A. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Collusive proceedings -- Principle of lis pendens – Finding that Section 52 of the Transfer of Property Act dealing with doctrine of lis pendens is not applicable as proceedings were collusive in nature, upheld.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 67, 68, 217 – Probate of Will – Consent of parties – Observation that until and unless the Will is proved, no grant of probate can be made merely by the consent of the parties, upheld.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rules 1 and 2 – Temporary injunction -- Photographs to show the possession of the plaintiff-petitioners is wholly misplaced as photographs can never be proof of possession.

(Para 1, 5)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Onus to proof -- It is trite law that once the title of the property has been upheld namely a finding has been recorded by a judgment and decree in the name of plaintiff in an earlier suit, in such circumstances, the onus to prove acquisition by adverse possession lay on the defendant.

(Para 7)

Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983, Rule 4, 8, 12 -- Constitution of India, Article 14, 226 -- Discretionary quota plot – Direction by High Court to allot – Challenge to -- Allotment of residential plots under discretionary quota declared illegal by Full Bench.

Letter dated 11.02.1987 stated that the Government had merely approved the allotment of a residential plot admeasuring 500 square yards and directed the Trust to allot an identified plot to respondent under Rule 4 of the Rules of 1983 -- Therefore, the act of identifying and allotting a specific plot was to be undertaken by the Trust -- Allotment of an identified plot in favour of respondent did not crystallize by the date of the Full Bench judgment in the year 2003 and remained stagnant at the stage of the Government’s approval.

Directions issued by High Court to allot plot contrary to the said Full Bench judgment, which practically stood affirmed by Supreme Court, cannot now be accepted or acted upon -- Civil appeal allowed, the impugned orders by the High Court set aside.

(Para 7-19)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Power of attorney – Readiness and willingness -- Power of attorney executed on 28.02.2001 and the agreement to sell is dated 27.03.1998 – Power of attorney holder who stepped into the witness box on behalf of the plaintiff-appellant was not competent to depose qua acts done by the principal -- The only person competent to have deposed qua the readiness and willingness could have been the plaintiff-respondent who preferred not to step into the witness box -- In the absence of evidence qua readiness and willingness, the suit for specific performance could not have been decreed -- Judgments and decrees of the Courts below are erroneous -- Suit for specific performance of agreement to sell dismissed -- Defendant-appellant to refund Rs.11,00,000/- along with interest @ 6% per annum to the plaintiff-respondent from the date of the agreement to sell till payment.

(Para 12-15)

Registration Act, 1908 (16 of 1908), Section 17(1)(g) (as amended by Tamil Nadu Amendment Act No.29 of 2012), 17(1A), 49 -- Suit for specific performance – Unregistered agreement to sell – Admissible in evidence -- Section 17(1)(g) of the Registration Act made agreement to sale of immovable property of the value of Rs.100/- and upwards compulsorily registrable – No corresponding amendment made to Section 49 of the Registration Act – Held, unregistered document may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act -- High Court rightly observed and held that the unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49.

(Para 5-13)

Delhi Co-operative Society Rules, 1973, Rule 36(2) – Allotment of Flat to Society member – Non-payment of due amount -- Expulsion of Membership – High Court upheld the order for expulsion of membership -- Challenge to – Ground that prescribed procedure for expulsion of a society member has not been followed – Held, procedural law is subservient to justice -- Only issue is regarding default of payment of dues of the society for construction of flats, which the late husband of appellant no.1 was not ready and willing to pay at any stage, despite opportunities given, firstly by the Society, secondly by the Joint Registrar (II), Cooperative Societies and thereafter by the Financial Commissioner -- Even before the High Court, at the time of issuance of notice, the statement of late husband of appellant no.1 was that he is ready and willing to deposit the amount due with interest but still nothing was paid – Appeal dismissed.

(Para 8-9)

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 23-A – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13 -- Consolidation proceedings – Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad -- Vesting of – Suit lands became reserved for the common purposes, of the panchayat deh for the benefit of the entire village proprietary body -- Finalized consolidation scheme remained unchallenged nor is challengeable at this belated stage -- Cultivating possession of such lands outside the domain of their permissible lawful title thereons – Held, petitioners do not hold any valid title thereto, either as owners or as individual cultivators.

(Para 4, 5)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – No evidence by defendant No.2-appellant to prove that her possession was nec vi, nec clam, nec precario, i.e. peaceful, open and continuous -- A person seeking to establish his adverse possession has to show that his possession is adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner -- It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period – Defendant No.2-appellant failed to lead any substantial evidence to prove her plea of adverse possession -- Appeal dismissed.

(Para 7)

A. Agricultural Marketing Board -- Allotment of site in market area – Right of Licensee -- To do business in the shop and to carry on business on the auction platform, are both different and distinct -- Merely because a person is having a licence and doing business in a particular shop, he is not entitled to the auction platform as a matter of right and that too, in front of and/or adjacent to his shop -- No such rule and/or regulation and/or guideline supporting such a claim brought to the notice of the Court –Petition/ Appeal dismissed.

