposal of the proceedings under the Act for purchase of jenmam rights initiated by the defendants.
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FOLDER NO – 6040
LEASE TO THWART
Bhakara Pillai and his wife Rajamani Ammal who were the
defendants in the present suit were the absolute owners of 4.5 acres of land.
The agreement for sale executed by the aforesaid defendants in favour of the
plaintiff (Raveendranath) pertained only to two acres of land. They did not
thereafter execute the sale deed as promised. Even prior to the said
agreement for sale the defendants had entrusted 2 = acres of land with one
Mukundan Pillai who was dependent on them and who was carrying out the
agricultural operations in their properties. Two rent receipts were also
passed on by Bhaskara Pillai to Mukundan Pillai. It was a temporary
arrangement and Bhaskara Pillai the first defendant never expected that
Mukundan Pillai would betray the confidence reposed in him. It is true that when Mukundan Pillai filed application before the Land Tribunal seeking assignment of the landlords' rights in respect of the 2 = acres of land alleging that the property was orally leased in his favour and producing rent receipts, the first defendant Bhaskara Pillai conceded the oral lease. When Bhaskara Pillai had no intention to disown the agreement for sale or deny the plaintiffs' right to have the sale deed executed and to be put in possession of the two acres of land, it was unnecessary for Bhaskara Pillai to plead the anterior oral lease in the written statement filed by him in the suit. It cannot, therefore, be held that certificate of purchase obtained by Mukundan Pillai was by practicing fraud or collusion.
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FOR EXPERT OPINION ON LEGAL ISSUES
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FOLDER NO – 6041
RIVAL
CONTENTIONS OF OWNERSHIP
An extent of 9.35 Ares of land in Ernakulam District was
acquired for the Adhoc Augmentation to Kochi Water Supply Scheme. An award
was passed by the Land Acquisition Officer. Out of the 9.35 Ares of land that
was acquired, compensation for an extent of 5.83 Ares of land was awarded to
the appellant/second claimant. There is no dispute with regard to the above
extent. Respondents 1 and 2 who are the first and third claimants claimed
that they were the owners of 1.12 Ares of land in the same survey number.
According to them, they had
acquired title to the property as per documents.
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FOLDER NO – 6042
ENTITLEMENT OF KUDIKIDAPPU
Execution Petition filed for delivery of possession of the
plaint schedule property on redemption of the mortgage, judgment debtors 2
and 3 contended that they are entitled to kudikidappu right in respect of the
decree schedule property. The
Following the judgment passed by the Supreme Court in the
decision reported in 1997 (6) SCC 23, the contention raised by the revision
petitioners in the above execution petition in execution of decree passed
allowing redemption of the mortgage negativing the claim of kudikidappu set
up by them at the trial stage cannot be entertained in the execution
proceedings.
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FOLDER NO – 6043
ENTITLEMENT OF KUDIKIDAPPU
Even though the petitioner
became a kudikidappukaran during 1978-79 and became entitled to purchase the
kudikidappu subsequent to 1978 and even though the petitioner was not a
kudikidappukaran by 1.1.1970 when the Act was introduced, the petitioner
would be entitled to the benefit of the right to purchase conferred by the
said sections. The said right is not restricted to persons who acquired the
status of kudikidappukaran before 1.1.1970.
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FOLDER NO – 6044
ENTITLEMENT OF KUDIKIDAPPU
The fact that at the trial stage it was held that the petitioner
is not entitled to claim kudikidappu right is no bar against her from
claiming kudikidappu right under Explanation IV to S. 2(25) of the Land
Reforms Act since the claim of kudikidappu is accrued to the revision
petitioner only by the above decree for redemption extinguishing her right in
the property as a mortgagee.
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FOLDER NO – 6045
ENTITLEMENT OF KUDIKIDAPPU
The right which the
petitioner claims is under Explanation IV. The right springs up only on
redemption of the mortgage. As per the Explanation, the respondent-mortgagee
who resides in the mortgage property will be deemed to be a kudikidappukari
on the redemption of the mortgage with possession. In that case, a reference
of the question of kudikidappu to the Land Tribunal and it's finding that the
petitioner has no kudikidappu right pending the suit for redemption cannot
stand in the way of the adjudication of the claim of kudikidappu which
snapped the ties of mortgagor and mortgagee. Under law, the respondent had
yet to become a deemed kudikidappukari when the Land Tribunal gave the
finding that she had no kudikidappu rights. The claim of kudikidappu now made
in execution being on made on facts and circumstance not in existence at the
time when the Land Tribunal gave the finding that the respondent was not a
kudikidappukari cannot be barred by res judicata. So, in a case like this, a
reference is a must at this stage. If a person in possession satisfies the
conditions insisted by the Explanation, he will be entitled to purchase the
hut and the extent of the land he is entitled under S. 80A(3) of the Act.
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FOR EXPERT OPINION ON LEGAL ISSUES
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COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 6046
ENTITLEMENT OF KUDIKIDAPPU
When Ss. 2(25) and 125(3) of
the Land Reforms Act are to be considered in a suit of redemption, claiming
the right of kudikidappu as was found by the Court it is not barred by the
principle of constructive res judicata in execution proceedings. We find that
later part of the view taken therein is not correct for the reason that if
the plea has not been raised, it operates as constructive res judicata on the
principle of "might and ought". If it is taken and rejected, it
operates as res judicata and the same cannot be raised in execution. Even if
it is not left open, in equity, justice and good conscience, it must not be
extended to the mortgagee. After all, the mortgagee-moneylender comes into
possession of the property as mortgagee and always remains as mortgagee
unless limitation snaps off the link. he receives interest on the amount
advanced. He cannot be permitted in good sense of law to eat away the cake as
Kudikidappu. It would be abhorrent to good conscience and playing upon the
property of indigent mortgagor's own property. Certainly, that is a matter
gone into at the time of execution. Since in the suit, the plea had been
raised and negative and a preliminary decree had been passed followed by a
final decree, it was not open to the petitioner to raise the plea after the
passing of the final decree that he was entitled to three cents of land as
Kudikidappu.
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FOLDER NO – 6047
MORTGAGE OR LEASE OR KUDIKIDAPPU
In 1943 a document was
executed styling it as "Otti and Kuzhikanam" in favour of the first
respondent in respect of the suit properties. In fact those properties were
outstanding on lease with the respondent before the execution of document. A
suit for redemption of mortgage was filed by the appellant, claiming to be
entitled to redeem the mortgage, on the premise that document was a
usufructuary mortgage. First respondent, after admitting the execution of document,
contended that it was not meant to terminate the earlier lease arrangement
and hence he continued to be a lessee of the property notwithstanding the
execution of document.
The Kerala Land Reforms Act
came into force in the meanwhile which conferred fixity of tenure on tenants
of agricultural lands. First respondent raised a contention, in the execution
court, that he is a tenant on the land and is hence entitled to the
protection envisaged in the Act.
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FOLDER NO – 6048
LEASES OF LAND OR BUILDINGS FOR INDUSTRIAL OR COMMERCIAL
PURPOSES
The appellant is a landlord
of certain lands leased out to the first respondent for commercial purposes.
The first respondent has constructed a building thereupon which is admittedly
used for commercial purposes. Alleging that the first respondent was in
arrears of rent, the appellant filed an application under Section 26 of the
Kerala Land Reforms Act, 1963 read with Rule 16 of the Kerala Land Reforms
(Tenancy) Rules, 1970. An objection was taken to the maintainability of the
said application. The Land Tribunal held that it had jurisdiction to
entertain the claim application of the appellant.
