Search By Topic: Property Dispute Cases

153. (P&H HC) 18-05-2022

A. Indian Penal Code, 1860 (45 of 1860), Sections 417, 420, 467, 468 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Agreement to sell with complainant – Concealment of previous agreement – Conviction by Trial Court, affirmed by Appellate Court – Revision against -- In agreement to sell executed with the complainant, it was stated that there is no prior agreement pertaining to the land -- Vendee of prior agreement to sell/ PW-1 submitted that the agreement to sell was executed with him and that the civil suit filed for specific performance of the said agreement under the Specific Relief Act was decreed in his favour and consequently, the sale deed was executed in his favour – Claim of the petitioner that he did not intend to defraud the complainant is apparently misconceived -- No explanation has been given as to why a wrong statement was made by the petitioner under his signature in the agreement – It cannot be said that the dispute in question was civil in nature – No illegality, perversity, infirmity or impropriety in the judgments passed by the Courts below – Revision dismissed.

(Para 10-16)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Revisional jurisdiction -- Restricted to examine whether there is any manifest error of law or procedure, such a power is to be exercised only when there is an apparent illegality, gross procedural irregularity or impropriety leading to miscarriage of justice, legal infirmity or gross mis-appreciation of the evidence that does not reconcile to the conclusion drawn by the Court -- High Court in a revisional jurisdiction would not interfere in the opinion of the Courts below if such an opinion is a possible opinion on the basis of the evidence brought on record and would not substitute its own opinion merely because such opinion is also a possible opinion.

(Para 15)

167. (SC) 03-03-2022

A. Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 38 -- Suit for declaration and permanent injunction -- Injunction against true owner -- Plaintiff failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession” -- Plaintiff is not entitled to any permanent injunction against the true owner.

(Para 10)

B. Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 38 -- Substantive relief – Consequential relief -- Once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, relief of injunction can be said to be a consequential relief must fail.

(Para 11)

C. Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 38 -- Suit for declaration -- Consequential relief of injunction – Injunction against true owner -- It is not a suit for declaration simpliciter, it is a suit for declaration with a further relief -- Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law -- Once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.

(Para 11.1-12.1)

169. (P&H HC) 10-09-2021

A. Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Question of title – Requirement of – In suit for grant of permanent injunction, where the main thing to be seen is as to whether the plaintiff has been in established possession of the suit land -- Question of title is not to be decided in such type of suit -- Nevertheless, the document of title to the suit property produced in evidence on behalf of any of the parties can certainly be taken into consideration to find out the nature of possession.

(Para 10)

B. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Exhibition of documents – Replacement by original – Permissibility of -- Plaintiff placed on record copy of the sale deed, duly attested by Notary Public, which had been exhibited, though, it was subject to objection with regard to mode of proof and admissibility raised on behalf of the defendant -- Plaintiff sought to place on record the original sale deed and to exhibit it just to remove the technical objection -- Trial Court considering all the aspects of the case, exercising powers u/s 151 CPC had allowed that application -- Such exercise of power by the trial Court can certainly be not termed as arbitrary or perverse, rather, it comes out that such power has been exercised in a judicious manner for proper adjudication of the controversy between the parties.

(Para 10)

C. Code of Civil Procedure, 1908 (v of 1908), Section 151 -- Inherent power of civil Court – Nature of -- It is a very vast power, which can be exercised by the Court for achieving ends of justice and to prevent abuse of process of the Court -- Unnecessary interference in exercise of such power by the trial Court is uncalled for.

(Para 11)

172. (P&H HC) 23-04-2021

A. Specific Relief Act, 1963 (47 of 1963), Section 14 -- Agreement to sell – Property already mortgage with bank – Criminal proceedings initiated – Effect on civil rights -- Merely because the plaintiff had also preferred criminal proceedings on the ground that the accused had taken bank loan from Bank but had entered into an agreement with him to sell the property, and he had been cheated, would not be a ground to deny the benefit of the decree to him – Appellant/accused acquitted by giving benefit of doubt in criminal proceedings – Suit decreed by civil court, upheld.

(Para 1, 13)

B. Evidence beyond Pleadings – Permissibility of -- It is settled principle that evidence beyond the pleadings cannot be taken into consideration.

(Para 17)

C. Specific Relief Act, 1963 (47 of 1963), Section 14, 16(1)(c) – Specific performance of agreement -- Readiness and willingness – Earnest money and additional amount of Rs.8.5 lacs paid -- Plaintiff prepared D.D. of Rs.13,50,000/-, balance consideration before the cut-off date and purchased stamp papers worth Rs.1,54,000/- -- Filing of the suit was also within a month and a half after serving a legal notice asking the appellant to execute the sale deed -- All these factors combined would go on to show that the Courts below have justifiably decreed the suit in favour of the plaintiff.