(Para 6.6, 8)

B. Agricultural Marketing Board -- Allotment of preferential site in market area -- Right of -- Appellant is claiming shed/auction platform which is just adjacent to and/or in front of shop No. 27 and/or at any other place -- Appellant is to be treated at par and equally with other persons doing business in the market and on the auction platform -- In absence of any specific rule/regulation to the contrary and when the allotment of the sheds is made as per the principles/guidelines of the Secretary, Agriculture, and in absence of any specific rule in favour of appellant(s), right to claim the allotment just in front of his shop and/or adjacent to the same and when the allotment in favour of respondent No. 5 is made as per the policy and guidelines, both the learned Single Judge and Division Bench of the High Court have rightly held against the appellant and have rightly dismissed the writ petition(s) and appeal(s) – Appeal dismissed.

(Para 6.1-6.5, 7, 8)

Specific Relief Act, 1963 (47 of 1963), Section 28 -- Code of Civil Procedure, 1908 (V of 1908), Section 148 -- Ex-parte decree for specific performance of agreement – Non-deposit of balance consideration -- Delay of 853 days in moving application for extension of time -- Rs. 8,00,000/- was paid as advance, balance sale consideration of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff under the ex-parte judgment and decree dated 12.10.2013, within two weeks from the said date – Application u/s 148 CPC and Section 28 of the Specific Relief Act on 7.6.2017/19.06.2017 with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration – Power u/s 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require -- Trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which has not been explained sufficiently at all – However, at the same time, to strike the balance between the parties the amount of Rs. 8,00,000/- paid by the plaintiff as an advance is to be returned to the plaintiff with 12% interest per annum from 9.5.2012 till the actual payment, within a period of six weeks from today, failing which it shall carry interest @ 18% per annum.

(Para 5-8)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32 -- Decree for permanent injunction – Execution of – Warrant of possession – Permissibility of -- Defendants were restrained from demolishing the Rasta/Gohar in illegal and forcibly manner – Executing court was to ensure that the rasta was made available to the plaintiff without any obstruction and not to deliver possession of Rasta/Gohar to the decree holder/plaintiff – Warrant of possession by Executing Court, order is not sustainable, set aside -- Trial Court directed to proceed in light of Order 21 Rule 32 CPC.

(Para 10)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction -- Planted/ nourished trees by State – Right of landowner upon trees – Once it is found that the plaintiff/respondents are the owners of the land it follows that the trees growing/standing thereon belong to them.

(Para 14)

Haryana Special Economic Zone Act, 2005 (9 of 2006), Section 11 – Indian Stamp Act, 1899 (2 of 1899), Section 3(3), 49, 54 – Constitution of India, Article 265 -- Special Economic Zone – Exemption from stamp duty – Refund of stamp duty -- Stamp duty collected from respondent No.7 while registering the lease deed of plot situated in SEZ whereas charging of stamp duty in such a case is specifically exempted u/s 3(3) of the Indian Stamp Act and Section 11 of the SEZ Act – Held, and once the said instrument is exempted, charging of stamp duty for purposes of registration is without any authority of law and, therefore, would be violative of Article 265 of the Constitution of India – Action of the respondents No.1 to 6 in charging of stamp duty and thereafter illegally retaining the same is contrary to the provisions of law -- In case the stamp duty is not refunded, said respondent is held entitled of the same along with interest @ 7% per annum from the date, the same was deposited till the said amount is refunded.

(Para 11-12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Suit for declaration and mandatory injunction – Grant of temporary Injunction against co-sharer -- Electricity connection existing in the joint land, originally in the name of common ancestor -- Mandatory injunction sought to retransfer the said connection in the name of plaintiffs and other co-sharers of land -- Temporary injunction granted by the trial Court only facilitates its joint use -- Discretion vested in the trial Court has been validly exercised on sound principles of law by granting the temporary injunction.

(Para 1-2, 10-13)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Limitation Act, 1963 (36 of 1963), Article 65, 113 -- Suit for declaration and possession -- Limitation – Limitation to file a suit for possession on the basis of title is twelve years -- Declaratory relief for title of the property is sine qua non for seeking possession over it -- The former, therefore, cannot be held to take away the essential characteristics of a suit for possession -- One of the reliefs sought of declaration will not mean that the prescribed period of limitation will not be applicable.