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FOLDER NO – 6049
AGREEMENT FOR
Suit for specific performance of an agreement for sale. Plaint
schedule property with its adjacent land belonged to the defendant. She
executed an agreement for sale of 20 cents for a consideration of Rs.
70,000/- out of which Rs. 50,000A was paid as advance. The sale was to be
executed after receiving the balance consideration. The title deed of the
property, tax receipt and encumbrance certificate were also handed over to
the plaintiff. Possession was also given to the plaintiff. The plaintiff was
always ready and willing to execute the sale deed. The defendant admitted the
execution of the agreement. But it was intended only as a security for the
loan of Rs. 50,000/- on the strength
of a promissory note for Rs. 50,000/- and a cheque for Rs. 50,000/- issued to
the plaintiff on the same day. The agreement was executed in the presence of
mediators. There was no demarcation or measurement of the property and
possession was not given to the plaintiff. The property is lying as a
contiguous plot with the admitted property in the possession of the
defendant.
i)
Whether the specific performance of the agreement for sale is allowable?
ii)
Whether the document was only a security for the loan, as alleged in the
written statement?
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FOLDER NO – 6050
RIGHT OF DAUGHTER IN FATHER’S
PROPERTY AFTER MARRIAGE
The
plaintiff and defendants are Hindu Brahmins. The plaint schedule items 1 to 3
were allotted to the plaintiff, 1st defendant, 2nd defendant. Their father
and also to the plaintiff's sister who died subsequently. The suit for
partition was filed subsequent to the death of them. Subsequent to the death
of father and sister, altogether in item Nos. 1 to 3 the plaintiff has got
10/40 shares and defendants 1 and 2 have got 10/40 shares each and that
defendants 3 to 7 are each entitled to 2/40 shares . The plaintiff also
submits that item No.4 of the plaint schedule belonged to father as per a
partition deed of 1972, on the death of the father the plaintiff has got 1/8
shares in the properties and item Nos. 2 and 3 in the
plaint schedule were already in the possession of the tenants and by the coming into force of the Land Reforms Act, the jenm right has also vested in the Government.
According
to the Defendants in 1964 the plaintiff was given away with money and gold
ornaments towards her share as per customary rites in marriage and the
plaintiff ceased to be a member of the thavazhi. Therefore they contended
that the plaintiff is not entitled to any share in any item of the plaint
schedule property, that even if she had any right in the properties, the same
is lost by adverse possession and limitation. The defendants also contended
that after the death of father the properties were orally partitioned and at
that time the plaintiff's share was given in cash. The defendants contended
that the plaintiff is also not entitled to 1/8th share in item No.2 since
such share was also given on oral partition in money value.
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FOR EXPERT OPINION ON LEGAL ISSUES
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COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 6051
PATTAYAM WITHOUT SUFFICIENT
NOTICE - TRANSFER STAYED
The
first petitioner is a temple which is under the management of the second
petitioner. Some properties belonging to the temple which come under
under the law in the transfer of service inam land. So much so, transfers effected by those who were in possession and also later, after obtaining pattayam from the Tribunal, cannot be recognized under law, is the further case of the petitioners. The temple and its authorities came to know of the grant of pattayam and also transfers effected only when the respondents 2 to 8 instituted suits claiming exclusive possession over the temple lands.
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FOLDER NO – 6052
RIGHTS OF MORTGAGOR &
MORTGAGEE
Plaintiff
filed the suit for redemption of mortgage in respect of the suit properties
which, are 'kandukrishi thanathu lands'. (home farm lands of erstwhile
Maharaja of Travancore State). It was given on a permanent lease to one
Thomman Jacob. While he was in possession and enjoyment of the said
properties he assigned his leasehold right in favour of the plaintiff.
Plaintiff mortgaged his leasehold right in favor of one Ouseph Ouseph,.
Ouseph Ouseph assigned his right in favour of defendant No.1 as per document.
Plaintiff thereafter created puravaypa (another mortgage) over his leasehold
right in favor of defendant No.1 fixing the period of redemption as 12 years.
In the meantime the Maharaja of Travancore promulgated kandukrishi
proclamation of 1154 M.E. transferring and surrendering right, title and
interest in all kandukrishi lands to the Government of Travancore. In
pursuance of that publication plaintiff and defendant No.1 applied for
assignment individually. Ultimately, Government preferred the claim of
defendant No.1 and granted him registry. According to the plaintiff,
defendant No.1 cannot take that advantage in derogation of his right by
virtue of his position as mortgagee under the plaintiff and hence the
registry of the lands in his favor enured to the benefit of the plaintiff.
Defendant No1. is holding that right as trustee of the plaintiff. Defendant
No.1 is therefore bound to transfer the property on receipt of the mortgage
and puravaypa amounts as stipulated in the deeds. In exercise of his absolute
right over the suit properties defendant No.1 transferred 2.5 acres to
defendant No.2, 3 acres to Maniyamma, daughter of defendant No.1 and another
2 acres to Sreedevi Amma.
(1) Has not the registry of the suit
properties which are kandukrishi thanathu lands in the name of defendant No.1
extinguished the right, title and interest of the plaintiff in the suit
properties and does the decision in Chuppan Nadar Narayanan Nadar v. Kumaran
Kochummini require reconsideration?
(2)
Does such registry enure to the benefit of the plaintiff even when defendant
No.1 obtained such registry after an open fight with the plaintiff?
(3)
If the registry does not enure to the benefit of the plaintiff, has not the
defendants prescribed title by adverse possession and law of limitation?
(4)
Are not the improvements made by defendant No.1 enhancing the value of the
land
for which compensation is due to defendant No.1?
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FOLDER NO – 6053
RECOVERY OF POSSESSION OF
PROPERTY & INJUNCTION FROM TRESPASSING/ADVERSE POSSESSION
The
plaint schedule property belonged to Kummottummal Kalyani Pilliyari Amma, the
mother of the Ist appellant. She had obtained pattayam for the properties
which is in the enjoyment of the thavazhi. She died in 1953 leaving behind
the thavazhi. There is a separation by two of her sons and thus plaintiffs
and defendants 1 to 3 were the members of the family. Defendants 4 and 5
contested the case of the plaintiffs. It is their case that by a registered
partition deed, the properties of one Kunhitharuvai, the father of defendants
4 and 5 had devolved on them. It is their case that they are quarrying
granite for more than twelve years. They have also set up the case that plaintiffs have lost their rights by adverse possession. The suit was filed for recovery of possession of plaint B-schedule property from respondents 4 to 6 and for partition among plaintiffs and respondents 1 to 3. Injunction was also sought against respondents 4 to 6 from trespassing into the property.
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FOLDER NO – 6054
PATTA FOR THE LIMITED PURPOSE
The
registration of patta under the Act can only be for the limited purpose of
securing public revenue from the property to the Government. As proceedings
could be taken under the Act only in a summary manner and as S.19 of the Act
makes it clear that conferment of registration of the land under the Act in
favour of a person is not the final word in the matter it is difficult to
hold on the basis of the conferment of patta alone title to the property claimed by the plaintiff can be recognised. The issue of patta by Sirkar in one's name does not confer title to the property, if he had not already obtained title to it.
