ALLIED LAWS

6.  Gift deed – Cancellation of registered gift deed requires mutual consent of both the parties and their participation – Gift deed cancellation not valid [Transfer of Property Act (1882), section126; Registration Act (1908), section 17]

Kolli Rajesh Chowdary vs. State of Andhra Pradesh and Ors. AIR 2019, Andhra Pradesh 40

A gift settlement deed was executed out of love and affection by the respondent (grandmother) for the petitioner (grandson) with a view to provide the said property for his livelihood. The gift was accepted and possession of the property was delivered to the petitioner on the same day. Thereafter, the petitioner made an online application and paid the requisite fee and requested for mutation of the said property in his name in the revenue records and for issuance of pattadar passbook. Since the date of the gift settlement deed, the petitioner was in continuous possession and enjoyment of the property covered by the deed.

In the year 2019, the petitioner noticed that the respondent had executed a deed of cancellation, dated 29^th September, 2017, registered the same and revoked the gift settlement deed executed by her in favour of the petitioner. The petitioner also noticed that after execution of the cancellation deed, she had further executed a sale deed, dated 28^th October, 2017, in favour of another person and registered it on 6^th November, 2017. Since the property in question was transferred in favour of the petitioner with absolute rights by the respondent by executing the registered gift settlement deed, she had no right to execute the deed of cancellation either cancelling or revoking the gift settlement deed already executed by her in favour of the petitioner. The reason for cancellation of the gift deed was mentioned by the respondent to be deception and non-fulfilment of the word given by the petitioner to the respondent.

It was observed that there cannot be unilateral cancellation of registered sale deeds and that a deed cancelling a sale deed can be registered only after the same is cancelled by a competent civil court after notice to the parties concerned. In the absence of any declaration by a competent court or notice to parties, the execution of the deed of cancellation as well as its registration are wholly void and non-est and such transactions are meaningless transactions.

Accordingly, it was held that the said deed of cancellation / deed of revocation was null and void and that it was of no effect. As a sequel to the said finding that the cancellation deed or revocation deed was null and void and further, in view of the settled legal position that no one can convey a better title than what he / she has, it was further held that the subsequent sale deed executed by the respondent was also not valid.

Further, it was contended by the respondent that if the petitioner was aggrieved by the cancellation or revocation deed he had to approach a civil court and seek the common law remedy for setting aside the same but he could not approach the writ court.

It was held that if the petitioner was aggrieved by the cancellation or revocation deed which was unilaterally executed and was null and void and meaningless, it was just and fair to allow the writ petition leaving it open to the executants of the cancellation deed or revocation deed to seek the common law remedy by approaching the civil court.

7.  Lawyer’s statement – Client not bound by the lawyer’s statements or admissions as to matters of law or legal conclusions [Kerala Buildings (Lease and Rent Control) Act, 1965, S. 11]

Central Bank of India and Ors. vs. Beena Thiruvenkitam, AIR 2019 Kerala 164

A lease agreement had been entered into between the bank and the then owners of the building. After the respondent became the owner of the building, the appellant (tenant-bank) paid the rent of the building to the respondent and she had received it. After the lease period expired, the respondent informed the bank that she was not willing to renew the lease. The bank informed the petitioner that since a currency chest is attached to the branch, a suitable place will have to be found by the bank to house its branch and as and when a suitable place is found, they will surrender the tenanted premises. A writ petition was filed alleging that despite the undertaking made, the bank is not making any efforts to surrender the leased premises. The petitioner, therefore, sought appropriate directions from the court. Before the court it was stated by the learned senior counsel for the bank that the premises will be surrendered immediately after the construction of the currency chest. However, the senior counsel for the bank had not given any undertaking before the court that the premises shall be vacated within any specific time.

The learned single judge disposed of the writ petition by directing the bank to surrender vacant possession of the building occupied by it to the respondent within four months from the date of the judgement. The aforesaid judgement was under challenge in the appeal.

The senior counsel for the appellant bank contended that the writ petition filed by the respondent was not maintainable. He contended that no direction could be issued by the court to a tenant, in exercise of its writ jurisdiction under Article 226 of the Constitution, to surrender vacant possession of the building occupied by the tenant to the landlord. The respondent landlord contended that, when the writ petition came up for hearing (before the single judge) the counsel who appeared for the bank had submitted that the bank was ready to surrender possession of the premises to the respondent and it was on the basis of such undertaking that the writ petition was disposed of. He submitted that the appellants cannot now turn around and contend that the writ petition filed was not maintainable.

As per section 11, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act.

It was observed by the court that neither the client nor the court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. Consequently, the appeal was allowed.

8.  Foreign judgement and its implication on residents of India [Code of Civil Procedure, 1908, S. 13]

Jose Sousa vs. Ema Mata Fernandes and Ors. AIR 2019 (NOC) 644 (Bom.)

An application under Article 1102 of the Portuguese Civil Procedure Code, 1939 (Code) was filed seeking confirmation of the judgement and order passed by the Family Court at Bradford, U.K., by which the marriage between the applicant and the first respondent had been dissolved by a decree of divorce.