(Para 2, 8-10)

Indian Contract Act, 1872 (9 of 1872), Section 202 -- Sale deed by Power of attorney after death of Principal – Legality of -- Allotee/ Principal received stated to receive Demand draft and cash – Court not find any merit in the argument that the agency would lapse after the death of the principal -- It has been specified in Section 202 of the Indian Contract Act, 1872 that the agency where the agent has an interest in the subject matter cannot be terminated either by insanity or at the death of the principal.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 39 Rule 1 & 2 -- Suit for specific performance -- Rejection of plaint -- Agreement to sell dated 24.01.2001 -- No date or period has been fixed for performance of the agreement or for execution of sale deed – After the death of vendor, defendant first time on 08.11.2021 by way of reply to the notice denied from the agreement -- Plaintiff claiming himself to be in possession of the disputed land, has also prayed relief of permanent injunction restraining the defendants from making interference in possession of the plaintiff -- At the present stage of suit, the plaint cannot be rejected under Order 7 Rule 11(d) CPC.

(Para 7, 8)

A. Transfer of Property Act, 1882 (4 of 1882), Section 51 – Ownership -- Encroachment – Transferee -- Encroacher cannot be treated as a ‘transferee’ within the meaning of the TP Act and seek benefit of Section 51 -- He cannot legally require the respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements.

(Para 11)

B. Transfer of Property Act, 1882 (4 of 1882), Section 51 – Suit for possession against encroacher -- Once plaintiff establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will.

(Para 21)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction from raising construction in the suit land which will cause irreparable damage -- Suit land is shared jointly by the appellant/ plaintiff and not partitioned – In the suit, the nature of construction, which is being carried out by the respondents, has not been set out -- Suit has rightly been dismissed by the Courts below as nothing has come on record which would indicate that the respondents are carrying out any construction which would endanger the land and cause irreparable damage.

(Para 4, 5)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Agreement to sell – Suit for specific performance after 18 years -- Entire sale consideration stood paid at the time of entering into the agreement to sell in 1994 -- Suit for specific performance in the year 2012 -- It does not sound to reason as to why somebody, who is alleged to have paid the entire sale consideration in the year 1994 at the time of agreement to sell itself, would wait till 2012 to file the suit – Suit dismissed.

(Para 2-7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 4 – Cancellation of allotment of flat – Refund of amount -- Denial to receive Pay order -- Complainant cannot claim interest from the developer, who had returned the Pay Order -- Complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail.

(Para 32-34)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 4 – Deposit made in Judicial Forums, Tribunal, Court, Authority, Agency etc. – Directions issued to frame rules -- All courts and judicial forums should frame guidelines in cases where amounts are deposited with the office / registry of the court / tribunal, that such amounts should mandatorily be deposited in a bank or some financial institution, to ensure that no loss is caused in the future -- Such guidelines should also cover situations where the concerned litigant merely files the instrument (Pay Order, Demand Draft, Banker’s Cheque, etc.) without seeking any order -- These guidelines should be embodied in the form of appropriate rules, or regulations of each court, tribunal, commission, authority, agency, etc. exercising adjudicatory power.

(Para 35)

A. Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Self-acquired property – Spes successonis – Heir apparent -- Right of -- A chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or other mere possibility of a like nature cannot be transferred -- A living man has no heir -- Equally, a person who may become the heir and entitled to succeed under the law upon the death of his relative would not have any right until succession to the estate is opened up -- Unlike a co-parcener who acquires right to joint family property by his mere birth, in regard to the separate property of the Hindu, no such right exists.

(Para 10)

B. Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Spes successonis – Heir apparent -- Release deed by heir apparent -- Transfer by an heir apparent being mere spes successonis is ineffective.

(Para 14)

C. Transfer of Property Act, 1882 (4 of 1882), Section 6 – Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8(a) -- Release deed by heir apparent/ spes successonis – Estopple -- Despite the fact that what was purported to be released by father of appellant was a mere spec successonis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel -- Effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel.

(Para 23)

Code of Civil Procedure, 1908 (V of 1908), Order 6 -- Pleadings – Agreement to sell – Fraud alleged – Suit for specific performance decreed by Trial Court and lower Appellate Court -- Agreement to sell attested by three attesting witnesses, who deposed in favour of the plaintiff-respondent – No evidence to the contrary – Defendant-appellant himself in cross-examination admitted the execution of the agreement to sell, his signatures as well as photograph on it and admitted his signatures on both pages of the stamp-paper – An ambiguous statement cannot per se make a document fraudulent – It is trite that a person raising the plea of fraud needs to plead and prove its ingredients – Using the word fraud/fraudulent without any material particulars would not tantamount to pleading of fraud -- Regular second appeal being devoid of any merit, dismissed.

(Para 8-10)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Agreement to sell – Suit for specific performance – Part performance -- There can be no hindrance in granting the decree for specific performance of the agreement with respect to the suit property to the extent of the three defendants’ share in it, i.e., 1/4th each.

(Para 15)

Powers of Attorney Act, 1882 (7 of 1882), Section 3 -- Registration Act, 1908 (16 of 1908), Section 17 -- Cancellation of power of attorney – Sale by attorney holder – Effect of -- In the absence of notice of cancellation of power of attorney either to the attorney or to the purchaser of termination of the agent’s authority, the validity of sale deed executed by the agent would not be affected.