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FOLDER NO – 6055
Application
was preferred under Section 8 of the
Applicant
submitted that the property in question was taken on oral lease by her
husband in the year 1963 from Chembra Peak Company and was brought under
seasonal cultivation like ginger, tapioca, plantain etc. prior to the
appointed date. In the year 1978 husband had assigned the land to her and the
property was under continued cultivation. She had also obtained Pattayam from
the Land Tribunal. Kalpetta. Registration from the Rubber Board was also
obtained in 1985. When forest officials obstructed she approached the Forest
Tribunal for the relief.
Application
was resisted by the Department, plea of oral lease was rejected. Document
executed between the husband and the applicant according to the department is
a sham document and reliance placed on the purchase certificate was resisted.
It was stated that the property formed part of a vested forest extending to
188 hectares which previously belonged to Chembra Peak Estate. Property was
surveyed and demarcated by the custodian of vested forests. Further it was
stated that the property was never under cultivation and no cultivation was
effected prior to 10-5-1971.
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FOR EXPERT OPINION ON LEGAL ISSUES
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FOLDER NO – 6056
WEAKNESS OF THE DEFENDANT'S
TITLE IS NOT SUFFICIENT
It is
not open to the plaintiff to succeed highlighting the weakness of the
defendant's case. The plaintiff in ejectment suit must succeed on the
strength of his own title. This can be done by adducing sufficient evidence
to discharge the onus that is on him irrespective of whether the defendant
has proved his case or not. A mere destruction of the defendant's title, in
the absence of establishment of his own title carries the plaintiff no where.
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FOLDER NO – 6057
LAND TRIBUNAL PROCEEDINGS AND
GOVERNMENT
In a
case where the party based his claim mainly on the purchase certificate he
had obtained from the Land Tribunal to prove his possession of the land and
his cultivation the certificate issued long after the appointed date as per
Section 3(1) of Act 26 of 1971 in a proceeding initiated subsequent to the vesting
without the junction of the Government in the proceedings cannot affect the
right of the Government.
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FOLDER NO – 6058
EFFECT OF FINDINGS OF LAND TRIBUNAL ON
The
question which the Forest Tribunal has to decide is whether the applicant is
a lessee or a person having right to possession and enjoyment of the forest
land as on 10-5-1971, the appointed day. If the question of tenancy is
determined by the Land Tribunal in a proceeding instituted before it under
the provisions of the Kerala Land Reforms Act with the necessary parties on
record the decision arrived at in such proceeding would be conclusive for the
purpose of that Act. Chpater II- provision regarding tenancies -- of Kerala
Land Reforms Act, as amended does not apply to leases in respect of private
forest except in the case of persons who were entitled to fixity of tenure
immediately before the 21st January. 1961 under any law then in force or
persons claiming under such persons, in view of Section 3(1) (vii) of the Act.
Therefore a determination by the Land Tribunal regarding the tenancies of
Private Forests to which Chapter II of the Act does not apply cannot have any
effect on proceedings under Section 8 of Act 26 of 1971 to decide whether an
area is a private forest or not or whether the private forest has vested or
not. If a finding is entered by the Land Tribunal about tenancy of private
forest it shall have no effect on the exclusive Jurisdiction of the Forest
Tribunal to decide whether an area is a private forest or not or whether the
private forest has vested in the State or not.
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FOLDER NO – 6059
LAND TRIBUNAL PROCEEDINGS AND
GOVERNMENT
So in
the light of the Bench decisions, the certificate of purchase Issued under,
the Kerala Land Reforms Act will have no bearing on the right of the
Government, in whom the land in question had vested under Section 3(1} of the
Act as early as 10th May 1971. The fact that the appellants did not file an
appeal against certificate of purchase Is of no consequence. The Forest
Tribunal was in error in holding that certificate of purchase is binding on
the appellants or that the failure to file an appeal against Ext. P1 has got
any consequences. certificate of purchase will not bind the appellants.
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FOLDER NO – 6060
SPECIFIC PERFORMANCE OF AGREEMENT TO SELL
& POWER OF ATTORNEY HOLDER
The appellant filed
Suit against respondent for specific performance of the agreement to sell
entered into between the parties and for directing respondent no. 1 to
execute a registered sale deed in his favour ignoring the agreement to sell
in favour of respondents/ defendants no. 3, 6 and 7 which were entered into
despite the public notice issued by the plaintiff. The plaintiff was always
been ready and willing to perform his part and it was the first defendant who
evaded to perform her part of the suit agreement. Respondent/defendant no. 1
denied the plaint allegation and stated that when the plaintiff failed to
raise necessary money, he informed her that she was at liberty to sell the property
to anyone. Respondent no. 3/ defendant no. 7 also filed Suit for perpetual
injunction restraining the plaintiff from interfering with the construction
of a theatre building including the compound wall which was in close
proximity to his land. During the pendency of the suit respondent no. 1
executed and got registered a sale deed in favour of respondent no.
2/defendant no. 3 with respect to a part of the suit property. Further, the
GPA holder also got registered another sale deed in favour of respondent no.
2/defendant no. 3 with respect to a part of the suit land.
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FOLDER NO – 6061
REFUSAL OF TENANT TO VACATE
& “MATERIAL IRREGULARITY” & INTERPRETATION OF STATUTES.
He
paid income-tax. He owned various shops. He wanted the tenant to vacate this
particular shop as he intended to build a residential house for himself on
the site, and also to carry on his business there. As the tenant was running
his shop at the premises, which the landlord wanted to be vacated, the
landlord offered another shop of his as an alternative accommodation where
the tenant could shift. The District Magistrate to whom the landlord had
applied found that the needs of the landlord were genuine, but he refused the
necessary permission to him on the ground that the tenant was not giving his
consent to shift to the alternative accommodation. This order was made under
Sub-section (1) of Section 3 of the U. P. (Temporary) Control of Rent and
Eviction Act. The appellants then applied to the Commissioner under
Sub-section (2) of that section to revise the order. The Commissioner by an
order allowed the application, set aside the order of the District Magistrate
and granted the requisite permission. The validity of the Commissioner's
order is questioned on the ground that as the Commissioner did not find that
the District Magistrate had acted illegally or with material irregularity he
had no jurisdiction to set aside the latter's order. - The expression "material
irregularity" – Interpretation of statutes.
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FOLDER NO – 6062
FRAUDULENT PREPARATION OF
SETTLEMENT DEED
The
plaintiff and defendants 1 to 3 are the children of late Kunjipillai Amma who
died in the year 1973. Bhaskara Panicker, who was one of the sons of the said
Kunjipillai Amma, died unmarried. The plaintiff and defendants 1 to 3 are the
legal heirs of Kunjipillai Amma and Bhaskara Panicker. Defendants 4 and 5 are
the children of the 1st defendant. The plaint schedule properties are
portions of the properties settled in favour of Kunjipillai Amma as per settlement
deed executed by the husband of Kunjipillai Amma. As per a settlement deed
Kunjipillai Amma settled the plaint schedule properties in favour of her
children. Item No. 1 of the plaint schedule property was thus settled in
favour of the plaintiff. After settling various items of properties in favour
of her children Kunjipillai Amma retained 7 items of properties with her and
those properties are described in the settlement deed. Kunjipillai Amma
requested the 1st defendant, who was her eldest son, to prepare a settlement
deed for distributing the properties retained by her equally among her five
children. However, the 1st defendant prepared settlement deed violating the
directions given by Kunjipillai Amma and taking to himself major share of the
properties and allotting small portions of properties to the 3rd defendant
and deceased Bhaskara Panicker and leaving nothing to the plaintiff and the
2nd defendant. He had also fraudulently included in his share plaint schedule
item No. 1 which was already settled in favour of the plaintiff under
settlement deed. Similarly, taking advantage of the mistake in the extent
shown for the property allotted to the 3rd defendant as per the settlement
deed wherein instead of 95 cents comprised in Sy.No. 20/5, 45 cents alone was
shown, the 1st defendant fraudulently included the balance 50 cents to his
share. Kunjipillai Amma was illiterate, old and sickly and believing her
eldest son (1st defendant) that the settlement deed was prepared by him as
directed by her, she signed document and registered the same. Bhaskara
Panicker and defendants 2 and 3 were ignorant about the fraudulent acts of
the 1 st defendant. - natural guardian
1.
