Category: Allied Laws

11. The Correspondence, RBANMS Educational Institution vs. B. Gunashekar and Anr.

Special Leave Petition (Civil) No. 13679 of 2022 / 2025 INSC 490 16^th April, 2025

Suit for Injunction – To restrain the owner from disposing of the property – Agreement to sell – Does not confer right, title, or interest in the property – Suit without cause of action – Suit dismissed.

Directions were also issued to registration authorities to report any cash transactions in the purchase of properties which was in upwards of ₹2,00,000/-. [Order VII, Rule 11(a) and (d), Code for Civil Procedure, 1908; S. 269ST, Income-tax Act, 1961].

FACTS

The Respondents (original Plaintiff) had filed a suit seeking a permanent injunction restraining the Appellant (Original Defendant) from creating any third-party interest over the suit property. The Appellant is an educational institution, established in 1873. Thereafter, in 1929, the Appellant purchased the suit property and has been in continuous possession since. The Respondents had alleged that they had entered into an agreement to sell with one third party (vendor) for the purchase of the suit property. Further, as per the agreement to sell, the Respondents had already paid ₹75,00,000/- to the vendor in cash. Therefore, the Appellant must refrain from manipulating the title deeds of the suit property and further restrained from disposing of the said suit property to any other person. The Appellant filed an application under Order VII, Rule 11(a) and (d) of the Code for Civil Procedure, 1908 (CPC) for seeking rejection of the suit filed by the Respondent on the ground that the Respondents are merely agreement holders and not the owners of the suit property and as such, an agreement to sell does not confer any right, title, interest on the prospective buyer. It was further contended by the Respondent that if the alleged agreement to sell exists, then the remedy would lie against the vendor with whom the agreement has been entered into. The Appellant also contended that the Respondent had a pattern of filing such suits in respect of valuable properties by producing alleged agreement to sell. The learned Trial Court, however, dismissed the application filed by the Appellant for dismissing the suit under Order VII, Rule 11(a) and (d) of the CPC. The learned Trial Court had opined that under Order VII, Rule 11(a) and (d) of the CPC, it must confine only to the averments made in the plaint without examining the defence of the Appellant. Further, the Respondent had cause of action against the Appellant. Aggrieved, a revision application was filed before the Hon’ble Karnataka High Court. The Hon’ble High Court concurred with the views of the learned Trial Court and rejected to dismiss the suit under Order VII of the CPC.

Aggrieved, a special leave petition was filed by the Appellant before the Hon’ble Supreme Court.

HELD

The Hon’ble Supreme Court, at the outset, observed the consistent pattern of filing suits by the Respondent in high-value properties. Further, it also noted that the vendors had not been made parties to the suit and the addresses were absent from the plaint. The Hon’ble Supreme Court held that as per section 54 of the Transfer of Property Act, 1882, an agreement to sell, cannot by itself create any right, title interest in the suit property. Thus, the Respondent did not have any cause of action against the Appellant. Therefore, the Hon’ble Court held that the suit ought to have been rejected for want of a cause of action.

Before parting, the Hon’ble Court raised doubts as to how the Respondent allegedly pay ₹75,00,000/- to the vendor in cash despite provisions of Section 269ST in the Income-tax Act, 1961 which debars any person from paying in cash above ₹2,00,000/-. Accordingly, the Hon’ble Court directed the Income-tax Department to take cognisance of the said matter. Further, directions were also issued to registration authorities to report any cash transactions in the purchase of properties which was in upwards of ₹2,00,000/-.

The appeal was accordingly allowed.

12. Angadi Chandranna vs. Shankar and Ors.

Civil Appeal No. 5401 of 2025 (SC) / 2025 INSC 532 22^nd April, 2025

Joint Hindu Family – Suit Property – Self-acquired or Joint property – Partition of Joint Hindu Family – Partitioned suit property becomes the self-acquired property of that person. [S. 100, Code for Civil Procedure, 1908].

FACTS

A suit was instituted by Respondents No. 1 to 4 (Original Plaintiff/children of Defendant No. 2) for seeking partition and separate possession in the suit property. Briefly, Defendant No. 2 (along with his two brothers) had divided the joint family properties vide a registered partition deed after the death of their father. The suit property was partitioned in favour of one of the brothers. Thereafter, Defendant No. 2 acquired the said suit property (from his brother) via a purchase agreement deed and thereafter, sold it to one Angadi Chandrana (Defendant No. 1 / Appellant). It was contended by the Respondent No. 1 to 4 that the said suit property belonged to the Joint Hindu Family and was not an independent / self-acquired property of the Defendant No. 2. The learned Trial Court allowed the suit and held that the property was in fact belonging to the Joint Hindu Family and thus the property must be divided. An appeal was preferred by Defendant No. 1, wherein the first Appellate Authority allowed the appeal and reversed the finding of the learned Trial Court. Challenging the order, a second appeal was preferred by the Respondent No. 1 to 4 before the Hon’ble Karnataka High Court. The Hon’ble allowed the appeal and restored the order was of the learned Trial Court.

Aggrieved, an appeal was preferred before the Hon’ble Supreme Court.