(Para 4-5)

Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 4, 5, 7 --  Constitution of India, Article 226, 227 -- Eviction from Jumla Mushtarka Malkan land – Dismissal of Gram Panchayat petition – Appeal also dismissed -- Appellate Authority while passing impugned order ignored the relevant record and material documents presented before it and not adverted to the arguments raised before it – Order set aside and the matter remitted to the Joint Development Commissioner (I.R.D), to decide the same afresh after affording due opportunity of hearing to all concerned and taking into consideration the entire relevant record and aspects.

(Para 15, 16)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction -- Demarcation report – Absence of opposite party -- Report of the Naib Tehsildar sought to be relied upon by the plaintiff-appellant would be of no avail inasmuch as it has come in evidence that the said demarcation was done in the absence of the defendant-respondents.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Specific Relief Act, 1963 (47 of 1963), Section 16 -- Execution of decree for specific performance -- Delay in deposit balance sale consideration – Ground of -- Decree for executing the sale deed within a period of three months from the date of the judgment/decree 01.02.2011 -- Interim stay vacated only with dismissal of appeal on 24.12.2013 -- Decree holders filed the execution application, dated 25.01.2014, along with an application to deposit the balance sale consideration -- No specific order to deposit the balance sale consideration was passed on that application -- Judgment debtor’s application for rescission of the agreement to sell was finally dismissed by the Court on 04.04.2022 -- Thereupon, the objections were also dismissed by the impugned order, dated 12.07.2022, allowing the decree holders to deposit the balance sale consideration, which was accordingly deposited by them soon thereafter on 20.07.2022 – Held, it cannot be said there was any delay or failure on the part of decree holders in seeking execution of the decree in question – Therefore, the decree in question is executable, and the Executing Court has validly permitted deposit of balance sale consideration.

(Para 10-13)

A. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- A person in permissible possession over the suit land cannot become owner only on the basis of long possession -- However, in case the said person starts proclaiming to be owner to the knowledge of the true owner, even if his possession in the beginning was permissive, it will become adverse, the moment he starts proclaiming to be in hostile possession.

(Para 25)

B. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- Sale by attorney when owner already died – Moment the sale deeds in favour of defendants executed by the attorney of the owner, became null and void, on account of the fact that owner had already expired, the possession of the defendants became hostile, as they no longer could be stated to be in permissive possession on the basis of the prior mortgage -- Defendants were still continuing to be in possession on the basis of these null & void sale deeds, they perfected their title on the expiry of statutory period of limitation, as their possession was open, continuous, hostile and adverse to the title to the true owners/natural heirs owner.

(Para 26)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Readiness and willingness – In the legal notice, the plaintiff asked the defendant to receive the balance amount and execute the sale deed – In reply, defendant denied the execution of agreement to sell itself – In suit for specific performance it was specifically averred that he was ready and willing to perform the agreement – In his deposition, the plaintiff specifically stated that he was ready and willing to perform his obligations – He further stated that he approached the defendant in the month of June, 2007 and again in July, 2007 with the balance sale consideration – There is no cross-examination in this regard – Plaintiff also examined two witnesses, who were attestors to agreement to sell dated 13.03.2007, who specifically stated that in July, 2007, the plaintiff approached the defendants and asked them to accept the balance sale consideration in cash, to that also there is no cross-examination – Receipt of Rs. 3 lakhs by way of earnest money, has been held to be proved by both the courts below – Within a period of one month from passing of the decree, the plaintiff deposited the balance sale consideration i.e., Rs. 9,74,000/- before the learned Trial Court --  High Court has materially erred in reversing the decree and by reversing the findings of the Trial Court on readiness and willingness of the appellant.

(Para 6)

B. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Readiness and willingness – Necessity of passbook -- Unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.

(Para 6.2)

C. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Additional amount other than agreement -- Suit decreed -- Agreement to sell dated 13.03.2007 in favour of the appellant/ plaintiff – Sale consideration fixed at Rs. 12,74,000/- -- Rs. 3 lacs paid at the time of agreement – Rs. 9,74,000/- deposited before the Trial Court after decree -- To do complete justice, plaintiff directed to pay a further sum of Rs. 10 lakhs and on such payment, defendant No. 1 is directed to execute the sale deed in favour of the original plaintiff-appellant.

(Para 2-2.2, 8)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 39 -- Rejection of plaint -- Ad-valorem court fees -- Suit for declaration that the plaintiff-petitioners were entitled to get the respective sale agreements executed in their favour as well as for mandatory injunction and permanent injunction -- By impugned order Trial Court directed the plaintiff-petitioners to affix the ad valorem court fees treating it a suit for specific performance and for possession – Held, court fees is a matter between the plaintiff and the Court and in case at the time of final adjudication if the court fees is found to be deficit, the plaintiff-petitioners can always be asked to make good the court fees -- However, the case cannot be treated as a suit for specific performance at this stage -- Impugned order set aside.