(Para 2, 18)

D. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Evidence law -- Execution of agreement to sell – Willingness of -- Wife of the appellant opposed the agreement by approaching the police -- Appellant himself applied for NOC to sell the property --  These factors would go on to show that the agreement had been entered into for the sale of the said property -- Almost 1/3rd of the amount had been received in advance and therefore, it would not lie in the mouth of the appellant to contend that the same had not been executed by him willingly.

(Para 19)

E. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Misrepresentation – Undue influence – Proof of – It is settled principle that allegations of misrepresentation or undue influence have to be given in full and precise particulars and then duly proved under Order 6 Rule 4 CPC.

(Para 20)

184. (SC) 18-12-2020

A. Transfer of Property Act, 1882 (4 of 1882), Section 111, 114, 114A – Ejectment of lessee – Forfeiture for non-payment of rent -- U/s 114A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach – Held, same cannot be construed as a statutory protection nor as a hard and fast rule in all cases to waive the forfeiture -- It is a provision enabling exercise of equitable jurisdiction in appropriate cases as a matter of discretion.

(Para 15)

B. Transfer of Property Act, 1882 (4 of 1882), Section 111, 114, 114A – Arbitration and Conciliation Act, 1996 (26 of 1996) -- Ejectment of lessee -- Forfeiture for non-payment of rent – Arbitration jurisdiction -- If the special statutes do not apply to the premises/property and the lease/tenancy created thereunder as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an Arbitration Clause; the dispute between the parties is arbitrable and there shall be no impediment whatsoever to invoke the Arbitration Clause – It would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.

(Para 16, 18)

C. Arbitration and Conciliation Act, 1996 (26 of 1996) -- Protection of Rent Control legislation – Eviction of tenants – Arbitration jurisdiction – Insofar as eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction whereunder the Court/Forum is specified and conferred jurisdiction under the statute alone can adjudicate such matters -- Hence in such cases the dispute is non-arbitrable.

(Para 17, 18)

186. (SC) 08-12-2020

A. Transfer of Property Act, 1882 (4 of 1882), Section 122, 23 – Gift deed – Acceptance by donee --  Section 122 of the TP Act, 1882 neither defines acceptance, nor does it prescribe any particular mode for accepting the gift – Aforesaid fact can be ascertained from the surrounding circumstances such as taking into possession the property by the donee or by being in the possession of the gift deed itself -- Only requirement stipulated here is that, the acceptance of the gift must be effectuated within the lifetime of the donor itself – Being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee.

(Para 24-27)

B. Transfer of Property Act, 1882 (4 of 1882), Section 122, 23 – Gift deed – Acceptance by donee --  Recitals clearly indicate that donor intended to part with ownership and possession immediately after the execution of the gift deed -- Mutation entry in the Revenue Record clearly reflects that half portion of appellant's land was bestowed as a gift by the appellant to his son through a registered instrument of gift -- Statement rendered by the appellant-donor before the Court of Additional District Magistrate indicates that the donee was already a major at the time of the execution of the gift deed and after execution of the gift deed the donee started cultivating on the same -- Aforesaid statement of the appellant-donor is completely supported by the statement made by the donee before the Court of Additional District Magistrate -- Donee clearly stated that, the land was transferred to him by virtue of gift deed was under his possession and he was cultivating the same – Held, therefore, there was an acceptance of the gift by the donee during the lifetime of the donor.

(Para 28-32)

C. Transfer of Property Act, 1882 (4 of 1882), Section 122, 23 – Registered Gift deed – Challenge to -- Respondents failed to bring on record any evidence to rebut the fact that the donee was in enjoyment of the property -- Plausible view was taken that, it was a transfer between a father and a son and there was a valid acceptance of the gift when the donee-son started living separately -- Lastly, it ought to be noted that apart from the point of acceptance by the donee, since the deed is registered, bears the signature of the donor and has been attested by two witnesses, the requirements u/s 123 of the TP Act, 1882 have been satisfied.

(Para 33)

D. Rajasthan Tenancy Act, 1955 (Rajasthan Act No. 3 of 1955), Section 30D, 30DD – Transfer by gift deed -- Protection from land ceiling -- If the appellant succeed in its endeavor to establish that the transfer was covered u/s 30DD of the Tenancy Act of 1955, then such transferred land has to be exempted from computation of confiscable land, irrespective of the fact that it falls within the ceiling limit as prescribed under Section 30D of the Tenancy Act of 1955.

(Para 43)

E. Rajasthan Tenancy Act, 1955 (Rajasthan Act No. 3 of 1955), Section 30C, 30D, 30DD -- Land ceiling area u/s 30C -- Transfer by registered gift-deed on 19.12.1963 – Protection from land ceiling -- It must be taken into consideration that, the aforesaid transfer was executed way before the cut-off date stipulated u/s 30DD i.e. 31.12.1969 -- Therefore, the registered gift deed dated 19.12.1963 was a bona fide transfer squarely covered within the ambits of Section 30DD, which intended to protect the rights of agriculturalists – Held, transfer is not invalid as it stands protected as per the provision of Section 30DD of the Tenancy Act of 1955.