The applicant and the respondent are Goans, citizens of India, and were married to each other. Disputes and differences arose between the parties in the initial period of the marriage and the parties separated; the applicant had been residing in London since the year 2005, when he went there for the purpose of work. The applicant has since acquired Portuguese citizenship in the year 2009, while the first respondent continues to be an Indian citizen. The applicant and the first respondent resided together in Goa as husband and wife until the year 2005 and from the time the applicant left for the U.K. they have been residing separately.

Matrimonial petitions had been filed on two occasions for dissolution of the marriage. However, the same were dismissed. Another petition was filed before the Family Court at Bradford, U.K. A notice of the petition was served on the first respondent who sent a detailed reply thereto inter alia taking exception to the jurisdiction of the Family Court at Bradford to entertain the petition. It was contended that the parties were Indian nationals of Goan origin at the time of their marriage. Their marriage was solemnised at Margao, where it is registered, and thus the Family Court at Bradford would lack jurisdiction to entertain the petition only on the ground that the applicant has been residing in the U.K. The Family Court in the U.K. granted the decree of divorce. The application was filed for confirmation of the decree.

The only question for adjudication was whether the judgement of the Family Court at Bradford, U.K., could be confirmed.

The court held that the applicant has not shown how the Family Court at Bradford, U.K., would have jurisdiction to entertain the petition only on the basis of the residence of the applicant in U.K. Admittedly, the marriage was solemnised at Margao as per the family laws applicable in Goa, when both the parties were Indian nationals and were governed by the said law, and their marriage was registered in the office of the Sub-Registrar at Margao. Subsequently, the petitioner acquired Portuguese citizenship in the year 2009 and had been staying in the U.K. The parties last resided together at Margao. Even assuming that the U.K. Family Court had jurisdiction, the judgement of such court makes absolutely no reference to the specific ground raised of the absence of jurisdiction. Clauses (a) and (b) of section 13 of the C.P.C. provide as to when a foreign judgement is not conclusive. On the basis of these clauses the court stated that the judgement of the Family Court in the U.K. cannot be said to be conclusive and held that it was not possible to confirm the foreign judgement. In the result, the civil application was dismissed.

9.  Natural guardian – Transfer of property without the consent of minors u/s 8(3) – Suit for setting aside of document of transfer being mandatory was time-barred [Hindu Minority and Guardianship Act, 1956, S. 8(3); Limitation Act, 1963, Art. 60]

Thankamoni Amma Padmakumari Amma and Ors. vs. Ganapathi Suresh and Ors. AIR 2019 Kerala 170

A suit for partition and fixation of boundary was filed. The defendant, i.e., the father of the plaintiffs, had sold a property owned by the plaintiff’s mother after the mother’s death. At the time of such sale of property, the plaintiffs were minors. Seven years after attaining majority, a suit for partition and fixation of boundaries was filed. No period of limitation is mentioned anywhere in the Hindu Minority and Guardianship Act for exercising the option available to the minor u/s 8(3) of the Act.

It was observed by the court that no prayer for setting aside the document of transfer had been made. The legal position can be summarised to say that it is necessary to seek the relief of setting aside the document to exercise the option by a minor to avoid the disposal of immovable property by the natural guardian.

It was held that since the relief of setting aside the document of alienation cannot be avoided in a suit exercising the option u/s 8(3) of the Act challenging the disposal of immovable property by the natural guardian, the period of limitation in such a case would be the one available for setting aside a document of transfer under the Limitation Act. A separate provision is made under Article 60 of the Limitation Act to set aside a transfer of property made by the guardian of a ward as three years from the date of attainment of majority. Accordingly, the maximum time available to institute a suit for exercising the option u/s 8(3) of the Act is only three years from the date of attainment of majority and hence the suit is hopelessly barred by limitation.

10.  Stamp Duty – Deputy Commissioner of Stamp Duty cannot decide the validity of the document or the validity of the trust deed for the purpose of determining the stamp duty payable [Transfer of Property Act, 1882, S. 14; Karnataka Stamp Act, 1957, S. 28, 33, 39]

B.R. Jagadish vs. District Registrar and Deputy Commissioner for Stamps, Basavanagudi and Ors. AIR 2019 Karnataka 129

A gift deed was executed which was held to be insufficiently stamped. The reason for the insufficiency was due to the Deputy Commissioner’s objection to the fact that the gift of the immovable property was done by a trust and not by a family member. The stamp duty payable in case of a trust and a family member are different.

The facts of the case suggested that a private trust was purported to have been formed by one of the family members where certain conditions in violation of rules of perpetuity as per section 14 of the Transfer of Property Act were laid down. Hence, the trust became null and void and inoperative in the eyes of law, being void ab initio. Thereafter, a gift deed was drafted for the purpose of gifting the properties to children. However, the Deputy Commissioner impounded the said gift deed stating that proper stamp duty had not been paid on the instrument. It was alleged that the property belonged to the trust and not the family members and that the gift deed was in the nature of conveyance and hence a higher stamp amount was applicable.

The Court held that while deciding the stamp duty under the provisions of sections 33 and 39 of the Stamp Act, the recitals of the document have to be looked into. The Deputy Commissioner for Stamps cannot decide the validity of the document or the validity of the trust deed. It was for the person who disputes the gift deed or the trust deed to approach the competent civil court. The authorities exercising powers under the provisions of the Stamp Act have to consider the recitals to determine stamp duty and they have no jurisdiction to decide the title between the parties. Accordingly, the impugned order was quashed.