(Para 2-6)

Specific Relief Act, 1963 (47 of 1963), Section 20 – Agreement to sell – Increase in price -- Contention that due to increase in price, hardship will be caused in case relief of specific performance is granted, has no merit -- No steps taken to get his share partitioned from other co-sharers; enjoyed major part of sale consideration i.e. Rs.7,99,500/- out of Rs.8 Lacs; and did not even deliver possession vendee-plaintiff of his share -- Even denied the execution of the agreement to sell, which found to be false by both the courts below – Learned First Appellate Court has rightly held respondent-plaintiff entitled to the relief of specific performance – Appeal dismissed.

(Para 30, 31)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 20 -- Suit for specific performance of agreement to sell – Subsequent purchaser as party – It is in the interest of the plaintiff if the subsequent vendee is impleaded as a party so as to enable the Court to pass a comprehensive decree directing the subsequent vendee to join in the execution of the sale deed if the suit is decreed -- Subsequent vendee has a right of hearing and he is alleging that the original defendants are colluding with the plaintiff – Order permitting the purchaser to be impleaded as party upheld.

(Para 1, 4, 5)

Specific Relief Act, 1963 (47 of 1963), Section 10, 15, 19(b) – Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Agreement to sell – Sale deed by Vendor in favour of third party – Subsequently suit for Specific performance --  Suit decreed – Execution of decree -- Held, once, by virtue of judgment and decree, it was proved on record that the agreement to sell was validly executed, any subsequent alienation/sale deed always governed and regulated by the rights conferred upon the petitioner-plaintiff under the agreement to sell – In the absence of objections by the purchaser from the respondent/judgment debtor, the executing court exceeded its jurisdiction while rendering the execution proceedings being infructuous -- The only protection to the persons having purchased suit property subsequent to execution of agreement to sell has been provided under Section 19(b) of the Specific Relief Act, 1963 -- Nothing on record to suggest that the subsequent transferee ever approached the executing court, invoking his rights under Section 19(b) of the 1963 Act – Impugned order set aside -- Executing Court directed to proceed with the execution proceedings based on the judgment and decree.

(Para 6-10)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- Ex-parte proceedings -- It is categorically mentioned in the impugned order itself that several notices were sent to the petitioner and despite that; the petitioner had chosen not to appear before the authority to contest the proceedings -- Petitioner cannot take a somersault and start questioning the validity of the said order – Nothing wrong, petitioner being proceeded ex parte.

(Para 4)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- House in lal dora – Eviction of son -- Petitioner/ son not purchased or acquired house by transfer of ownership – Parents of the petitioner had come in the world prior to the petitioner, therefore, if there is any ownership of the house within the family of the petitioner and the respondents, then obviously, it has to be with the parents of the petitioner – Senior citizen is entitled to protect any interest in property.

(Para 4)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- Eviction of son -- Possession of parents -- Even if the parents were not the recorded owners, still, they can protect their possession – Petitioner/ son not pleaded that the house in question was either constructed or created by him -- Positive case of the respondents-parents gone uncontested, that they are the owner of the house in question -- If the petitioner is not having any other accommodation under his ownership then it is for him to arrange for another accommodation for himself -- For the convenience of the petitioner, the parents cannot be deprived of their right to live in their residential house.

(Para 4)

Code of Civil Procedure, 1908 (V of 1908), Section 60, Order 21 Rule 64  -- Transfer of Property Act, 1882 (4 of 1882), Section 53 -- Attachment of property – Property transferred in favour of son by lease deed by Judgment debtor – Lease deed is dated 20.2.2014 just before passing of the decree on 1.5.2014 – Executing court dismissed the application without adverting to provisions of Section 53 of the Act – Impugned order set aside, matter remanded back to the Executing Court for afresh adjudication by taking into consideration provisions of Section 53 of the Act and all other relevant material.

(Para 1-4)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Readiness and willingness -- High Court non-suited the appellant-original plaintiff on the ground that as the post-dated cheque of Rs. 35 lakhs was returned which was towards part sale consideration and tendering the worthless post-dated cheque cannot be said to be tendering the payment and therefore, there was no concluded contract between the parties -- By observing so, the High Court has refused to go into the aspect of the readiness and willingness on the part of the plaintiff – Held, at the time when the post-dated cheque of Rs. 35 lakhs was tendered the same cannot be said to be worthless cheque -- Post-dated cheque of Rs. 35 lakhs returned by the bank was with an endorsement i.e., “payment stopped by attachment order” as there was a raid conducted by the IT Department and the bank account was attached and therefore, the post-dated cheque was returned -- Therefore, the observation made by the High Court cannot be accepted.

