Category: Allied Laws

The appellants were heirs of the original plaintiff Sonabai.
Sonabai’s husband Ganpatrao died leaving behind his son Motiram and two
daughters, namely, the appellants. Defendnat No. 1 was the widow of Motiram
while defendant no. 2 was daughter of defendant no. 1.

It was alleged that the suit property was the joint family
property left behind by Ganpatrao. The appellant submitted that there was no
partition of the suit property and as such they claimed one half share in the
suit property.

The defendant resisted the claim on the ground that soon
after the death of Motiram and his son, there was a partition and that the
appellants and defendants were cultivating and enjoying their separate share.

The learned Trial Judge held that there was already a
partition and the property did not continue to be joint. The learned Judge found
that the partition had taken place orally and subsequently in writing by
way of memorandum. The appeal was also dismissed.

In the instant case, it was not disputed that the suit
property was a joint family property. Where a document in respect of partition
comes into existence after the oral partition has already taken place, it will
neither require stamp nor registration. The partition deed would require
registration and stamp duty only if interest is created in specific property by
or under that document. If there is an oral partition, that oral partition
itself creates interest in that specific property and not the document which
comes into existence later. The document can be used for proving the severance
of status.

On account of the first respondent’s liability under a
security agreement in term of the SARFAESI Act, 2002, proceedings were initiated
by the petitioner u/s.13(2) of the Act. The petitioner, a secured creditor,
took symbolic possession of the property leaving the first respondent in de
facto physical possession. The property was brought to sale, sale
certificate was also issued in favour of the auction purchaser.

It is within the wisdom and freedom of the secured creditor
as to whether in a given case it would, in exercise of authority u/s. 13(4) take
over de jure and de facto possession at one go, or whether it
would let the secured debtor to continue to hold de facto possession
after taking over only de jure possession, by publication in accordance
with the Act and rules, to aid the secured creditor to proceed with the sale
u/s.13. It is not the requirement of S. 13(6) or any other provisions of the Act
that a transfer by a secured creditor after taking over possession would be only
after taking over actual possession, de facto. The right to take
possession u/s.13(4)(a) is provided in such wide terms that it gives fair room
for the secured creditor to decide whether it would first proceed only to take
de jure possession. At any rate, a secured debtor, continuing to hold
de facto possession on the ground of not having been dispossessed, would
only be one who had been given the advantage to continue to hold on de facto
possession for the time during which different steps would have followed,
resulting in the confirmation of sale in favour of a third party auction
purchaser. In absence of any jurisdictional requirement for de facto
possession to make a transfer in terms of S. 13(6), there is no legal or
jurisdictional error in the sale being held by the secured creditor on the
strength of de jure possession. Such a sale or transfer has the complete
support of S. 13(6).

[ Kottakkal Co-op. Urban Bank v. T. Balakrishnan & Anr., AIR 2008
Kerala 179]

The petitioner’s husband made deposits in multiple accounts
in post office monthly income scheme by opening 12 accounts. Subsequently the
accounts were converted into joint accounts. None of the post office staff
informed the petitioner that one should not invest beyond a certain amount in
joint a/c. In fact agents of post office persuaded the petitioner and her
husband to invest the amounts. When the petitioner asked for payment of the
amounts on maturity of the deposits the respondent deducted the interest amount
over and above the limit provided under the Post Office Monthly Scheme Rules.

The Court observed that it is an undisputed fact that the
petitioner has deposited different amounts into various accounts and none of
those accounts has exceeded the prescribed deposit limit. The first respondent
noticed that all the accounts were opened in the name of a single depositor in
various post offices and the amount put together exceeded the maximum amount
prescribed under the rules. Though the rules prescribed that more than two
accounts shall not be opened by any person, it was a mistake on the part of the
post master also in allowing the petitioner to open more accounts contrary to
the rules.

The petitioner contended that the agents who get com-mission
also made the petitioner and her husband to believe that there will not be any
problem if they open more accounts and they will also get interest on all the
accounts without any objection. Had there been any objection at the time of
opening of accounts or obtaining a declaration from the depositor that the
depositor did not open more than two accounts in any post office, that would
have made the petitioner and her husband to bind themselves that they have
knowledge about the rule that they should not open more accounts than two. There
was a mistake on the part of the post master also in allowing the petitioner to
open more accounts in the name of the petitioner and her husband. Therefore, as
the deposits were not made intentionally after knowing the rules, the petitioner
cannot be deprived of the interest accrued thereon.

The petitioner is entitled for interest on the entire amount
kept in the various post offices.