Whether Kunjipillai Amma was in sound state of mind while executing document
No. 4860 of 66?
2. Whether
first defendant had played any fraud, coercion, undue influence on deceased
Kunjipillai Amma to execute the document?
3.
Whether the decree in O.S. No. 318/69 and 554/69 are valid and binding on the
plaintiff?
4.Whether
the decrees in the above suits are liable to be set aside?
5.
Whether the plaintiff is entitled to the declaration of title and possession
over item No. 1 of the plaint schedule?
6.
Whether the document No. 45 dt. 8-1 -1980 executed by 1st defendant in favour
of 6th defendant is valid and binding on the plaintiff?
7. Is
the above document liable to be set aside for the reasons stated in the
plaint?
8.
Whether the settlement deed No. 5343 dt. 19-9-1966 is valid and binding on
plaintiff and defendants 1 to 3?
9. Is
the plaintiff entitled to get partition of items 3 and 4? If so what is the
quantum of share?
10.
Is the plaintiff entitled to get mesne profits? If so, at what rate?
11.
To what reliefs parties are entitled?
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FOLDER NO – 6063
PERIOD OF LIMITATION
Respondent
No.1 filed a suit for declaration and partition of the land consisting of 19
bighas and 12 biswas claiming himself to be a co-sharer with the defendant.
One Mihilal was the owner of the suit land comprising of different khasra
numbers. The said suit was filed by the plaintiff-Respondent No.1 alleging
that his father had a share therein in addition to owner of another land in
khasra No.516, measuring 6 biswas. His father died in the year 1950. His
mother also died soon thereafter. At the time of the death of his father, the
plaintiff-Respondent No.1 was a minor. He started living with Appellant
No.4-Lal Bihari. He, allegedly, executed a deed of sale on 1.1.1961 in
respect of khasra No.516 measuring 6 biswas to Babu Singh and Tek Singh for a
consideration of Rs.7,000/-. His age in the Sale Deed was shown to be 26
years. Only on 17.8.1979, he, allegedly, gathered the information that the
land under khasra No.516 was purported to have been sold by him to the
aforementioned persons. – Limitation - cancellation of instrument.
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FOLDER NO – 6064
UNDUE INFLUENCE
According
to the plaintiffs, their mother in sound disposing mind duly executed a
registered will whereunder she bequeathed in their favour properties
described in Schedule A to the plaint. Schedule B properties also belonged
absolutely to Nanjammal which, according to the allegations in the plaint,
were inherited to the extent of 3/4th share by the three plaintiffs together
and l/4th undivided share by defendant No.l according to law of succession
Nanjammal having died intestate in respect of the said properties. After
death of Nanjammal, the appellant began to assert his exclusive title to suit
properties as a result whereof the plaintiffs sent a notice to him requiring
him to restrain from unlawful interference in the enjoyment of the
properties. In reply to the notice, the appellant denied the title of the
plaintiffs to Schedule A and B properties and asserted his exclusive title
under two settlement deeds alleged to have been executed in his favour by Nanjammal.
The plaintiff on receipt of the reply notice obtained copies of the said
deeds and then only became aware about the said deeds which, it was claimed,
were not validly executed. Under these circumstances, the plaintiffs who are
respondents before us sought a declaration that plaint A Schedule properties
belong exclusively to them and sought injunction restraining the
appellant/first defendant from interfering and disturbing the plaintiffs'
exclusive possession and enjoyment of those properties through their tenant
and further sought partition of Schedule B properties into 4 equal shares so
as to allot three shares to the plaintiffs altogether and one share to
defendant No. 1.
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FOLDER NO – 6065
CONTRACT TAINTED BY FRAUD
& PERIOD OF LIMITATION
In
1938, the appellant executed a gift deed of four plots of land-two in village
T and two in village L in favour of her husband. At that time the appellant
was young and illiterate and her husband was in a position to dominate her
will, and she believed that the document related only to the plots in village
T which were originally the property of the husband. The properties in
village L were inherited by the appellant from her father. They were very
valuable and fertile and there was no reason whatever for her to gift them
away to her husband. In 1941, the husband married a second wife but the
appellant continued to live with him amicably till he died in 1949.
Thereafter the conduct of the relatives of the second wife made her
suspicious, and on enquiry, she found that the plots in village L were also
included in the gift deed. She therefore filed a suit for setting aside the
gift deed and for possession of all the four items of property, against the
second wife and her children.
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FOR EXPERT OPINION ON LEGAL ISSUES
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FOLDER NO – 6066
CONTRACT INDUCED BY FRAUD
The
fact that the contract has been induced by fraud does not make the contract
void or prevent the property from passing, but merely gives the party
defrauded a thought on discovering the fraud to elect whether he shall continue
to treat the contract as binding or disaffirm the contract and resume the
property, If it can be shown that the party defrauded has at any time after
knowledge of the fraud either by express words or by unequivocal acts
affirmed the contract, his election determined for ever. The party defrauded
may keep the question open so long as he does nothing to affirm the contact.
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FOLDER NO – 6067
FRAUDULENT MISREPRESENTATION
OF CHARACTER OF THE DOCUMENT
The
defendant pleaded that he endorsed the bill of exchange on a fraudulent
representation by the acceptor that he was signing a guarantee. In holding
that such a plea was admissible, the Court observed : "It (signature) is
invalid not merely on the ground of fraud, where fraud exists, but on the
ground that the mind of the signer did not accompany the signature; in other
words, that he never intended to sign, and therefore in contemplation of law
never did sign, the contract to which his name is appended .... The defendant
never intended to sign that contract or any such contract. He never intended
to put his name to any instrument that then was or thereafter might become
negotiable. He was deceived, not merely as to the legal effect, but as to
the, actual contents' of the instrument.”
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FOLDER NO – 6068
COMPETENCE OF GUARDIAN TO
SELL THE INTEREST OF MINOR
One
Ninge Gowda was the original owner of the property in dispute. He died
leaving two daughters namely Smt.Sakamma, and Smt.Madamma. When Smt.Sakamma
was a minor, her sister Smt.Madamma purportedly acting as her guardian, sold
her share of the property left by Ninge Gowda to the appellant herein by a
registered Sale Deed. It is the case of the appellant that the share of the
minor Smt.Sakamma was sold to collect funds for her marriage. The appellant
was put in possession of the property and he continues in possession of the
same till date. Smt.Sakamma attained majority sometime in 1961-62. She sold
her share of the property to predecessor of respondent nos.1 to 9 herein, by
the registered Sale Deed. Since there was a dispute regarding possession of
the property, respondent initiated a proceeding under Criminal Procedure Code
before the Sub-Divisional Magistrate. In the said proceeding, the learned
Magistrate held that the appellant was in possession of the property on the
date of the preliminary order and he would continue to remain in possession
of the same till dispossessed by the competent Court. Thereafter plaintiff
filed Original Suit in the Court of the Munsif, seeking a declaration of title,
for partition of the share of his vendor Smt.Sakamma and for delivery of
possession of the same to him.