(Para 4)

B. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Readiness and willingness – Framing of issue -- There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice -- The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same -- On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff.

(Para 4.1)

Specific Relief Act, 1963 (47 of 1963), Section 36, 37 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Injunction simplicitor – Maintainability of -- Ratio of the judgment passed in Anathula Sudhakar’s case, Civil Appeal No.6191 of 2001, dated 25.03.2008 passed by the Supreme Court is that the relief of injunction simplicitor cannot be sought by a person whose title over the property is in dispute -- Plaintiffs’ title over the suit property was not in dispute, though the defendants made a deplorable attempt to dispute the same by concealing relevant facts from the Court – Therefore, the defendants cannot raise any plea based upon the judgment.

(Para 10)

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will – Suspicious circumstances – Burden to prove -- Mere proving of a Will does not establish the same to be valid in law, in case the same is surrounded by suspicious circumstances -- The beneficiary is not only required to discharge his burden to prove the Will; but is also to satisfy the conscious of the Court that there are no suspicious circumstances or if there are any, to explain them is also on the propounder of the Will -- It is only when such responsibility is discharged by the beneficiary, the Court can accept the Will to be genuine.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- It is settled proposition of law that mere exclusion or dis-heritance of a natural heir while executing a Will is not to be taken as a suspicious circumstance as the very purpose of execution of a Will is to divert from the line of natural succession -- However, it has also been settled and expounded upon by the Hon’ble Supreme Court in catena of judgments that any unnatural, improbable or unfair disposition made in the Will has to be considered as a suspicious circumstance.

(Para 9)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- Respondent happened to be the legally wedded wife of deceased, neither the testator has recorded the factum of his marriage with the respondent in the Will; nor even her name has been mentioned therein -- More than that, no provision has even been made for her maintenance particularly under the circumstances wherein it has been established/ proved on record that the relationship between the husband and wife remained amicable throughout – From cumulative effect of the aforesaid facts and circumstances, one can easily see through that the testator’s mind was not free at the time of making disposition of Will.

(Para 9-14)

A. Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952), Section 8-A -- Chandigarh Leasehold of Sites and Building Rules, 1973, Rule 20 -- Cancellation of allotment of plot -- Affidavit of not owning of any other plot or dwelling unit -- Petitioner allotted a dwelling unit after her declaration to the Society -- No valid ground to cancel her allotment.

(Para 12)

B. Capital of Punjab (Development and Regulation) Act, 1952 (27 of 1952), Section 8-A -- Chandigarh Leasehold of Sites and Building Rules, 1973, Rule 20 -- Power of attorney – Cancellation of allotment of plot – Transferring the lease hold rights in the property to attorney before the expiry of 15 years in violation of the condition no. 15 of the allotment letter -- Petitioner denied such transfer to her attorney -- She asserted that she was settled in USA and therefore, she had executed a power of attorney in favour of her friend for the proper management of the site/unit – No registered assignment of lease hold rights in favour of her attorney on record -- In the absence thereof it is difficult to come to a conclusion about the factum of transfer -- Cancellation order was passed more than twenty eight years after the allotment -- Cancellation on this ground would not be justified -- Petition allowed, impugned orders quashed.

(Para 13, 14)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Multiple cause of action – Civil suit – Limitation -- Suit can be filed within three years from the accrual of the initial cause of action, however, any successive violation of rights after institution of the suit would not give fresh cause of action to file a suit -- If the suit is based on multiple causes of action, the period of limitation would commence from the date when the right to sue first accrued.

(Para 13)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 44 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 – Consolidation proceedings -- Jurisdiction of civil court -- Consolidation Authorities allotted 15 kanal 5 marla land of lesser value to the defendant as per his entitlement in lieu of 7 kanal 12 marla of standard land during consolidation -- Plaintiff till date has not challenged the order of Consolidation Authorities -- In case, the plaintiff was aggrieved by any such order, he should have challenged it before the authorities empowered under the Consolidation Act, which admittedly was not done -- Jurisdiction of the Civil Court barred -- Civil Court cannot derive jurisdiction beyond the statute by merely giving it a colour for a suit of declaration.

(Para 15)

C. Haryana Land Revenue Act, 1887 (XVII of 1887), Section 34, 44 -- Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Mutation – Jurisdiction of civil Court -- Mutation is only entered to update the revenue records and it not being a document of title does not confer any right on any person whatsoever -- Correctness of mutation cannot be challenged by plaintiff in a civil suit.

(Para 16)

D. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Specific Relief Act, 1963 (47 of 1963), Section 34 -- Maintainability of suit for simplicitor declaration -- If the plaintiff is not in possession of the suit land, he cannot file a simpliciter suit for declaration and injunction without claiming possession thereof.

