SUPREME COURT

DECIDED 26/10/2018

 

Transfer of Property Act 1882, Section 122 - Whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will -  That the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed - A gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee - Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance -  There is no provision in law that ownership in property cannot be gifted without transfer of possession of such property - However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied -  A gift is transfer of property without consideration - Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed. (2018)2 SCeJ 1555
 
 
Transfer of Property Act 1882, Section 122 - Whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift – In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent - The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband -  Deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor -  There was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.               (2018)2 SCeJ 1555

(2018)2 SCeJ 1230

 

 

 

 

Registration Act, 1908 , Section 17(1A)  - Agreement to sell - Dated 12th November, 1995, was executed prior to coming into force of Section 17(1A) of the Registration Act, 1908 (as inserted by Act 48 of 2001 with effect from 24th September, 2001) which provides for compulsory registration  -  That provision has been made applicable prospectively -  Hence, the said agreement executed prior, was not required to be compulsorily registered at the time of its execution - Even if it was required to be registered, keeping in view the purport of Section 49 read with Section 17(1A) of the Registration Act, 1908, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of Transfer of Property Act, 1882. DOWNLOAD / (2018)2 SCeJ 1230

 


HIGH COURT

Transfer of Property Act, 1882 (IV of 1882) - A registered sale deed is presumed to be in knowledge of everyone – The suit was filed after three years of knowledge – The suit was time barred. (2018-1) PUNJAB LAW REPORTER


Transfer of Property Act, 1882 (IV of 1882) Section  41 – Bona fide purchaser – Well settled that “no one can transfer better title than what he himself has” – Had no right, title or interest in the property – Hence, he was not in a position to transfer any title in the property to his vendors. (2018-2) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882 (IV of 1882) Section 52 – Rule of lis pendens would apply only in a case where any right to immoveable property is directly and specifically in question - In a suit for recovery, which was filed only on the basis of the pronote, right to the immoveable property is neither directly nor specifically in question – No material has been brought on record to prove that the sale deed executed by the Judgment Debtor was with a view to defraud the Decree Holder and frustrate the decree which may have been passed against the Judgment Debtor. (2018-1) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882 (IV of 1882) Section 53-A – A person claiming protection of Section 53-A, has to prove that he has a contract in his favour for transfer of immovable property in writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty - The possession has been delivered to the transferee in part performance of the contract or where he was already in possession he continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or willing to perform his part of the contract - The above terms as laid down in Section 53-A of T.P. Act specifically provide that in addition to the terms of written contract, delivery of possession to the transferee, it is required to be proved by the transferee that he has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.          (2018-3) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882 (IV of 1882) Section 53-A – However appears that the plaintiff has not even filed suit claiming relief under Section 53-A of T.P. Act - He had rather filed suit for declaration of his ownership and possession over the suit property - Though, he is proved to be in possession of the suit property, he is not owner of the same - He has further sought the declaration of his entitlement to get his name to be incorporated in the column of ownership in the revenue record - As the plaintiff is not owner of the suit property, he cannot be allowed any such relief as well.        (2018-3) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882, Section 53A – Agreement to sell  - Whether the suit agreement dated 9th July 2003, on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document - Document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the Transfer of Property Act, 1882 to protect its possession over the stated property -  If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the Transfer of Property Act, 1882.     DOWNLOAD / (2018)2 SCeJ 1230

 

Registration Act, 1908, Section 49  - Transfer of Property Act, 1882, Section 53A - Unregistered document -  Agreement to sell - A document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance - Conclusion recorded by the High Court that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the Registration Act, 1908 and shall not have any effect for the purposes of Section 53A of the Transfer of Property Act, 1882 - In that, it is received as evidence of a contract in a suit for specific performance and nothing more - The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the Transfer of Property Act, 1882 or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence – Order upheld .   DOWNLOAD / (2018)2 SCeJ 1230

 

Transfer of Property Act, 1882 (IV of 1882) Section 53-A – Only protects possession and does not confer any ownership right on the transferee - The ownership right is transferred only as per the relevant provisions of T.P. Act by way of sale, gift, conveyance etc. etc. and the agreement to sell does not fall in any of such category – Have utterly failed to prove that the sale deed in favour of the appellant is a result of fraud, misrepresentation or concealment of facts etc. - The findings of the Courts below on this aspect is beyond pleading, evidence on record and perverse, as such is set aside. (2018-3) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882 (IV of 1882) Section 55 – A registered sale deed cannot be set aside on the ground that the part of the sale consideration has not been paid - As per Section 55 of the Transfer of Property Act, the balance sale consideration, if any, remains unpaid, is a first charge on the property sold. (2018-2) PUNJAB LAW REPORTER

 

Transfer of Property Act, 1882 (IV of 1882) Section 118 – Assistant Collector, 2nd Grade, passed an order and sanctioned the mutation of exchange - The learned first appellate court has also noticed that the plaintiffs have practically admitted the case set up by the defendants, while discussing the evidence in the judgment – Parties to this litigation are brothers - They had orally settled their dispute and initially partitioned the property and thereafter exchanged - Both the brothers went to the revenue official and got entered a report to this effect, which was thumb marked by them - Since Section 118 of the Transfer of Property Act, 1882 has not been made applicable in the State of Haryana, therefore, oral exchange is permissible - Revenue record was corrected in the year 1985 and the parties acted thereupon - The suit has been filed after a period of 21 years – Suit for declaration of land and possession dismissed – Order upheld.  (2018-3) PUNJAB LAW REPORTER

Transfer of Property Act 1882, Section 122 - Whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will -  That the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed - A gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee - Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance -  There is no provision in law that ownership in property cannot be gifted without transfer of possession of such property - However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied -  A gift is transfer of property without consideration - Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed. (2018)2 SCeJ 1555
 
 
Transfer of Property Act 1882, Section 122 - Whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift – In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent - The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband -  Deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor -  There was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.               (2018)2 SCeJ 1555
 
Transfer of Property Act, 1882 (IV of 1882) Section 123 – Gift deed – Must be made through a registered instrument, signed by or on behalf of the donor and attested by at least two witnesses – Gift may be effected either through a registered instrument signed as aforesaid or by delivery in case of movable property – Donor and donee are close relative – Donee is sister-in-law of donor (brother’s wife) – It is recorded in the gift deed that the donee is taking care of the  donor – Donor has remained alive for almost 12 years after execution of the gift deed – At no point of  time in his life time ever doubted the validity of the gift deed – Court has wrongly put onus on the donee to prove intention of the donor -  The intention of the donor to gift the property is proved from the reading of the registered gift deed. (2018-3) PUNJAB LAW REPORTER

 

 

 

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