HELD

The Hon’ble Supreme Court observed that all the properties of the Joint Hindu family were partitioned via a registered partition deed. Therefore, after partition, the properties which were so divided become the self-acquired property of that person. Further, the suit property was purchased by Defendant No. 2 (from his brother) by using his own funds and loans. The Hon’ble Court also noted that the mere existence of children in a Joint Hindu family cannot by itself make the father’s (Defendant No. 2) self-acquired property as joint property. The character of the property must be taken into consideration before determining the nature of the property. Thus, the appeal was allowed, and the original order of the learned Trial Court was set aside.

13. Logabai vs. Nil

AIR 2025 (NOC) 198 (MAD)

17^th December, 2024

Guardian ship – Mentally retarded child – Father died in car accident – Mother also dead – Only Grandmother alive – Mentally fit to take care of the child – Grandmother appointed as the guardian and manager of the property. [A. 226, Constitution of India; S. 7, Guardian and Wards Act, 1890].

FACTS

A petition was filed for the appointment of the Petitioner as the legal guardian and manager of the properties of her granddaughter, Ms. Amudha Narmada. It was contended by the Petitioner that her granddaughter was a duly certified mentally retarded child by the Institute of Mental Health. As per the certificate, Ms. Amudha Narmada suffers from 70 per cent mental disability. It was the claim of the Petitioner that her granddaughter is under her care and custody. Further, the Petitioner is a 70-year-old woman who is unable to meet the expenses to maintain herself. Further, it was submitted that the father of the child had died in a car accident, and the learned Trial Court had allowed compensation to the child. However, the same cannot be withdrawn unless the court has appointed a legal guardian. It was further submitted that the mother of the child had also passed away and that there was no family member other than the Petitioner.

HELD

The Hon’ble Madras High Court, after going through all the claims, was satisfied that the child was indeed suffering from mental disability. Further, the child had no family member other than her grandmother (Petitioner), who is a mentally fit person to take care of the child. Therefore, the Hon’ble accepted the plea and appointed the Petitioner as the legal guardian and manager of the properties of the child.

The Petition was thus allowed.

14. Muhammed Kutty vs. Sub Registrar, Office of the Sub Registrar, Palakkad and Anr.

AIR 2025 Kerala 44 / W.P. (C) No. 35494 of 2024 27^th November, 2024

Registration – Property – Settlement Deed – Registrar cannot make enquiry into the prior title deeds – Bound to register the deed [S. 34, 69(2), Registration Act, 1908; R. 67, Registration Rules (Kerala)].

FACTS

The Petitioner is one of the sons and legal heirs of one Mr. Abubacker Haji. After the death of the Petitioner’s father, the Petitioner and the remaining legal heirs decided to settle the property in favour of the wife of Mr. Haji (i.e. mother of the Petitioner). Accordingly, the legal heirs prepared a settlement deed and submitted the same for registration before the office of the registrar (Respondents). However, the Respondent refused to register the settlement deed and insisted that the Petitioner to provide a copy of the prior deed of the property i.e. to prove that the father of the Petitioner was in fact the owner of the property before he died.

Aggrieved, a petition was filed before the Hon’ble Kerala High Court (Ernakulam).

HELD

The Hon’ble Kerala High Court observed that as per S. 34 of the Registration Act, 1908 (Act), the powers of the Respondent are limited only to make an enquiry as to whether the document was in fact executed by the persons who purport to have executed the document. Further, the Hon’ble Court observed that as per Rule 67 of the Registration Rules, Kerala, the Respondent have no right to enquire into the validity of a document or to question the right of executant to execute a document or insist on the production of title deeds or prior document of the property except in the case of marriage document. Thus, the Respondent was directed to register the settlement deed.

The petition was therefore allowed.

15. Muruganandam vs. Muniyandi (died) through legal heirs.

2025 Live Law (SC) 549 / Civil Appeal No. 6543 of 2025 8^th May, 2025

Suit for specific Performance – Sale Deed – Unregistered and unstamped – Admission of the sale deed – An Unregistered document can be taken into evidence in cases of specific performance or any other collateral proceedings. [S. 17, 49, Registration Act, 1908; S. 35, Indian Stamps Act, 1989].

FACTS

The Appellant (Original Plaintiff/buyer) and the Respondent (Original Defendant/seller) had entered into a sale agreement. As per the sale deed, certain payments were made by the buyer and in exchange, the seller had put the buyer in possession of the property. Thereafter, the entire payment consideration was paid by the buyer. It was the contention of the Appellant (buyer) that the Respondent (seller) was not taking any steps for the execution of the sale deed despite multiple requests. Thus, a suit for specific performance was instituted by the Appellant (buyer) for the execution of the sale deed. During the pendency of the suit, an interim application was filed by the buyer for admission of the original copy of the agreement for sale. It was contended by the buyer that the photocopy of the document was already attached along with the plaint; however, for genuine reasons, the original copy remained to be submitted before the Court. The learned Trial Court, however, rejected the said application on the ground that the document was unregistered and unstamped, and therefore the admission of the same was barred by section 17 of the Registration Act, 1908 (Act) and section 35 of the Indian Stamps Act 1989. Thereafter, a revision petition was filed by the buyer (Original Plaintiff/buyer) before the Hon’ble Madras High Court. However, the Hon’ble High Court held that the decision of the learned Trial Court does not need any interference.