(Para 20)

Specific Relief Act, 1963 (47 of 1963), Sections 10, 16 (c), 20, 21, 22, 23 – Specific performance of agreement – Alternative relief of refund -- Agreement of sale provided that in the event the permission was not obtained within 75 days, the purchaser shall be entitled to get back his advance money paid after 75 days but not later than 90 days under any circumstances – Defendant/ owner terminated the agreement on 12th April 1982 stating therein that permission from the ULC Authorities could not be obtained – Plaintiff/ Purchaser did not take any step till 19th February 1984 -- Only after the ULC permission was granted on 7th February 1984, the plaintiff had issued a legal notice to the defendant on 19th February 1984 – High Court denied the relief for specific performance to the plaintiff, it has directed the respondents-defendants to refund the advance amount of Rs.15,000/- along with accrued interest or a sum of Rs.3,00,000/- in all – Defendant had, in fact, received an amount of Rs.15,000/- as early as 1978, Supreme Court directed the respondents-defendants to pay an amount of Rs.15,00,000/- to the appellants-plaintiffs within a period of 3 months.

(Para 13-16)

Registration Act, 1908 (16 of 1908), Section 17 – Specific Relief Act, 1963 (47 of 1963), Section 37 -- Unregistered agreement to sell on ten rupees stamp paper – Admissibility of -- Suit for permanent injunction -- Counter-claim seeking possession -- Unregistered document/agreement to sell shall not be admissible in evidence -- Plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/ agreement to sell, no decree for specific performance could have been passed -- Plaintiff cannot get the relief by clever drafting -- Suit dismissed and the counter-claim filed by the original defendant allowed.

(Para 5-9)

Specific Relief Act, 1963 (47 of 1963), Section 39 -- Right of owner to have possession – Licensee in possession – Remedy of -- Licensor can always seek possession by filing a suit for mandatory injunction -- Only caveat to this is that the owner has to file the suit for possession with promptitude i.e. within reasonable time – Plaintiffs purchased the suit property from respondent No.4/ defendant No.5 vide a registered sale deed dated 8.6.2011 – As per the pleadings, appellants sought 4-5 months’ time to vacate the premises -- However, once, the appellants did not vacate the premises, the suit was promptly filed by respondents No.1 to 3 on 10.10.2013 -- Appellants failed to prove any right, title or interest in the suit property, their status can at best be treated as licensee in the premises in question -- Time period taken by respondents No.1 to 3 in filing the suit for mandatory injunction appears to be reasonable.

(Para 8, 9)

A. Hindu Succession Act, 1956 (30 of 1956), Section 4(2) – Delhi Land Reforms Act, 1954 (8 of 1954), Section 50(a) – Constitution of India, Article 254 – Challenge to Section 50(a) of Delhi Reforms Act, 1954 – Repugnancy in two Acts -- Concurrent list III -- Question of repugnancy would not come into existence unless it is first established that both enactments are under the Concurrent list (List III) – 1954 Act is not referable to any matter enumerated in List III but it is referable to Entry 18 of List II -- Thus, no question of repugnancy would arise in view of Article 254 of the Constitution.

(Para 18, 19)

B. Hindu Succession Act, 1956 (30 of 1956), Section 4(2) – General Clauses Act, 1897 (10 of 1897), Section 6(b) (c) -- Repeal of Section 4(2) of Hindu Succession Act, 1956 – Prospective effect -- Deletion of Section 4(2) took place w.e.f 09.09.2005 therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005 -- This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued.

(Para 23-25)

C. Hindu Succession Act, 1956 (30 of 1956), Section 4(2) – Delhi Land Reforms Act, 1954 (8 of 1954), Section 50(a) – Repeal of Section 4(2) of Hindu Succession Act, 1956 w.e.f. 09.09.2005 – Prospective effect -- Property in question is agricultural property, and therefore, in 1997 on death, the devolution of interest (inheritance) would be determinable on the said date, in accordance with the law existing at that time -- Subsequent deletion would not have any impact on the rights of inheritance, which had already accrued and crystallised, prior to the amendment -- Even existence of Section 4(2) in the 1956 Act and its deletion will not have any impact for the reason that the 1954 Act, is a special law, dealing with fragmentation, ceiling, and devolution of tenancy rights over agricultural holdings only, whereas the 1956 Act is a general law, providing for succession to a Hindu by religion as stated in Section 2 thereof -- Existence or absence of Section 4(2) in the 1956 Act would be immaterial.

(Para 21-26)

D. Delhi Land Reforms Act, 1954 (8 of 1954), Section 50(a) – Constitution of India, Article 14, 15, 21, 254 – Challenge to Section 50(a) of Delhi Reforms Act, 1954 -- Gender bias/ women empowerment  -- There can be no challenge to the 1954 Act as the said legislation is included in the Ninth Schedule of the Constitution of India.

(Para 28)

E. Amendment in statute -- Prospective effect -- It is well settled that all amendments are deemed to apply prospectively unless expressly specified to apply retrospectively or intended to have been done so by the legislature.

