Registered document – Time from which it operates – Registration Act 1908, S. 47
Deed of confirmation was executed on 3-8-1999 by owners in favour of purchase of flats. It was presented on same date for registration. On 3-5-2001 registration fee was paid. Deed of confirmation was duly registered on 3-1-2005. Deed of confirmation is operative from 3-8-1999 in view of section 47 of Registration Act.
Mahendra Valji Rathod v. National Radio and Electronics Company [2019(5) Mh.L.J. 795(BOM)(HC)]
Will – Genuineness of will – Execution of will : Succession Act of 1925, S. 63(c) and Evidence Act, S. 68
Will must be proved by attesting witnesses. In the present case witnesses had only identified thumb impression of deceased on Will. In absence of evidence on record that after testator put her thumb impression on document of Will, attesting witnesses put their signatures on said document, it cannot be held that there was attestation by two witnesses. Evidence is held to be insufficient so far as section 63(c) of Succession Act is concerned.
It is well settled that execution of a document does not mean mechanical act of signing the document or getting it signed but an intelligent appreciation of the contents of the document and signing in token of acceptance of those contents.
Allegation that Will in question is forged Burden of proof is on person making such allegation.
Dilip s/o Devidas Kachare v. Prabhavatibai W/O Ratnakar Dudggikar [2019(5) Mh.L.J. 338 (Nagpur)(HC)]
Mortgage by conditional sale. Transfer of property Act, 1882 ss 54 and 58(c) :
It is settled law that, section 58(c) contains the definition of a mortgage by conditional sale. It is with the greatest difficulty in many cases that such mortgages can be distinguished, from sale with a condition for repurchase. As cl (c) of section 58 indicates, the real point of difference between the two kinds of transactions is that, in the case of a mortgage by conditional sale, the sale is only ostensible, whereas, in the case of an out and out sale, it is real. The ostensible or real nature of transaction can, however, be only determined by finding out the intention of the parties. Thus, the intention of the parties is to be gathered for deciding the character of the document.
Bhagubai Nana Dhondge (deceased) through the Legal Heirs Chandrakant Shivaji Dhondge and others v. Shantabai w/o. Dasharath Suryawanshi and others. [2019(5)Mh.L.J. 393(BOM)(HC)]
Registered Document – Registration Act, 1908, S. 49 – Mohammedan Law – oral gift – Condition
A registered document carries with it a presumption that it was validly executed. It is for party challenging genuineness of transaction to show that transaction is not valid in law.
Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others (2009) 6 SCC 160 as under:-
“13. The conditions to make a valid and complete gift under the Mohammedan law are as under:
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.
It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee’s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.
Jamila Begum (D) Thr. L.RS. v. Shami Mohd (D) Thr. L.RS. and Another [2019(4)Mh.L.J. 500(BOM)(HC)]
Mortgage by conditional sale or sale with option to repurchase: Transfer of property, 1882, Sec. 58(c)
Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for re-conveyance in accordance with section 58(c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. The language used in the agreement may not always be conclusive.
Ganpati Babji Alamwar (D) By Lrs. Ramlu and Others v. Digambarrao Venkatrao Bhadke and Others: AIR 2019 Supreme Court 4292
Jurisdiction of National Consumer Dispute Redressal Commission (NCDRC) – Imposition of statutory due arising out of “deficiency in service” can be determined by consumer fora: Consumer Protection Act, 1986, Sec 2(1)(g), 2(1)(o)
The validity of the imposition of a statutory due arising out of a “deficiency in service”, can be undertaken by the consumer fora as per the provisions of the Act. The decision of this Court in the case of HUDA v. Sunita (AIR Online 2005 SC 256, wherein it was held that NCDRC has no jurisdiction to adjudicate the legitimacy of the aforementioned statutory dues, was rendered without considering any of the previous judgments of this Court and the objects of the Act. Consequently, the law laid down in the aforesaid case does not hold good before the eyes of law, and is thereby overruled.
The court noted that those exactions, like tax, and cess, levied as a part of common burden or for a specific purpose, generally may not be amenable to the jurisdiction of the Consumer Forum. However, those statutory fees, levied in lieu of service provided, may in the usual course be subject matter of Consumer Forum’s jurisdiction provided that there is a ‘deficiency in service’ etc.