Aggrieved, an appeal was preferred before the Hon’ble Supreme Court.

HELD

The Hon’ble Supreme Court held that although an unregistered document cannot be taken into admission as evidence, the provision to section 49 of the Act specifically allows the Courts to take into account an unregistered document in a suit for specific performance or any other collateral proceedings. Therefore, the decision of the Hon’ble High Court was set aside, and the learned Trial Court was directed to admit the unregistered document into evidence in the suit for specific performance.

The appeal was therefore allowed.

BCAJ Admin

11 Bar Of Indian Lawyers Through its President Jasbir Singh Malik vs. D.K. Gandhi PS National Institute of Communicable Diseases

2024 Live Law (SC) 372

14th May, 2024

Advocates — Professionals — Highly skilled — Success depends on various factors — Cannot be compared with business — Cannot be held for deficiency of service. [S. 2(1)(o), Consumer Protection Act, 1986]

FACTS

The Appellant, an advocate was hired by Mr. DK Gandhi (Respondent) for legal services. Disputes arose between them and the Respondent filed a consumer complaint before the district forum for deficiency in services. The District forum decided the complaint in favour of the respondent. The State Commission held that the services of lawyers /advocates did not fall within the ambit of “service” defined under section 2(1)(o) of the CP Act, 1986. The NCDRC, however in the Revision Application preferred by the respondent passed the impugned order holding that if there was any deficiency in service rendered by the Advocates / Lawyers, a complaint under the CP Act would be maintainable.

Being aggrieved by the said impugned order passed by the NCDRC, the present set of appeals has been filed by the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India.

HELD

With regard to the nature of the work of a professional, which requires a high level of education, training and proficiency and which involves skilled and specialized kind of mental work, operating in the specialized spheres, where achieving success would depend upon many other factors beyond a man’s control, a Professional cannot be treated equally or at par with a Businessman or a Trader or a Service provider of products or goods as contemplated in the CP Act.

The appeal is allowed.

12 Umesh Kumar Gupta vs. Collector Rewa

AIR 2024 MADHYA PRADESH 57

12th January, 2024

Borrower — Non-performing assets — Financial institutions can invoke arbitration clauses as well as recourse under SARFAESI. [S. 11, 14, 35, 37 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI); S.36, Arbitration and Conciliation Act, 1996 (ACA)].

FACTS

The Petitioner is a borrower while respondent No. 2 is a financial institution which had extended a loan facility to the petitioner and to secure the same, the petitioner had mortgaged a certain piece of land. Petitioner defaulted in repayment of the loan leading to the loan account becoming NPA and the financial institution took recourse under SARFAESI. During the SARFAESI proceedings, the Petitioner objected stating that the financial institution had already invoked the arbitration clause in the agreement between the petitioner-borrower and financial institution whereafter award had been passed in favour of the financial institution. The objection was rejected and hence this Petition.

HELD

No doubt Section 11 of the SARFAESI Act mandates disputes to be resolved by way of conciliation and arbitration. Section 35 of the SARFAESI Act stipulates that provisions of the SARFAESI Act shall have overriding effect over anything inconsistent with any other law for the time being in force or any instrument having effect by virtue of any such law. Section 37 prescribes that the provisions of the SARFAESI Act are mandated to take effect in addition to and not in derogation of several statutes. Meaning thereby that the overriding effect of the SARFAESI Act mandated in Section 35 of the SARFAESI Act is diluted to a considerable extent by Section 37 of the SARFAESI Act by providing that the provisions of SARFAESI Act would be in addition to and not in derogation of various enactments referred to in Section 37 of the SARFAESI Act, and also any other law for the time being in force, including Arbitration and Conciliation Act. Hence, no fault can be found with the respondent financial institution invoking Section 14 of the SARFAESI Act by approaching the District Magistrate, Rewa.

13 Binita Dhruv Karia vs. Aashna Dhruv Karia

AIR 2024 (NOC) 194 (BOM)

2nd May, 2023

Guardian — Appointment of Guardian — Mental retardation not covered under “mental illness” — No remedy other than Writ — Mother was allowed to be appointed as the guardian of her major daughter to manage the properties for the well-being of her daughter. [S. 7, Guardians and Wards Act, 1890].

FACTS

The Petitioner is the mother of the ward, a major and sought to be appointed as her legal Guardian. Since the ward was the joint owner of immovable property, it was necessary for the Petitioner to be appointed as the guardian to make decisions for the well-being of her child who suffered from mental retardation. However, there was no remedy other than filing this Writ Petition.

HELD

The child was suffering from mental retardation which is not considered a “mental illness” under section 2(s) of the Mental Health Act, 2017 and the Guardians and Wards Act, 1890 only allows for the appointment of a Guardian for minors. Having considered the peculiar facts, the mother / petitioner was allowed to be appointed as the guardian of her major daughter to manage the properties for the well-being of her daughter as the said properties were jointly owned by her daughter.

The Petition was allowed.