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FOLDER NO – 6069
The
second defendant is the natural mother of the first defendant who was a minor.
The disputed property belongs to defendant 1 and was inherited from his
adoptive father. The adoptive parents of the first defendant are dead. The
second defendant as guardian of the first defendant sold to the plaintiff
homestead land of 9 x 150 cubits for Rs. 500/- by a registered sale deed. The
sale was effected for repayment of mortagage dues under Kx. 2 executed by the
adoptive father of the first defendant in favour of one Bai Mahapatrani.
Plaintiff's case is that the possession of a portion of the land measuring 4
x 38 cubits (disputed portion) was not delivered. He accordingly brought the
suit for recovery of the disputed portion, not delivered, or in the
alternative for refund of Rs. 200/- out of the sale consideration
representing the proportionate value of the disputed portion.
Defendants
1 and 2 filed separate written statements. Defendant-1 contested the suit
alleging that there was no legal necessity for the transfer, that defendanf-2
was not his guardian and that the plaintiff fraudulently purchased the
homestead at a low price though the real value of the property was Rs. 500/-.
Defendant-2 admitted execution of the sale deed and receipt of Rs. 500/-
towards consideration. She pleaded that the plaintiff promised to pay Rs.
200/- more and that she was prepared to take back the land on return of the
entire consideration money.
i. Is
the alienation by the de facto guardian of the minor void or voidable?
ii.
Is the minor liable to refund the proportionate consideration?
iii.
Is the guardian liable to refund the same?
iv.
Is the plaintiff entitled to refund under Sections 88 and 41 of the Specific
Relief Act in the facts and circumstances of this case?
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FOLDER NO – 6070
RIGHTS OF THE LESSEE
According
to the plaintiffs, the plaintiffs purchased the suit property i.e. an extent
of acres 0-37 cents with a building situated at From the Judgment and Order
of the Madras High Court in Second Appeal. from one Parethuammal under
registered sale deed and paid full consideration. One Swaminatha Pillai was
in possession of the property, as a lessee under Parethuammal. As the
possession was not delivered to the plaintiffs, they filed civil suit on the
file of the
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FOR EXPERT OPINION ON LEGAL ISSUES
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FOLDER NO – 6071
PROPERTY OF MINOR MEMBERS OF
THE JOINT HINDU FAMILY
Dhanu
Bal and Param Bal were two brothers constituting a Joint Hindu Family. Dhanu
Bal had a wife, Nidhi, an adult son, Jag Bandhu and a few minor sons. Param
Bal had a son, Raghu bal. Raghu Bal had a wife Satyabhama and a few minor
sons. Dhanu Bal, Param Bal and Raghu Bal died. Jag Bandhu as Karta of the
Joint Hindu Family, joining with him the widows Nidhi for herself and as
guardian of her minor sons and Satyabhama for herself and as guardian of her
minor sons, executed a sale deed pertaining to certain joint family lands in
favour of the first defendant-respondents, who made a further sale in favour
of the second defendant-respondent. The plaintiffs-appellants who were all
members of the Joint Hindu family filed a suit to have declared the aforesaid
sale as illegal and void on the plea that the transaction was `vitiated by
fraud, mis-representation and taking undue advantage of the illiteracy of
Nidhi and Satyabhama, widows. The suit was resisted by the
defendants-respondents on the plea that Jagabandhu was literate even though
the widows were not, and had executed the sale deed as Karta of the family to
which the other widow executants had supportively joined him in the execution
of the sale deed for themselves and as guardians of the minor members of the
Joint Hindu Family.
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FOLDER NO – 6072
VOID LEASE BUT RENT ACCEPTED
The
important question that arises for consideration is whether the appellant who
has occupied the suit premises under a void lease, is entitled to the
protection of Kerala Buildings (Lease and Rent Control) Act, 1965. The suit
property was allotted to one Raman Namboodiri and others in a family
partition in the year 1974. From them the appellant took it on lease on a
monthly rent of Rs. 140/- for a period of five years. A lease deed, was
executed on January 14, 1974 but it was, however, not registered. Thereafter,
the suit premises was purchased by the first respondent from (respondents 2
to 6) on December 2, 1974.
On
March 24, 1975 respondents filed the suit
on the strength of title, for recovery of possession of the suit
property and past and future mesne profits on the ground that the lease was
void and they are entitled to get back the possession thereof. The appellant
has contested the suit on the ground that he is the lessee of the suit
premises; he paid the rent till October, 1974 and as such he is entitled to
the protection of the Kerala Buildings (Lease and Rent Control) Act, 1965.
The lease itself was void being in contravention of Section 107 of the
Transfer of Property Act and the lease deed was inadmissible in evidence
being in contravention of Section 49 of the Indian Registration Act. However,
no plea was taken that independent of the void lease, by conduct of the
parties in paying and accepting the rent every month till October 1974, a
month to month tenancy came into existence.
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FOLDER NO – 6073
LESSEE OR TENANT AT WILL
The
Municipal Corporation of
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FOLDER NO – 6074
RELATIONSHIP OF LANDLORD AND
TENANT
In
terms of the compromise petition filed in the High Court in an earlier
ejectment suit, it was agreed by the predecessors-in-title of the respondent
that the appellant would become “a direct tenant under the first respondent's
husband and his brother who were then the owners of the property at a monthly
rent of Rs. 1000/- and that the lease would be for a period of 16 years from
May 19, 1954 with option to the, appellant to terminate the lease earlier on
giving 60 days' notice on the lessor." No deed of lease was ever
executed nor the petition of compromise containing the terms of settlement
was registered and the appellant's possession from May 19, 1954 was on the
basis of the compromise. Respondent No. 1 after the expiry of the said period
of lease served a notice on the appellant to quit and vacate the premises and
thereafter filed a title suit in the Subordinate Judge for recovery of
possession and mesne profits. The defence of the appellant was that by
payment and acceptance of rent a monthly tenancy has been created in their
favour which was continuing even after the expiry of the said period. The trial
court found that to be effective as a lease for 16 years the petition of
compromise required registration and this not having been done it could not
create any interest in favour of the appellant in the premises though they
were entitled to protect their possession for a period of 16 years under s.
53A of the Transfer of Property Act. It also held that payment and acceptance
of rent made in terms of the unregistered, compromise petition did not give
rise to a right of tenancy and on the expiry of the said period, they had no-
protection against eviction.
