Right of Appeal is a Statutory Right

Ganga Bai vs Vijay Kumar & Ors 

1974 AIR SC 1126, 1974 SCR (3) 882

http://indiankanoon.org/doc/1350326/

There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril,_bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.

Under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1.

No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal

Vijay Prakash D. Mehta & Anr vs Collector Of Customs 
1988 AIR 2010, 1988 SCR Supl. (2) 434
http://indiankanoon.org/doc/1958793/

Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 

It is not the law that adjudication by itself following the rules of natural justice would be violative of any right- constitutional or statutory, without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant.

Devolution of an estate on the widow - Hindu Women's Rights to Property Act, 1937

Gangadhar Rout And Anr. vs Subhashini Bewa And Ors AIR 1955 Ori 135
http://indiankanoon.org/doc/333388/

Section 3 of Hindu Women's Rights to Property Act, 193, relevant sub-sections are :

"(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had'. 

(3) Any interest devolving on a Hindu Widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner." 

"The widow's right is a statutory right"

Devolution of an estate, on the widow, under Section 3(2) of the Act is neither by survivorship nor by inheritance, but is a special right created in favour of the widow by the Statute. She is not a coparcener in the family, nor is she a joint tenant with the coparceners. Her interest lapses, on her death, not to her husbands heirs but to her reversioners, namely, the other coparceners. 

She cannot be the Karta of the family by reason of the limited estate that she acquires, nor can she call upon the manager to account for the income of the family. She cannot question the alienation made by the manager for justifying necessity. In other words, her interest in the property remains just as it was before the passing of the Act, except that under the Act she can call for a partition and reduce her husband's interest to separate possession. 

Under the Hindu Law she had only a right to maintenance in the joint family, while the Hindu Women's Rights to Property Act, which is designed to give her better rights, enables her to step into the shoes of her husband and ask for partition. But the interest given to her by the Act is still the limited estate known as the Women's estate. Her right and liabilities in other respects remain the same as they were before the passing of the Act.

If and when she works out a severance of status by suing for partition, the interest of her husband in the property' gets denned and acquires, a separate existence as an entity. This interest will devolve, on her death, on her husband's heirs and not revert to the coparcenary as It has already been disrupted. 

The Act does not, by itself, effect a severance in status. The joint family continues to have the same status as it had at the time oi the death of her husband. The property referred to in Section 3(2) of the Act, is the joint family property held by the coparcenary. The Section provides that the widow shall havt the "same interest as he himself had" in that property at the time of his death. The interest is of a fluctuating character and is liable to be either reduced or augmented on the birth or death of a coparcener. If the husband of the widow had not sued for partition, his interest in the coparcenary property would be open to the risk of fluctuation. .. One of the incidents of a coparcenary property is that no coparcener can predicate what his share is at any definite point of time, unless he gets his share separated by partition, It would be anomalous to held that a widow would be entitled to claim a definite share which her husband could not have... the Act gives the widow just what her husband had, namely, his undivided interest, subject to fluctuations arising out of the varying fortunes of the family. 

8. In a suit for partition the Court has to ascertain who the parties are that are entitled to a share, besides determining the assets and liabilities available for partition. The plaintiff's rights have got to be determined on a consideration of both the factors. 

47. ...Section 3(2) does not operate as severance of the interest of the deceased coparcener. The right which the widow gets under the section is not as heir of her deceased husband. It is a statutory right based on the recognition of the principle that the widow is the surviving half of the deceased husband. The interest which devolves on her is a fluctuating interest. She continues as a member of the joint family till she demands a partition and that she is entitled when she sues for partition to the share of her husband in family properties as they stand at the time of the partition suit and the share to which he would be entitled to then,

Devise and inheritance distinguished

Devise and inheritance distinguished for the purpose of S. 15 of Hindu Succession Act, 1956

testamentary disposition  is a devise whereas inheritance is by virtue of devolution of property on intestate

Jayantilal Mansukhlal And Anr. vs Mehta Chhanalal Ambalal AIR 1968 Guj 212, (1968) 0 GLR 129 http://indiankanoon.org/doc/634161/

Dispute regarding S. 15(1) (a) of Hindu Succession Act, 1956

Kanta’s mother executed a registered will in favour of Kanta. Both died in a fire in the house they were living together. Whether property devolves on Kanta’s husband as she died intestate?

It is clear that Clause (a) deals with devolution of "any property inherited by a female Hindu from her father or mother" and provides that "in the absence of any son or daughter of the deceased", the property shall devolve not upon the other heirs referred to in sub-section (1) in the order specified therein, but "upon the heirs of the father". The instant case is clearly a case of a devise and not of an inheritance. Kanta's property is indisputably the one which had devolved on her by a "devise" or a "bequest" under the will of her mother Mangu. The words "devise" and "inheritance" are distinct expressions as is apparent from the use of the two distinct words in the explanation to sub-section (1) of Section 14 of the Act. Clause (a) of sub-section (2) of Section 15 clearly relates to inheritance and as such, can have no application in the case of a devise as is the case before us. 