14 Maya Gopinath vs. Anoop S. B. & Anr

SLP (Civil) 13398 of 2022

24th April, 2024

Hindu Law — Stridhan — Wife’s absolute property — Husband has no rights.

FACTS

The Appellant was the wife of the Respondent. On the occasion of their marriage, she was gifted with gold and cash by her family, which was misappropriated by her husband to clear old liabilities. The couple drifted apart and she filed a case for recovery of her assets. The trial court held in favour of the appellant. The High Court reversed the order on the requirement of evidence.

Aggrieved by the said order, an appeal was filed before the Hon’ble Supreme Court.

HELD

The Hon’ble Supreme Court observed that the Stridhan is an absolute property of the wife and the husband has no title. The same can be used by the husband in times of distress and it is his duty to restore the same. In the interest of justice and the passage of time, as compensation for the gold and cash, the apex court directed the husband to pay a sum of R25 lakhs within six months.

15 Shonali Dighe vs. Ashita Tham and others

AIR 2024 (NOC) 242 (BOM)

8th November, 2023

Will — Execution of Will — Under suspicious circumstances — Probate not granted. [S. 63, Succession Act, 1925; S. 68, Evidence Act, 1872].

FACTS

On 20th June, 2003, Mr. Bipin Gupta executed a Will while undergoing treatment for renal failure and hip fracture in Bombay Hospital which is the subject matter of the present suit proceedings. The two Executors named in the Will were Mr. Vasant Sardal and Mr. Behram Ardeshir whereas Will was attested by Mr. Santosh Raje and Mr. Anil Sardal as attesting witnesses. By this Will, Mr. Bipin Gupta bequeathed his entire estate to charity to the exclusion of his family members/legal heirs and indirectly to the Executors. On 04th September, 2003, Mr. Bipin Gupta expired in Flat No. 2, Firdaus Building. The Executors and the attesting witnesses without informing any of his family members took his body for cremation. Neighbours informed the Defendants (family members) about the demise of Mr. Bipin Gupta.

Disputes arose among the parties, the said petition was filed by Mr. Vasant Sardal one of the executors of the Will.

HELD

The Court made several observations such as the doctor treating the deceased is not an attesting witness, the bequest was obscure and in the name of a charitable trust controlled by the executors, the executor and witnesses were related parties, no evidence of who drafted the Will, signatures on each page were not identical and unnatural exclusion of heirs of the testators also raised suspicion.

Hence, the Will was held to be not genuine and the petition was dismissed.

BCAJ Admin

11.  Delay in filing objections – Period of
Limitation only applicable to the initial filing of objections and not to
re-filing. [Arbitration and Conciliation Act, 1996; Section 34]

Northern Railway vs. Pioneer Publicity
Corporation Pvt. Ltd. (2017) 11 Supreme Court Cases 234

There
was a refusal to condone the delay of 65 days in re-filing the objections u/s.
34 of the Arbitration and Conciliation Act, 1996 (Act). Admittedly, the
objections originally were filed within the time stipulated u/s. 34 of the Act.
However, since there were objections, time was granted by the Deputy Registrar
of the High Court to remove the objections within a period of 7 days. This was not
done. Eventually, the appellant re-filed the matter where there was a delay of
65 days.

The
Court held that section has no Application in re-filing the Petition but only
applies to the initial filing of the objections u/s. 34 of the Act.

12.  Hindu Law 
–   Joint   Hindu  
Family   –   Family Settlement
– Outsider can be a party to such family settlement. [Transfer of Property Act,
1882; Section5]

Thimma Reddy vs.
Chandrashekara Reddy and Ors. AIR 2018 KARNATAKA 54

The
plaintiffs 1 – 3(sons of first defendant) and plaintiffs 4 – 5 (sons of second
defendant) pleaded that their grandfather owned a number of immovable
properties. He died intestate. No partition had taken place during his
lifetime. On 8.9.1986 there took place a partition among defendants 1 to 3 and
in this partition, properties described in schedule ‘C’ properties fell to the
share of third defendant. But, the third defendant was a stranger to the
family. Since he was not a member of the joint family, he was not entitled to
share. The defendants 1 and 2 colluded with the third defendant and entered
into a partition and thus the schedule ‘C’ property was allotted to him. This
allotment of ‘C’ schedule property to third defendant was alleged to be
illegal.

Reliance
was placed on the Supreme Court’s decision of Kale and others vs. Deputy
Director of Consolidation and others AIR 1976 SC 807, wherein it was
observed that it is absolutely clear that the word ‘family’ cannot be construed
in a narrow sense so as to confine the parties to the family arrangement only
to persons who have a legal title to the property.

It was
held by the High Court that it is clear that a family settlement or arrangement
need not be necessarily among the members of joint family having a right of
succession, but even an outsider to the family can be given a share.
Requirement is that such an arrangement must be fair and bona fide.

13.
Mesne Profits –Property not renovated by lessee – Damages to be paid to lessor
on service of notice.
[Transfer of Property Act, 1882; Sec. 108]

The General Manager, Bharat Sanchar Nigam
Limited (BSNL) vs. Radhika Chettri AIR 2018 (NOC) 285 (SIK.)