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FOLDER NO – 6075
TENANCY FROM MONTH TO MONTH
The
defendant executed a registered kabuliyat to the Receiver who was managing an
estate pending a suit, purporting to take a plot of land on lease for a
period of ten years at a rental of Rs. 46 per annum and paid the first year's
rent of Rs. 46 on the 8th March, 1925, and the next year's rent on the 16th
March, 1926. No further rent was paid by the defendant to the Receiver or to
the proprietor after that date. The proprietor, treating the defendant as a
monthly tenant served notice to quit on him on the 18th July, 1942, asking
the latter to vacate on the 7th August, 1942, and instituted a suit for
ejectment in July, 1943. The kabuliyat was found to be inoperative in law and
the defendant contended that the payment and acceptance of annual rent in
1925 and 1926 did not create a monthly tenancy but two tenancies for one year
each for two successive years, that the relation of landlord and tenant came
to an end on the expiration of the second annual lease, and, as there was no
holding over, the suit was time-barred:
(i)
that from the facts a tenancy could be presumed to have come into existence
from 1924; (ii) as the purpose of the tenancy was for building structures on
the land, under sec. 106 of the Transfer of Property Act the tenancy must be
presumed to be one from month to month in the absence of a contract to the
contrary; (iii) a contract that the tenancy was for one year certain could
not be inferred in the present case from the fact that an annual rent was
paid in 1925 and 1926, inasmuch as the kabuliyat, though inoperative in law,
showed that the parties never intended to create a lease for one year; (iv)
on the facts of the case it was quite proper to hold that the tenancy was one
from month to month since its inception in 1924 and the suit was not
time-barred.
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FOR EXPERT OPINION ON LEGAL ISSUES
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FOLDER NO – 6076
LEASE OF “LEASED PROPERTY”
The
first respondent gave on lease to the appellant his cinema theatre known as
"Sivananda Theatre" which was later known as "Moviland
Theatre" by a registered lease deed dated September 2, 1946. Earlier,
this same theatre was leased to respondent 2 on December 29, 1941, for five
years commencing from March 1, 1942 ending with February 28, 1947. Clause 14
of the lease deed provided : After the expiry of the period of five years
fixed under this lease, the lessees shall have the option and liberty to
renew or extend the lease for another period of 5 years but subject only to
such terms and conditions as may be mutually agreed upon. Respondent 1 filed
a suit on the file of the Subordinate Judge, for eviction of respondent 2,
for delivery of possession and for payment of arrears of rent with interest
together with costs, interest, mesne profits etc. When the suit were pending,
respondent 1 executed a registered lease deed on August 16, 1950 in favour of
respondent 2 purporting to be under a compromise. This lease deed was for 10
years in the first instance with an option to extend it for 5 years and
thereafter for another 5 years, on a monthly rental of Rs. 1800/-. Appellant
then filed the suit out of which this appeal arises for specific performance
of the agreement of lease dated September 2, 1946, for possession, for
damages, for mesne profits and for interest and costs. Defendant 2 filed a
written statement to say that his lease got extended upto March 1, 1952, as
he had exercised his option and that the agreement between the appellant and
respondent 1 became impossible of specific performance.
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FOLDER NO – 6077
DEFENDANT CONSTRUCTED GRANITE
BUND IN THE PLAINT SCHEDULE PROPERTY
The
suit was for recovery of possession of plaint schedule property on the
strength of title with future mesne profits and for a mandatory injunction directing
the defendant to remove a granite bund constructed by him in the plaint
schedule property. The plaint schedule property is only 1/3rd of a cent of a
large paddy field. The plaintiff and defendant are adjacent owners. The short
question to be considered is whether the plaint schedule property is included
in the title deed of the plaintiff. Of course, the plaintiff contends that it
is part of his property and that it is included in his title deed. Defendant
also with equal force submits that the plaint property is included in his
title deed and that he is in possession of the same as part of his holding.
He maintained in the written statement that he had/has no intention to
trespass into the plaintiff's property. He put up the granite bund only in his
property. This contention was not accepted by the trial court. The trial
court held that the property is not included in the title deed of the
defendant and that it formed part of the property owned by the plaintiff. The
plaintiff made appeal.
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FOLDER NO – 6078
KUDIKIDAPPU RIGHT - “TEN CENTS OR THREE CENTS” ?
The
petitioner was holding 20 cents of land and a building under a possessory
mortgage. The first respondent-landowner obtained a decree for redemption in
the Court of the District Munsiff, by judgment. The mortgage was by an
Ottikuzhikanam deed executed by the respondent's mother and others in favour
of the petitioner. After the decree for redemption was obtained, the
decree-holder filed EP for redemption. At that stage, the petitioner claimed
kudikidappu right by virtue of the provisions of Explanation of the KLR Act.
The execution court ordered not to dispossess the petitioner from the
schedule building till the kudikidappu right of the petitioner was
determined. The petitioner then filed before the Land Tribunal, claiming that
she was entitled to purchase part of the property in her possession in
exercise of the right conferred by the Act. Her applicaton was opposed by the
respondent. The contention raised by the respondent was rejected and upon an
application the Land Tribunal held, in its order that the petitioner being a
kudikidappukari was entitled to purchase by virtue of her kidukidappu right
only in regard to three cents in as much as the property was within the
Corporation area of Trivandrum at the time of her becoming a kudikidappukari.
Being aggrieved by the said order, the petitioner filed an appeal. Petitioner
contended that the property was within Vattiyoorkavu panchayat area till
31-12-1961 and the applicant was entitled to purchase ten cents, rather than
three cents as declared by the Land Tribunal.
(1)
Whether for the purpose of Section 80A(1) read with Sub-Clause (3) of Section
80A of the Act, the extent of land which a kudikid-appukaran is entitled to
purchase depends upon the date on which he either becomes a kudikidappukaran
under Explanation IV to Section 2(25) or becomes entitled to the right to
purchase under Section 80A(1) and (3), --or whether the said dates have no
relevance?
(2)
Whether the kudikidappukaran who had acquired his right to purchase after
1-1-1970 as per the amending Act 35 of 1969 was entitled to claim the right
to purchase ten cents rather than three cents in the city of Trivandrum on
the basis that the land was situate in a purchase area before 1-4-1960, in
view of the deeming provision introduced by the Explanation to Section
2(33B)?
-
Explanation could not be used for purposes of widening the meaning of the
main provision –
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FOLDER NO – 6079
AGRICULTURAL LAND CEILING
A
group of appeals preferred by certain landholders in the State of Maharashtra
against the judgment of the Bombay High Court upholding the constitutional
validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act,
1961 (the Principal Act) as amended by the Maharashtra Agricultural Lands
(Lowering of Ceiling of Holdings) (Amendment) Act, 1972, the Maharashtra
Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1975
and the Maharashtra Agricultural Lands (Ceiling of Holdings) (Amend- ment)
Act, 1975. The Principal Act was enacted by the Maharashtra Legislature in
implementation of the Directive Principles of State Policy contained in
clauses (b) and (c) of Art. 39 of the Constitution. It imposed a maximum
ceiling on the holding of agricultural land in the State of Maharashtra and
provided for the acquisition of land held in excess of the ceiling and for
the distribution of such excess land to landless and other persons. During
the subsequent years, various amendments were made in the Principal Act from time
to time and the Principal Act, as amended upto that date, was included in the
Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964.
Thereafter certain further amendments were made in the Principal Act and the
amending Acts were also included in the Ninth Schedule as a result of the
Constitution (Thirty ninth Amendment) Act, 1975. Then came three major
amending Acts which, according to the appellants, introduced the vice of
unconstitutionality in the Principal Act. Maharashtra Act 21 of 1975 effected
radical amendments in the Principal Act by lowering ceiling on agricultural
holding and creating an artificial family unit for fixing ceiling on holding
of agricultural land. This amending Act was followed by Maharashtra Act 47 of
1975 and Maharashtra Act 2 of 1976 which affected certain further changes in
the Principal Act but these are not very material for the purpose of the
present appeals. Since these three amending Acts were enacted after the
Constitution (Thirty-ninth Amendment) Act, 1975, they were included in the
Ninth Schedule along with certain other enactments by the Constitution
(Fortieth Amendment) Act, 1976. The result was that the Principal Act, as
amended by all the subsequent amending Acts including Maharashtra Act 21 of
1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was protected
against invalidation under Art. 31-B.