(Para 46)

F. Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (Rajasthan Act No. 11 of 1973), Section 6 – Bonafide transfer – Protection from land ceiling -- Transfer of land by gift deed on 19.12.1963 -- There is no finding that the gift deed was actuated upon any extraneous consideration -- Hence, it constitutes a bona fide transfer which are exempted from the rigors of Section 6 of the Ceiling Act of 1973.

(Para 48)

188. (SC) 02-11-2020

A. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 71(1) -- Consumer Protection Act, 1986 (68 of 1986), Section 12, 17, 21, 23 -- Pending complaints before Consumer Forums/Commission – RERA came into force – Effect on complaints -- Proviso of Section 71(1) gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.

(Para 28)

B. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 18, 79, 88 -- Consumer Protection Act, 1986 (68 of 1986), Section 12, 17, 21, 23 -- Consumer complaint after coming into force of RERA Act – Maintainability of -- Cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation -- Absence of bar u/s 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving u/s 88 of the RERA Act, make the position quite clear -- Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available” -- Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.

(Para 28)

C. Real Estate (Regulation and Development) Act, 2016 (16 of 2016), Section 18 – Buyer-seller agreement – Registration under RERA Act -- Effect of -- Construction was to be completed in 42 months -- Period had expired well before the Project was registered under the provisions of the RERA Act – Held, merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred -- For the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration -- Entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements.

(Para 33)

190. (P&H HC) 21-10-2020

A. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Agreement to sell with possession -- Specific recital with regard to delivery of possession in the agreement to sell signed by the parties proved -- Mere failure of plaintiff to depose about the delivery of possession in the examination-in-chief would not be sufficient for the Court to record a finding that the stand of the plaintiffs with respect to delivery of actual possession is erroneous.

(Para 9)

B. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Agreement to sell with actual physical possession of specific portion out of joint land – Permissibility of -- A co-sharer in actual physical possession of a specific portion out of the big parcel of joint land is entitled to deliver possession thereof to anyone -- No doubt, sale of a specific portion or parcel of land out of joint property by a co-sharer shall be deemed to be sale of undivided share out of joint land -- However, there is no bar either in the delivery of possession of specific portion or sale thereof out of the joint land -- First Appellate Court committed material irregularity while observing that a co-sharer cannot deliver the possession of the specific portion in its possession to someone out of joint property.

(Para 10)

C. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Delay and laches – Appellate Court finds that suit filed by the plaintiffs suffers from laches -- Defendant while filing the written statement did not allege that the suit suffered from laches -- Consequently no issue on this aspect was framed -- In the evidence no stand that the suit filed by the plaintiffs suffers from unexplained laches -- Thus, the observations made by the learned first Appellate Court are not only beyond pleadings but also beyond evidence.

(Para 11, 12)

D. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Suit for specific performance – Limitation -- Delay and laches -- Period of limitation in a suit for specific performance do not begin to run from the date on which agreement to sell has been executed – Period of limitation would either begin to run from the date fixed for its performance or if no date or period is stipulated, then from the date the plaintiff has notice that the performance has been refused by the opposite side.

(Para 11, 13, 21)

E. Code of Civil Procedure, 1908 (V of 1908), Section 96 -- First Appeal – Setting aside of trial court judgment -- It is not appropriate for the learned first Appellate Court to set aside the judgment passed by the learned trial Court without recording definite finding or the reasons for reversing thereof after critical analysis of the reasons with reference to error in the application of law or misreading or non-reading or misconstruction of the evidence available on record.

(Para 21)

F. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Agreement to sell – Entire sale consideration paid – Delay and laches – Ground of -- It is not appropriate for the Court to decline the relief of specific performance on the ground of laches particularly when the entire sale consideration has been paid and the suit was filed within limitation.

(Para 21)

193. (P&H HC) 06-10-2020

Specific Relief Act, 1963 (47 of 1963), Section 41(j) – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8, Order 39 Rule 1 & 2, Section 151 – Constitution of India, Article 227 -- Suit for mandatory injunction – Temporary injunction – Maintainability of -- Construction of Community Hall on the instructions of State Government, which has accorded permission on the basis of resolution passed by the Gram Panchayat and the amount is being spent by the State Government – Challenge to stay declined by Courts below – Held,

-- It is well settled principle of law that in a suit for mandatory injunction, no relief of temporary injunction can be granted, which will amount to passing a decree of mandatory injunction itself.

-- A careful perusal of the plaint would show that nothing is stated that any personal right of any of the petitioners is infringed, therefore, in view of Section 41(j) of the Specific Relief Act, the suit is not maintainable.