Respondent,
the lessor, is the absolute owner of the flat. The said property was leased out
to the Appellant, the lessee, for a monthly rent for a period of 5 years. A
Clause existed in the Lease Deed that the lessee shall have the option of
renewing the lease of the said premises for further periods, on giving notice
of such intention, to the lessor at least three months prior to expiration of
the lease. The lessee, however, failed to take necessary steps as provided,
hence on expiry of the lease period, the respondent’s husband vide letter, and
requested the appellant to either increase the house rent by 30% or to vacate
the occupied premises. The appellant, vide letter intimated the respondent that
the suit property would be handed over and the said letter be treated as
“Notice” of three months. That, on checking the suit premises it was
found to be in a dilapidated condition which the appellant was bound to repair
before handing over.

In view
of sections108(h) & (m), the court held that T.P. Act requires that damages
caused to the suit property be made good within three months, which was not
complied with in the instant case. The term “mesne profit” includes
not only the profits which the person in wrongful possession actually received,
but also those which he might have received with ordinary diligence, but does
not include profits due to improvements made by person in wrongful possession.
Given a wider connotation it would mean that which the Appellant has lost on
account of the wrongful act of the Respondent, in other words the amount the
Respondent might reasonably be expected to have made, had he been in
possession. Hence, the Respondent is entitled to mesne profits.

14.  Property – Right of a Female – Scope and
Object of  Section14(1).   [Hindu 
Succession  Act,  1956; Section
14(1)]

Daulatarao Ramachandra Jadhav and Ors. vs.
Janabai Anandarao Jadhav and Ors. AIR 2018 KARNATAKA 62

It was
observed by the High Court in regard to section 14(1) that under the Hindu
Succession Act, it is clear that section 14(1) has a very wide and extensive
application and has to be read in a comprehensive manner as the Act overrides
old law governing the properties of the female. The Act confers full heritable
capacity and absolute ownership on the female heir. This section dispenses with
the traditional limitations of conferring limited estate on the female Hindu to
hold and transmit the property. It should be borne in mind that under Hindu Law
which in operation prior to the coming into force of this Act, a woman’s
ownership of property was hedged in by certain delimitations on her right of
disposal and also on her testamentary power in respect of that property and
also with reference to her absolute ownership. By virtue of interpretation of
the provision u/s. 14 of the Hindu Succession Act, in the enactment, the above
said barricades have been completely removed and the Act presupposes if any
property possessed by a female Hindu whether acquired before or after
commencement of the Act becomes absolute property of the said lady, if the said
property was given in recognition of her pre-existing right.

15.
Will – Attestation – Two witnesses mandatory – May not be present at the same
time. [Evidence Act, 1872; Section 68]

Sanjeev Juneja vs. State
and Ors. AIR 2018 DELHI 79

The Hon’ble High Court held
that the law requires attestation by minimum two witnesses, it is not mandatory
that both must have been present at the time when the testator executed the
document, the presence of the testator being more important when the witnesses
attest and further that, for proof of such execution and attestation, the
testimony of only one of such witnesses is enough, that also only if such
witness is alive and available.

BCAJ Admin

10. Books of Accounts – Entries in
loose papers – Incriminating materials seized in raids conducted on industries
– Not maintained in the regular course of business – Not admissible [Evidence
Act (1 of 1872), Section 34; Criminal Procedure Code (2 of 1974), Section  156].

Common Cause (A Registered Society) and Ors. vs. Union of
India (UOI) and Ors. AIR 2017 SUPREME COURT 540

There was a raid on some industries by the C.B.I., followed
by another raid by the Income tax Department, which reportedly led to recovery
of incriminating documents.

The Court stated that loose sheets of papers should be in the
form of “Books of Account”. While defining the term ‘books of account’, it
stated that entries in loose papers/sheets are irrelevant and not admissible
u/s. 34 of the Evidence Act, and that, a book is a book of account and such a
book of account should be regularly kept in the course of business.

The Court also stated that the value of entries in the books
of account shall not alone be sufficient evidence to charge any person with
liability, even if they are relevant and admissible. They are only
corroborative evidence. It is incumbent upon the person relying upon those entries
to prove that they are in accordance with the facts.

It was held that loose sheets of papers are wholly irrelevant
as evidence being not admissible u/s. 34 so as to constitute evidence with
respect to the transactions mentioned therein having no evidentiary value.

11. Consumer – Trust not a Person
and hence not a Consumer – Complaint filed under Consumer Protection Act – Not
maintainable. [Consumer Protection Act (68 of 1986); Section 2]

Pratibha Pratisthan and Ors. vs. Manager, Canara Bank and
Ors. AIR 2017 SUPREME COURT 1303

The issue in question was whether a complaint can be filed by
a trust under the provisions of Consumer Protection Act, 1986?

Section 2 (c) of the Act provided for the various reasons why
anyone could file a complaint.

However, a Complainant is defined u/s. 2 (b) of the Consumer
Protection Act, 1986, which states that a complainant could be a consumer, any
voluntary consumer association registered under the Companies Act, 1956, the
Central Government or the State Government, one or more consumers or the legal
heirs of a Consumer.