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FOLDER NO – 6080
ARTIFICIAL CONCEPT OF A
FAMILY
These
appeals by the State of Punjab are directed against a judgment of the High
Court of Punjab and Haryana declaring certain provisions of the Punjab Land
Reforms Act, 1972 unconstitutional on the ground that they violate the second
proviso to clause (1 ) of Article 31A of the Constitution. The constitutional
validity of the whole Act was challenged in the writ petitions giving rise to
these two appeals, but the High Court negatived the challenge and upheld the
constitutional validity of the Act save in regard to those provisions which
create an artificial concept of a family and provide for clubbing together of
land held by each member of the family for the purpose of applying the
limitation of permissible area. We will briefly refer to these provisions
which have been struck down by the High Court as constitutionally in- valid.
Section 3 is the definition section and clause (10) of that section define
'person' to include inter alia a family. The expression 'family' is defined
in clause (4) of section 3 by saying that 'family' in relation to a person
means the person, the wife or husband, as the case may be, of such person and
his or her minor children, other than a married minor daughter. It is
obviously an artificial definition of family because family, as known in
ordinary parlance, would include not only minor children but also major sons
and unmarried daughters, whereas 'Family' as defined here excludes major sons
and unmarried daughters. Section 4, sub-section (1) provides that subject to
the provisions of section 5, no person shall own or hold land as landowner or
tenant or partly as land- owner and partly as tenant in excess of the
permissible area and sub-section (2) of that section lays down what shall be
the permissible area in respect of different classes of land. There is
proviso. (ii) to sub-section (2) of section 4 which says that where the
number of members of a family exceeds five, the permissible area shall be
increased by one-fifth of the permissible area for each member in excess of
five, subject to the condition that additional land shall be allowed for not
more than three such members. Sub-section 4 of Sec. 4 has two clauses which
reads as follows:
"(a)
Where a person is a member of a registered cooperative farming society, his
share in the land held by such society together with his other land, if any,
or if such person is a member of a family, together with the land held by
every member of the family shall be taken into account for determining the
permissible area;
(b)
where a person is a member of a family, the land held by such person together
with the land held by every other member of the family, whether individually
or jointly, shall be taken into account for determining the permissible
area."
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FOLDER NO – 6081
CLAIM OF KUDIKIDAPPU ON
MORTGAGED PROPERTY
The
respondents-mortgagors had filed suit for redemption of the mortgage. The
petitioner-mortgagee claimed fixity of the tenure in respect of the entire
extent of the land under Section 4(1) (10 (b) and Section 13 of the Kerala
Land Reforms Act; in the alternative, she claimed to be entitled to deemed
Kudikidappu rights over 3 cents of the total extent of 8 cents, by operation
of Explanation IV to section 2(25) of the Act. The trial Court negatived the
contention by decree dated July 51, 1980. Final decree was passed on
September 30, 1992. The claim of Kudikidappu advanced by the petitioner
arises for consideration only at the time of the execution; thus, in this
case, prima facie, they are not entitled to reference under Section 125(3) of
the Act. When the petitioner had carried the matter to the High court held
that it operates as constructive res judicata. Since that question was raised
at the time when the final decree had been passed, the petitioner raised this
point in the execution.
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FOLDER NO – 6082
EXECUTION OF
The
appellant brought Civil Suit to the Court of the Civil Judge, alleging that
one Mohsinali and Qurban Hussain had entered into an agreement for sale in
his favour for the sale of a plot measuring 100 feet by 10 feet for a sum of
Rs. 4,000/-. It was asserted that he had paid Rs. 1,000/- as earnest money
and the balance was to be paid on registration of the sale deed. Of that
balance, a further Rs. 2,000/ was paid later. Subsequently, it is pleaded,
Mohsinali informed the appellant of the pendency of Civil Suit between himself
and certain others, for declaration of title and for possession, upon which
the appellant then executed a further document by which he agreed that in
case the said Civil Suit resulted in a settlement confirming Mohsinali's
ownership and allowing him possession of the site he would pay Mohsinali the
balance of Rs. 1,000/- as agreed earlier and would obtain a sale deed from
him according to the earlier agreement for sale, but in case the settlement
did not so result he would be entitled to a refund of the Rs. 3,000/- paid by
him. It appears that a compromise was entered into between Mohsinali and
Qurban Hussain on the one side and Umarsha on the other in Civil Suit under
which it was agreed that if Umarsha paid Rs. 15000/- to the former within 15
days he would be entitled to the site and would continue in possession as
before, but in default of such payment he would cease to have any right or
interest in the site and the former would be entitled to a declaratory decree
of ownership and for delivery of possession. Umarsha defaulted, and therefore
in terms of the compromise the Civil Suit was decreed in favour of Mohsinali
and Qurban Hussain for title and possession. Meanwhile, however, after the
default by Umarsha but before the said decree could be passed, Mohsinali and
Quarban Hussain executed a sale deed in favour of Angadlal and Vijay Kishore,
the successors-in-interest of Girjashankar, and impleaded in this appeal as
the first and second respondents, transferring the site to them for Rs.
15,000/-. Girjashanker had been in possession of the land under Umarsha, and
was followed by these respondents. It was recited by Mohsinali and Qurban
Hussain in the sale deed that on the basis of the compromise in Civil Suit
their "ownership and possession had been established", and that now
by virtue of the sale the ownership and possession belonged to the vendees.
The appellant then filed the present suit for specific performance on refusal
by Mohsinali and Qurban Hussain to execute a sale deed in his favour.
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FOLDER NO – 6083
AGREEMENT OF
The
appellant had 22.38 acres of land in Village Gondia. A document purporting to
be an agreement of sale was executed for sale of 11.76 acres out of the said
land for a consideration of Rs.50,000/-. The recital therein and an
endorsement on the foot of it is to the effect that a sum of Rs.48,000/- was
received as consideration of sale of the said lands and balance of Rs.2,000/-
was required to be paid within one year and sale deed was required to be executed
thereon. Since the sale deed was not executed within one month prior to the
date of the expiry of 3 years' period from the date of agreement, the
respondent got issued the suit notice calling upon the appellant to execute
the sale deed. On failure thereof, he filed the suit on the last day of the
limitation.
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FOLDER NO – 6084
ESCALATION OF REAL ESTATE
PRICES AND PROFIT
The
appellant entered into an agreement with Respondent No.1 and 2 for the
purchase of Flat on the 7th Floor of the building situated at
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FOLDER NO – 6085
JUDICIAL PRINCIPLES OF SPECIFIC PERFORMANCE
The
first respondent and her son were defendants for partition between the
co-parceners. Therein Cinema Theatre situated in Cannanore was allotted to
them in a compromise decree, subject to their paying a sum of Rs.1,55,000/-
each to the plaintiff and the second defendant therein within three months
from the date of the compromise decree. Since the amount could not be paid,
the theatre was brought to sale at a court auction and was sold for a sum of
Rs.5,44.000/-. Since she was not in a position to pay the amount, she had
through her brother, DW-2 approached the appellant. In furtherance of the
understanding, the appellant was to deposit Rs. 2,10.391/- in the court
before confirmation of the sale towards the 1/3rd of the amount deposited
plus 5% of the founding fees. Accordingly, the appellant had lent that amount
with a condition that the respondent and her son would sell the theatre to
the appellant, the later agreeing to pay a further sum of Rs.2 lakhs. In
other words, he had agreed to purchase the theatre for 5,44.000/- and 2
lakhs. It is the case of the appellant that the contract came to be executed
and the sale was set aside on deposit of the amount advanced by the
appellant. When he issued a notice to the respondent to get the sale deed
executed in furtherance of the agreement, she pleaded that it was not
intended to be executed; rather, it was by way of security for loan.