(Para 23)

Constitution of India, Article 226 -- Rajasthan Special Assistance to Disabled Ex-Servicemen and Dependants of Deceased Defence Personnel (Allotment of Lands) Rules, 1963, Rules 2(a), 3, 6, 7 -- Allotment of land to Disabled ex-serviceman – Right of – Internal departmental communication – Reliance upon -- Letter written by the Secretary of the Soldier Welfare Department to the District Collector, on 19.03.1971 for allotment of land -- Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled – Held, firstly, the inter-departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment -- Alternatively, even if it is considered to be a letter of allotment, the writ petitioner could not claim possession on the basis of such communication after more than 30 years in terms of the Rules applicable for allotment of land to the disabled ex-servicemen -- Disabled ex-serviceman had not taken any action for almost 27 years after the so-called letter of allotment during his life time – Writ petition filed by the writ petitioner is wholly misconceived, mischievous with collateral motives -- High Court had gone out of the way to order possession of land which was never proceeded with letter of allotment in favour of the writ petitioner -- Appeal allowed, order passed by the High Court set aside.

(Para 13-18)

Specific Relief Act, 1963 (47 of 1963), Sections 10, 16 (c), 20, 21, 22, 23 -- Suit for specific performance of contract – Alternative relief of refund -- Agreement to sell for two properties – Soon after, plaintiff came to know that defendant was likely to assign the properties to third parties, filed application for temporary injunction, thereafter, communicated his interest to pay balance sale consideration and requested for execution of sale deed -- Request denied by defendant -- Suit filed for specific performance decreed by Trial Court – Division Bench of High Court instead of decreeing the suit for specific performance allowed the alternative relief of refund of advance -- Direction was given to defendant to pay plaintiff along with interest @ 12% p.a. from date of agreement till realization and also to bear  entire cost of suit before Trial Court and High Court – High Court deny specific performance on account of the following reasons:

i) That a huge sum of Rs.50 lakhs was paid as cash to the defendant which covers almost major portion of the sale consideration. Under normal circumstances when huge amounts are involved, some payments are paid either by cheque or demand draft.

ii) Plaintiff is a person who is capable of purchasing the entire property by paying the entire sale consideration at one stretch. If he could pay fifty lakhs on 20.01.2005, he could have paid the balance amount within a short time.

iii) It is not known under what circumstance a period of four months had been stated for complying with the terms of contract.

iv) Plaintiff claims that he was put in possession of the property which appears to be incorrect. There is no evidence to prove the said fact.

v) Plaintiff is a person who does not know to read Malayalam, but still the agreement is executed in Malayalam.

vi) The agreement is written by PW3 who is an interested party to the transaction. He claims to have received commission from both the parties which is not the practice followed in such situations.

vii) Defendant has a contention that his intention was only to get a loan for which he had signed certain papers. But he further states that he did not receive the loan. According to him, he had not received any amount from the plaintiff which of course we don’t agree.

viii) The actual amount paid by the plaintiff to defendant can only be discerned from the agreement, the genuineness of which is doubted by the defendant.

ix) Exts. A5 and A5(a) though had been relied upon by the Court below, the manner in which the said documents are executed and the purpose is doubtful.

x) The intention of the defendant was to sell only one item of property as is evident from Exts.B1 and B2 advertisements. The advertisements were published on 1^st January, 2005. A person who is in dire need of finances will either sell his property or he may take loan. Taking into account the factual circumstances, it is possible that a loan was arranged by the plaintiff for which a document in the nature of Ext.A1 was prepared.

Held, reasons given by High Court for not awarding relief of specific performance were sufficient -- Substantial justice was done by granting the  alternate relief.

(Paras 9-14)

Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 6 Rule 17 – Suit for specific performance – Subsequent purchaser as party-defendant – Amendment of plaint -- Doctrine of lis pendens – Effect of -- No doubt, by rule of lis pendens, subsequent purchaser is bound by the decree but at the same time, it cannot be said that the presence of the purchaser in the suit proceedings would be improper also – By amendment plaintiff only seeks to introduce the subsequent events relating to the alienation of the suit property -- Application filed by the petitioner/plaintiff under Order 6 Rule 17 CPC read with Order 1 Rule 10 CPC allowed.

(Para 7, 8)

Specific Relief Act, 1963 (47 of 1963), Section 6 – Constitution of India, Article 227 -- Recovery of possession – Limitation -- Suit beyond six months -- As per the pleaded case of the petitioner, he was dispossessed from the suit property on 28.04.2009 and thereafter, FIR was registered 08.05.2010 u/s 447/448/380 IPC – Instant suit came to be instituted on 02.02.2013 i.e. much beyond the prescribed period of six months – Trial Court dismissed the suit -- No error in the impugned order passed by the ld. trial Court – Revision dismissed.

(Para 1-6)