The inclusion of a trust was not apparent from the bare
reading of the text of the Section.

Section 2(d) defines consumer, where it describes the
activities performed by a ‘Person’, which would term him/her as a consumer. No
mention of a Trust or any other form of person is mentioned.

To have complete understanding, even the definition of
‘Person’ u/s. 2(m) of the Act was considered where it is declared that Person
does not include Trust.

It was then held by the Supreme Court that on perusal of the
above mentioned provisions, it is clear that a Trust is not a person and
therefore not a consumer. Consequently, it cannot be a complainant and cannot
file a consumer dispute under the provisions of the Act.

12. Evidence – Subsequent events
during litigation – Having direct bearing on the issue can be considered by the
Court even if it is brought before the Court for the first time[Evidence Act,
1872; Section 56].

Dinshaw Rusi Mehta vs. State of Maharashtra AIR 2017
Supreme Court 1557

The appeal came up before the Supreme Court out of the Writ
petition filed before the Hon’ble High Court. The brief facts of the issue to
appreciate the matter at hand will show that there was one Public and Charitable
Trust called the ‘Parsi Lying in Hospital’ (PLIH) located in Fort, Mumbai. PLIH
owned a land which had been allotted by the Secretary of State for India, for a
period of 99 years by executing an indenture of Lease, for setting up a
charitable hospital in Bombay.

In the year 1924, PHIL resolved to transfer the said land to
another Public Trust called the ‘Bombay Parsi Punchayat’ (BPP) vide High Court
Order. Insofar as the management of the hospital was concerned, a management
committee used to look after its day to day management. Some Trustees of BPP
were also the Trustees of PLIH.

The hospital continued for a few years and remained closed
for various years for various reasons. The Trust decided to re-start the
hospital in collaboration with one company called the ‘Krimson Health Ventures
Private Limited’(KHPL), which is an expert at running and managing hospitals.

The Trustees applied to the Charity Commissioner, the
approval for which was granted to execute the lease deed and the work to be
started by KHPL.

The Hon’ble High Court dismissed the Writ petition filed
against the approval granted.

The appeal filed before the Supreme Court was against the
order of the High Court.

During the pendency of the
litigation before the Supreme Court, KHPL, in whose favour the land had been
transferred for setting up a new hospital, vide their letter to
BPP/PLIH, informed them of the disinterest of KHPL in continuing the project
for the reasons mentioned in the letter.

It was held by the Court that, since, the subsequent events
brought to the notice of the Court, have a direct bearing over the controversy
involved in the case, they deserve to be taken note of for deciding the appeal
before them.

13.
Property Inheritance – Property from husband or father in law cannot be
alienated by unregistered compromise decree in favour of sister’s son –
Property to revert back to husband’s legal heirs. [Hindu Succession Act, (30 of
1956), Section 15(2)(b); Registration Act, (16 of 1908), Section 17]

Hari Ram and Another vs. Madan Lal and AnotherAIR 2017
PUNJAB AND HARYANA69

An ancestral property which was inherited by 4 sons having
1/4th share  each. One of the son’s wife
(Defendant no.2), after the death of her husband, voluntarily executed a decree
in favour of her sister’s son (Defendant no.1) transferring the property to
him.

The other 3 sons (Plaintiffs) contested the said transfer on
the ground that the compromise decree was supposed to be registered u/s. 17 of
the Registration Act, 1908, which was not done. Secondly, in view of section
15(2)(b) of the Hindu Succession Act, the property, after the death of
defendant no.2 (wife), would revert back to the legal heirs of her husband,
since the wife’s sister’s son would not even have the remote chance of
succession and only the successors of the Husband would be entitled to receive
the property in question.

The High Court held that the decree having purportedly
created a legal right in defendant no.2 for the first time. Defendant no.2 did
not have any pre-existing right in the property. The right created for the 1^st
time was of a value of more than Rs.100 and hence was legally required to be
registered, which was not done in the present case. Connectivity of Defendant
no.1 vis-a-vis defendant no.2 being sister’s son having no such remote
chance of succession to the property left by defendant no. 2 was also
established. Hence the order was passed in favour of the plaintiffs.

14. Power of Attorney – No existing
obligation nor any obligation created in favour of agent by the principal – Can
be revoked by principal even if the title suggests document to be irrevocable.
[Power of Attorney Act, (7 of1882, Section 2; Contract Act, (9 of 1872),
Section 202]

Siddareddy Venkatanagaraja Reddy vs. Shahamat Ali Khan AIR
2017 HYDERABAD 59.

The principal (defendant), in order to meet his necessities
and to discharge the liabilities, intended to sell dwelling units including
land apurtenant. The principal being pre-occupied, requested the General Power
of Attorney holder (GPA-Plaintiff) to act for him and on his behalf, to do all
the acts, deed and things necessary and as stipulated under the General Power
of Attorney.

However, the GPA nowhere mentioned that the same is supported by
consideration or with reciprocal remunerative obligation of anything incurred
by the agent. Section 201 of the Contract Act states that an agency is
terminated by the principal by revoking his authority, etc. Section 202
states that, if the agent himself has an interest in the property which forms
the subject matter of the agency, the agency cannot, in the absence of express
contract, be terminated to the prejudice of such interest.