Consequently, the appellant laid the suit for specific performance. Therein
the appellant prayed for decree for specific performance and in the
alternative for refund of the amount advanced by him, namely, Rs.2,10,391/-.
The trial Court noticing that the appellant had not had the sanction of the
civil Court under Section 8 of the Hindu Minority and Guardianship Act, 1956
held that the agreement of sale to the extent of half share of the minor was
not valid in law. However, since the respondent had executed the agreement
decreed to the extent of her half share in the theatre a decree for specific
performance was granted subject to the appellant depositing a sum of
Rs.1,61,609 towards the half share of the first respondent.
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FOLDER NO – 6086
REDEMPTION AND RECOVERY OF
'VALUABLE INTEREST'
The
plaint property was kandukrishi thanathu land. The Special Tahsildar,
Neyyattinkara passed order during the pendency of the suit, granted registry
of the property to the defendants 1 to 5. The 2nd defendant, among other
things, contended that the plaintiffs have lost their right to redeem as the
registry did not enure to the benefit of the plaintiffs. The
predecessor-in-interest of the plaintiffs who executed the mortgage was a
lessee of the plaint property. Kandukrishi lands were originally the home
farm lands of the sovereign. They were transferred to the State and the State
dealt with the lands as government lands under the Land Assignment Act.
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FOLDER NO – 6087
WIDENING OF THE ROAD
The
complainant is the owner in possession of properties of Kannanoor village
within the limits of Koyalmannam Panchayat, the same having been allotted to
him under partition. A private cart-track belonging to the complainant passes
through this property. The cart-track adjoins the house and the appurtenant
building touching threshing floor and a mango garden, tank, etc., belonging
to and in the possession of the complainant and joins the
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FOLDER NO – 6088
MORTGAGEE TO PROTECT THE
INTERESTS OF THE MORTGAGOR
The
suit properties, which are kandukrishi lands, were held on lease by the
original owners who appear to have mortgaged their rights in favour of the
defendant's predecessors-in-title. Ultimately, the rights of the original
lessee have now devolved on the plaintiff by virtue of the purchase. At the
time of the settlement the question of grant of the lease of the Kandukrishi
lands seems to have been taken up by the Government and for that purpose, in
respect of the suit lands as well as certain other items of property, both
the plaintiff mortgagor, as well as the defendants mortgagee laid claim for
the issue of patta in their favour. The suit properties were held as
mortgagee by the defendants and there were certain other items of properties
owned by the Devaswom which were held by the defendants on lease. The
ultimate result of both the transactions is that the defendants were in
possession of both sets of properties. In this appeal, the
plaintiff-appellant raises two contentions; (1) that in the circumstances of
this case the patta for Kandukrishi lands obtained by the defendant in the
proceedings enure in favour of his client on the principle embodied in
Section 90 of the Trusts Act and therefore the view expressed to the contrary
by both the subordinate courts is not sound in law; and (2) that the further
view expressed by both the subordinate courts that when the patta for the
kandukrishi land was granted by the Sirkar in favour of the defendant, it
does have the effect, in law, of putting an end to the mortgagor-mortgagee
relationship that exists in this case is also not correct in law.
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FOLDER NO – 6089
JUNIOR MEMBER OF A TARWAD
Koikkalazhi-kathu
tarwad had mortgaged with possession 86 cents of land which takes in the suit
property to Matheru Sankaran and another on 27-11-1065. Sometime afterwards
Sankaran Pillai Govinda Pillai, a junior member of the tarwad filed a suit
for redemption of the mortgage and obtained possession of the suit property.
It is not clear from the records produced in the case whether such possession
was obtained by actual execution of the decree or out of court. On 16-3-1932,
Govinda Pillai mortgaged the property which was then in his possession to one
Parame1swaran Pillai. Parameswaran Pillai gifted his right to his three sons,
who are members of the original mortgagor tarwad. This right has now finally
devolved on defendants 1 and 2.
Plaintiffs and defendants 3 to 5 are members of Koikkalazhikathu
tar-wad. In 6-3-1926 partition has been effected amongst the members of the
tarwad. The suit property is an item that is not so taken-in by the deed of
partition. Alleging that the plaint schedule property belonged to the tarwad
and that in accordance with the above provision in the partition deed,
plaintiffs and defendants 3 to 5 are entitled to it, the suit from which this
appeal arises is brought for redemption of mortgage. Defendants 1 and 2 contended that the suit
is not maintainable and the plaintiffs are not entitled to redeem the plaint
property. According to them the rights of the tarwad are barred by
limitation. The original mortgage had not been redeemed by or on behalf of
the tarwad. Govinda Pillai-who executed mortgage was only a junior member of
the tarwad. He had obtained possession of the property for himself and not
for the tarward. Defendants 1 and 2 further contested the plaintiffs' claim
alleging that they had become absolute owners of the land. They also put
forward the plea that the suit has to fail as it seeks redemption of only 40
cents out of the 86 cents mortgaged. Another contention that they raised was
that all members of the Koikkalazhikathu tarwad who are necessary parties to
the suit have not been impleaded and therefore, the suit is bad for
non-joinder of parties. In case redemption is allowed they claim value of
improvements effected by them.
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FOLDER NO – 6090
JUNIOR MEMBER OF A TARWAD
If the
tarwad has a corporate character, and a personality of its own distinct from
the members thereof for certain purposes, the question arises whether any
member of the tarwad can institute a suit for redemption of a mortgage
executed by the tarwad on tarwad property on the theory that every member is
a part owner of that property. I think neither principle nor precedent would
warrant the conclusion that a junior member can institute a suit for
redemption, unless there are circumstances disabling the karnavan from filing
the suit.
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FOLDER NO – 6091
JUNIOR MEMBER OF A TARWAD
The
tarwad has always been understood as a group of persons, and not as a
juristic person different from the group. The rights of the tarwad are the
rights of the members collectively; in other words, the rights of the tarwad
inhere in every member of the tarwad in part. The karnavan being the
accredited representative of the entire group, his competency to exercise the
rights of the tarwad is full. But it does not mean that a member of the
tarwad has no proprietary right in the tarwad property; as a part-owner he is
entitled to exercise the rights of the tarwad in relation to tarwad
properties demised to strangers when the karnavan is not a competitor with
him in field. It is now beyond doubt that a junior member of a tarwad is
entitled to redeem tarwad property outstanding on mortgage with a stranger.
This right can be explained only by holding that right of the tarwad to
redeem its properties inheres in every member of the tarwad in part. Every
member of a tarwad is recognised to be a part-owner of its equity of
redemption. Likewise must be the case of resumption of property outstanding
on a demise of lease or kanam with a stranger. Every member of a tarwad is a
part owner of its right of resumption; and a tenant cannot be heard to say
that the landlord is only the "tarwad" and that therefore a member
of the tarwad cannot resume the property from him. Every member of a tarwad
is, in respect of its property outstanding on a demise, a bit of the
landlord, and as such entitled to claim its resumption from the tenant.
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