-- The suit has not been filed in representative capacity under Order 1 Rule 8 CPC and no application has been moved seeking permission from the Court that the suit is being filed on behalf of the entire village community, therefore, it is a suit which has been filed only by nine inhabitants of the village, whereas the Community Hall is being constructed for the entire village.

-- Both the Courts below have discussed the judgments of this Court, wherein it is held that the Gram Panchayat is competent to change the user of the land in a manner it likes as well as when sufficient area of Shamlat land is available, it can be used for any other development work and injunction cannot be granted regarding change of nature of land.

-- Even a perusal of the plaint further shows that it is nowhere mentioned that the passage of the temple will be blocked, rather it is a case of Gram Panchayat that there is difference of about 400 ft. between the temple and the Community Hall.

Court found no ground to interfere with the well-reasoned orders passed by the Courts below dismissing the application for stay -- Finding no merit in the revision petition, the same is dismissed.

(Para 9-11)

195. (SC) 27-08-2020

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- A second appeal only lies on a substantial question of law -- If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal -- It was not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a Second Appeal -- Existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

(Para 25, 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way -- To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

(Para 32, 33)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Principles summarised:

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(Para 37)

D. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A decree of possession does not automatically follow a decree of declaration of title and ownership over property -- It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.

(Para 46)

E. Specific Relief Act, 1963 (47 of 1963), Section 5 -- Suit for possession – A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation -- He must show that he had possession before the alleged trespasser got possession.

(Para 51)

F. Possession Follows Title -- Maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all -- The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

(Para 52)

G. Limitation Act, 1963 (36 of 1963), Section 3 -- Suit for possession – Limitation – Ground of -- A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963 -- Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act -- Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

(Para 53)

H. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Suit for possession -- Regular Second Appeal – Substantial question of law -- In the absence of any whisper in the plaint as to the date on which the Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Plaintiff the relief of recovery of possession, more so when the Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

(Para 55)

I. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

(Para 59)

196. (SC) 24-08-2020

A. Consumer Protection Act, 1986 (68 of 1986), Section 2(1)(o) – Apartment/ Flat developer -- Deficiency in service -- Failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency -- Expression “service” in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction.

(Para 24)

B. Consumer Protection Act, 1986 (68 of 1986), Section 14(1)(e) – Apartment/ Flat developer – Unfair bargain -- Power of Consumer Courts -- Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation -- These legitimate expectations are belied when the developer is guilty of a delay of years in the fulfilment of a contractual obligation -- There has been a gross delay in the handing over of possession beyond the contractually stipulated debt -- Jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

(Para 24)

C. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Compensation for delayed possession – Execution of conveyance deed and handing over possession – Effect of -- Developer has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora – Court did not subscribe the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.

(Para 36)

D. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Delay in possession -- Re-sale of apartment by allottee – Subsequent buyer – Rights of -- Appellants transferred their title, right and interest in the apartments would not be entitled to the benefit since they have sold their interest in the apartments to third parties -- It cannot be said that the subsequent transferees suffered any agony and harassment comparable to that of the first buyers, as a result of the delay in the delivery of possession in order to be entitled to compensation.

(Para 38)

E. Consumer Protection Act, 1986 (68 of 1986), Section 12 – Purchase of Apartment/ Flat -- Amenities -- Flat purchasers cannot be left in the lurch or be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area -- Developer must be held accountable to its representation -- Representation held out by the developer cannot be dismissed as chaff -- Difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers -- Difficulties in determining the measure of compensation cannot however dilute the liability to pay -- A developer should be held accountable to the process of law -- To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers -- Dismissal of the complaint by the NCDRC was erroneous.

(Para 43-55)

197. (SC) 11-08-2020

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Right of daughter in co-parcenary property – Effect of substitution of section 6 in 2005 – Date of birth of daughter – Father’s life status -- Relevancy of – Held, it confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities -- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 (the date of enforcement of Amending Act) -- Rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(Para 129)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Preliminary decree passed – Final decree yet to passed or Appeal pending -- Daughter’s right as co-parcener – Held, provisions of the substituted Section 6 are required to be given full effect -- Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(Para 129)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Oral partition – Effect on daughter’s co-parcenery share – Held, in view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court -- However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted -- A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

(Para 129)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Speedy  disposal of -- Daughters cannot be deprived of their right of equality conferred upon them by Section 6 -- Hence, Supreme Court requested that the pending matters be decided, as far as possible, within six months.

(Para 129)

E. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Daughter’s right in co-parcenary property – Supreme Court answered the reference  and overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. (2016) 2 SCC 36, the opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar, (2018) 3 SCC 343 = Law Today Live Doc. Id. 10069 = 2018 (1) L.A.R. 264 is partly overruled to the extent it is contrary to this decision.

(Para 130)