BCAJ Admin

10

Agricultural Land –
Preferential rights of heirs over immovable property applies to agricultural
properties also [Hindu Succession Act, 1956, Sections 4, 14, 22]

Babu Ram vs. Santokh
Singh (deceased) through his L.R.s and Ors. AIR 2019, Supreme Court 1506

A dispute arose over the
question whether one of the heirs would have a preferential right over the
intestate property devolved upon them at the time of transferring such
property. Whether section 22 of the Hindu Succession Act, 1956 applies to
agricultural lands also?

Section 22 of the Act
provides that any immovable property of an intestate person, or any business
carried on by him or her, whether solely or in conjunction with others,
devolves upon two or more heirs specified in Class I of the Schedule, and if
any one of such heirs proposes to transfer his or her interest in the property
or business, the other heirs shall have a preferential right to acquire the
interest proposed to be transferred. However, the Act does not say anything in
the case of agricultural land.

It was observed that when
the Parliament thought of conferring the rights of succession in respect of
various properties, including agricultural holdings, it put a qualification on
the right to transfer to an outsider and gave preferential rights to the other
heirs with a designed object. Under the Shastric Law, the interest of a
coparcener would devolve by principles of survivorship to which an exception
was made by virtue of section 6 of the Act. If the conditions stipulated
therein were satisfied, the devolution of such interest of the deceased would
not go by survivorship but in accordance with the provisions of the Act. Since
the right itself in certain cases was created for the first time by the
provisions of the Act, it was thought fit to put a qualification so that the
properties belonging to the family would be held within the family, to the
extent possible, and no outsider would easily be planted in the family
properties. It is with this objective that a preferential right was conferred
upon the remaining heirs in case any of the heirs was desirous of transferring
his interest in the property that he received by way of succession under the Act.

In view of the above, it
was held that the preferential right given to an heir of a Hindu u/s. 22 of the
Act is applicable even if the property in question is agricultural land.

11

Co-operative Society – Premium for Transfer –
Supreme Court upholds the direction of the State Government putting a ceiling
limit of Rs. 25,000 on the premium charged by a society on transfer of a
property by a society’s member [Maharashtra Co-operative Societies Act, 1960;
Section 79A]

The New India
Co-operative Housing Society Ltd. vs. the State of Maharashtra and Anr., WP No.
4567 of 2007 (HC)(Bom), Dated: 01.02.2013

The New India
Co-operative Housing Society Ltd. vs. the State of Maharashtra and Anr., Civil
Appeal No. 10683/2017 (SC), Dated: 23.04.2019

The main ground in the
challenge was whether rejection of application of respondent No. 2 was valid on
the premise of non-payment of Rs. 2 crore as demanded by the society for the
purpose of transferring the property.

The said applications,
undisputedly, were made in the requisite form annexed to the Maharashtra
Co­operative Societies Rules, 1961, along with a demand draft of Rs. 25,000. It
was informed that on the face of it the application was not acceptable since
the transfer fee offered of Rs. 25,000 was inadequate in view of regulation 6A
of the society and the amount demanded was Rs. 2 crore.

The Hon’ble High Court in the case of Mont Blanc
Co­-operative Housing Society Limited vs. State of Maharashtra, 2007 (2) Bom.
C.R. 533 considered the validity of a similar government notification
dated 1^st August, 2001 issued u/s. 79A of the said Act thereby
imposing a ceiling of 10% of non­-occupation charges. The Court observed that
they were satisfied that the notification was issued to secure the proper management
of the business of the co-­operative housing societies in general and for
preventing the affairs of such societies being conducted in a manner
detrimental to the interests of the members of such societies. The order does
not suffer from the vice of arbitrariness and it cannot be termed as an unfair
or unjust act by the state government so as to deprive the societies of their
legal, just and proper levies. It is a bona fide exercise by the state
to avoid litigations / disputes and to bring in a uniform levy of
non­-occupancy and to prevent the exploitation of minority members. To bring in
an orderly situation, the government stepped in and exercised its statutory
powers u/s. 79A by issuing directions to levy non-­occupancy charges at 10% of
the service charges.

The Court observed that in
the present case also, the government vide notification dated 9^th
August, 2001 has directed uniform rates to be charged for effecting transfer of
the tenements / flats. Insofar as municipal corporations are concerned, the
premium has been determined as Rs. 25,000. It is to be noted that clause (2) of
the said notification specifically provides that the said charges are towards
transfer of a member’s tenement / flat and his share and rights in the share
capital / property in the said society. The perusal of the said notification
would reveal that it is applicable to all co­-operative housing societies. In
order to grab exorbitant sums of money from the new members who are trying to
become members of the society, they are being subjected to exploitation at the
hands of the society.

The Court held that the
petitioner was bound to comply with the directions issued by the state
government u/s. 79A of the said Act and could not have charged premium higher
than Rs. 25,000.