Punjab Urban Planning and Development Authority (Now Glada) v. Vidya Chetal: AIR 2019 Supreme Court 4357
Auction sale of property of debtor – Forfeiture of earnest money deposit : Recovery of Debts Due to Banks and Financial Institutions Act 1993, Ss. 29, 25
Failure by successful bidder to deposit entire bid amount on 15th day from date of sale of property of debtor. Successful bidder seeking extension of time to pay entire bid amount on ground of failure to disclose encumbrances on property before conducting auction sale. Sale was on ” as is where is” basis Recovery officer has no power to grant extension. Forfeiture of earnest money, proper.
Kumar Urban Development Pvt. Ltd. v. Indian Bank and Others: AIR 2019 Bombay 244
Declaration of title – Title acquired by virtue of registered document cannot be unsettled by mere declaration.
Parties in joint possession of suit property. Defendant claiming absolute ownership as he paid entire consideration for purchase of property And at time of registration, plaintiff fraudulently inserted his name as one of
co-purchasers. Plaintiff himself declared that he did not pay any consideration money Relinquishment of title by one of co-sharer in whose name registered title deed exists, cannot be said to be collateral transaction. Ownership can only be relinquished by deed which is also compulsorily registerable. Moreover defendant failed to make any attempt within three years from registration of said deed or within period of limitation from date of declaration made by plaintiff to get deed of relinquishment or release or rectification executed by plaintiff. Claim of absolute ownership by defendant, not tenable as barred by limitation u/Art. 113 of Limitation Act. Title acquired by virtue of a registered document cannot be unsettled by a mere declaration.
Paritosh Kumar Basu v. Sandhya Basu and Others: AIR 2019 Calcutta 292
Sale certificate – stamp duty – sale certificate issued by Authorised officer of Bank – Is liable for stamp duty under Art. 18(c) r.w. Art. 23 of Sch. 1: Stamp Act 1899, S.47-A
The Sale Certificate issued by the Authorised Officer of the bank cannot be agnated with the Sale Certificate issued by a Civil or Revenue Court. The nomenclature given to the document issued by the Authorized Officer would be irrelevant for exemption from payment of stamp duty and the same will not be covered under Article 18-C Schedule 1 of the Stamp Act. Therefore, the Sale Certificate issued by one who is neither Civil or Revenue Officer would not fall u/s. 17(2)(xii) of the Registration Act and the Sale Certificate issued by the Authorized Officer is liable for stamp duty on the market value as per Article 18-C read with Article 23 of Schedule 1 of the Stamp Act. If proper stamp duty is not paid for the said Sale Certificate and registered as required under law, then it is only a still born child and does not confer any right to the petitioner whatsoever. When the Sale Certificate is not properly stamped and registered, it is a void document and no right would vest upon the petitioner based on the same. In the case of the property being under-valued, then, the Registering Authority is entitled to refer the matter to the Collector under Section 47-A of the Stamp Act. Therefore, in respect of the Sale Certificate issued by the Authorized Officer of the bank, Section 47-A of the Stamp Act is applicable.
Dr. R. Thiagarajan v. The Inspector General of Registration, Santhome, Chennai and other: AIR 2019 MAD 274
Overriding effect – Proceeding under SARFAESI Act holds primacy over MPID Act – Recovery debt – Priority of charge – Right of secured creditor to realise secured debts shall have priority over all debts and Govt. Due
It is evident that debt which is secured under the provisions of a statute becomes the first charge over the property in question and has to give away to a crown debt, which is in the nature an unsecured debt.
Kulbir Singh Dhaliwal and Others v. U.T. Chandigarh : AIR 2019 Punjab and Haryana 151
Claim for, by society or flat purchasers Construction was completed Full occupancy certificate and completion certificate already granted. Failure by promoter to execute conveyance deed though period of five years from first date of agreement of sale already lapsed Order granting deemed conveyance to society, proper.
Mayfair Housing Pvt. Ltd. v. State of Maharashtra and Another: AIR 2019 Noc. 684 (Bom)
Suit by minor – Through next friend – Joint family property –Civil P. C. 1908, O.32, R. 1:
Sale by Karta of joint family property. Failure to prove legal necessity. Failure to prove that he was heavily indebted. Karta selling land though not having other source of income. Suit for partition and separate possession filed by minor children of Karta through next friend cousin against Karta and purchasers of property Maintainable. Such sale not binding on other members of joint family.
Sangnath Mahalingappa Ambulge and Others v. Babu Sidling Ambulge And Others: AIR 2019 Noc. 685(Bom)