12

Environment – Duty of State as well as the
Citizens to prevent pollution and improve the environment [Constitution of
India; Article 21, 51-A]

Rajesh Madhukar Pandit
and Ors. vs. the Nashik Municipal Corporation and Ors. AIR 2019 (NOC)129 (Bom)

A PIL was filed concerning pollution of the Godavari
which is the second longest river in India after the Ganges. The Godavari is
one of the main sources of water supply to the city of Nashik. Several steps
are required to be taken for rejuvenation of the river and for preventing
pollution of the said river.

It was observed that the
scope of Article 21 of the Constitution of India gives a right to live in a
clean and pollution-free environment. Moreover, the right to have clean
drinking water is also a fundamental right guaranteed by Article 21. This is in
the context of the fact that the Godavari is a source of water supply to the
said corporation area and nearby villages. The right to live a dignified and
meaningful life is also an essential part of the bundle of rights guaranteed by
Article 21. If the rivers are polluted and pollution is created in and around
the rivers, the fundamental right of living a dignified and meaningful life of
the citizens is defeated. The fundamental right to live in a pollution-free atmosphere
is also violated.

Article 48A of the
Constitution of India is a Directive Principle of State Policy which enjoins
the State to protect and improve the environment. Clause (g) of Article 51A
casts a duty on the citizens to protect and improve the natural environment,
including forests, lakes, rivers and wild life, and to have compassion for
living creatures.

In view of the above, the
Court held that for protecting the fundamental rights of citizens under Article
21, the State is duty-bound to take all steps to prevent pollution of rivers
and to initiate measures for cleaning and rejuvenation of the rivers. It is the
obligation of the State to keep rivers clean and free from pollution. The
citizens owe a duty to protect and improve the environment, including rivers.

13

Notice – Service of notice
by ordinary Post – Dispatch register does not prove fact of service of notice
[General Clauses Act 1897, Section 27]

Agrofab vs. State of Rajasthan and Ors. AIR 2019 Rajasthan 34

The petitioner firm
contended that the showcause notice was never received by it.

The Court observed that the
respondents by way of additional affidavit tried to justify the service of the
said notice by producing a photocopy of the dispatch register and postage
register on record.

It was held that sending of
notice by showing any dispatch register through ordinary post does not prove
the fact of service of such notice on the petitioner firm. Further, it was held
that since the terms of the contract provided that rate contract and supply
orders and any discrepancy with regard to the conditions, specifications,
nomenclature, delivery period, etc., if the same were not as per the agreed
terms, conditions and specifications, such letter to the Direct Demanding
Officer and Chief Engineer was to be sent by registered post / AD. Hence, when
the communication is required to be made by the parties by way of registered
post / AD, the plea of the respondents that the showcause notice was sent by
ordinary post is not to be believed by the Court.

14

Will or Codicil attested
by a legatee as a witness – Examination of the legatee alone not valid [Indian
Succession Act, 1925, Sections 63, 67; Transfer of Property Act, 1882, Section
3; Indian Evidence Act, 1872, Section 68]

Raveendran Nair vs.
Raman Nair, AIR 2019 Kerala 91

The dispute concerned a
Will and its genuineness. There were two attesting witnesses to the Will. One
of the witnesses is the first defendant. The Will was executed in favour of the
children of the first defendant by giving a major portion of the property to
them and only a minor portion was given to other legatees.

The questions which arose
in the course of hearing were regarding the legal effect of an unprivileged
Will attested by the legatees alone left out by a Hindu. Whether the
examination of a legatee under a Will who is an attesting witness to the Will
or Codicil would be a sufficient compliance of the requirement as mandated u/s.
68 of the Indian Evidence Act?

The Court observed that
though there is no prohibition in the Act to stand as an attesting witness by a
legatee, the mandate both u/s. 63 of the Indian Succession Act and section 68
of Indian Evidence Act would convey the meaning that what is required is the
attestation by two or more witnesses, since the question of genuineness of
execution of a Will or Codicil would arise only after the death of the
testator. The attesting witness must have and should have the necessary animus
testandi or intention to attest the Will or Codicil. The word “attesting”
stands for something more than mere signing of a document as a witness.
Attestation means signing of a document with the intent and purpose to testify
the signature of the executant rather than mere witnessing the affixing of
signature by the executant or its due execution. Necessarily, the attesting
witness must display the necessary competence and the quality of an independent
witness. The word “attested” is defined u/s. 3 of the Transfer of Property Act
which is exactly pari materia with that of the third requirement as
enumerated in clause (c) of section 63 of the Indian Succession Act.

The Court held that a Will
or Codicil attested by legatees alone or the person interested with the
legatees who holds a fiduciary relationship with the legatee / legatees would
itself amount to suspicious circumstance attached to its execution. The absence
of an independent attesting witness to the document is fatal to the bequest
under the document. It would destroy the legislative intention demanding compliance
of mandate incorporated both u/s. 68 of the Indian Evidence Act and section 63
of the Indian Succession Act. The evidence or attestation of such witness would
stand as self-serving, though there is no provision debarring attestation by a
legatee as far as an unprivileged Will of a Hindu is concerned. At least one of
the attesting witness should be an independent witness and his examination
cannot be avoided if he is capable of giving evidence and amenable to the
process of the Court for proving the Will or Codicil in accordance with the
mandate u/s. 68 of the Evidence Act.

BCAJ Admin