Tansfer of Property in presentae and by Testamentary Disposition - Distinction

the gift executed by holder of life estate cannot survive the cessation of the life estate or stand in the way of the ultimate beneficiary recovering possession on the strength of the bequest in his favour on the coming to an end of the intervening life estate.

Sadhu Singh vs Gurdwara Sahib Narike & Ors Appeal (civil) 1854 of 2003
http://indiankanoon.org/doc/1468380/

19. ....in the case of a transfer in presenti wherein the first clause of the conveyance would prevail over anything that may be found to be repugnant to it later, in the case of a will, every effort must be made to harmonize the various clauses and if that is not possible, it will be last clause that will prevail over the former and giving way to the intention expressed therein.

Ramchandra Shenoy and Another Vs. Mrs. Hilda Brite and others [(1964) 2 S.C.R. 722]

"It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B."

Section 111 of the Indian Succession Act Analysis

Section 111 of the Indian Succession Act

Dr. Mahesh Chand Sharma vs Smt Raj Kumari Sharma And Ors 1996 AIR 869, JT 1995 (8) 466 http://indiankanoon.org/doc/408373/

The main limb of Section 111 says that where bequest is made simply to a described class of persons, the bequest shall devolve only upon such members of the class as are alive on the date of the testator's death. The exception appended to Section 111 says that if property is bequeathed to a class of persons/described as standing in a particular degree of kindred/to a specified individual/but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest, or otherwise/the property shall at that time go to such of them as are alive and to the representatives of any of them who have died since the death of the testator. For the exception to apply, it must first be shown that the bequest is to a class of persons. Then it must be shown that the said class of persons is described as standing in a particular degree of kindred to a specified individual. The third requirement is that the possession of the bequest is deferred until a time later than the death of the testator for one or the other reason. If the above ingredients are satisfied then the property bequeathed devolves upon such persons of the class as are alive on the date of death of the interposer (prior bequest) and upon the representatives of such of those who may have died after the death of the testator but before the death of the interposer. … the words "a specified individual" cannot refer to or mean "the testator". The very Explanation uses both the words "testator" and " a specified individual". If the idea behind the exception was to refer to testator, then it would not have employed the words "a specified individual". Nothing was more simpler than using the words "the testator" instead of the said words actually used. This means that the words " a specified individual" refer to an individual other than the testator. .. In each of those illustrations, the class of persons is described as children or (or the relatives of) a person other than the testator. None of them speaks of a class of persons related as aforesaid to the testator. Once this is so, the exception goes out of the picture. .. the legal heirs of testator - assuming that they constitute a class of persons within the meaning of the exception - are described as standing in a particular degree of kindred to the testator - and not to "a specified individual". … the words "a specified individual" cannot and do not refer to the testator, the exception becomes inapplicable.

S. 119 - unless a contrary intention appears from the Will, a bequest made to a legates, who is not entitled to immediate possession of bequest, gets vested in such legatee on the date of death of the testator. The Explanation appended to the section elucidates the words "unless a contrary intention appears by the Will" occurring in the main limb of the section. The Explanation says inter alia that merely because a prior interest in the bequest is given to some other person, it does not mean that a contrary intention is indicated in the Will. Illustration (iii) is of crucial relevance. It says that where a fund is bequeathed to A for life and after A's death to B, the legacy to B becomes vested in interest in B on the testator's death. 

Law Governing Execution of Trusts

Shanti Vijay & Co. Etc vs Princess Fatima Fouzia & Ors. 1980 AIR 17, 1980 SCR (1) 459 http://indiankanoon.org/doc/906879/

The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction effecting the trust property, and a majority cannot bind the trust estate. In order to bind the trust E. estate, the act must be the act of all. They constitute one body in the eye of law, and all must act together. This is, of course, subject to any express direction given by the settlor. The Judicial Committee in Lala Man Mohan Das v. Janki Prasad quoted a passage from Lewin's Law of Trusts, 15th ed., p. 190, to the effect :

"In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but one collective trustee, and there fore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction: all who accept the office are in the eye of the law acting trustees. If any one refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co- trustee may be regarded as the act of both. But such sanction or approval must be strictly proved."

The decision in Lala Man Mohan Das's case has been followed with approval by this Court in L. Jankirama Iyer & Ors. v. Neelakanta Iyer & Ors.

where there are several trustees they must act unanimously in making a sale or a contract of sale, unless it is provided otherwise by the terms of the deed. In exercising the power of sale, as in the exercise of other powers, a trustee cannot, therefore, properly delegate the performance of the acts which he ought personally perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgment. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. The reason for this is the settlor has entrusted the trust property and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience: Underhill's Law of Trusts and Trustees, 12th Ed., pp. 434, 442-43: Scot on Trusts, vol. 2, p. 1033.

Section 48 of the Trusts Act provides as follows:

"48. When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides."

It is axiomatic that where there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. 

If the validity of an alienation effected by the trustees falls to be considered only in the light of s 48, the fact that out of the three trustees only two have executed the sale deed would by itself make the transaction invalid and would not convey a valid title to the transferee.

A trustee cannot delegate his functions except as provided in s. 47, which reads:

"47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or

(c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation."

Section 48 is a corollary of s. 47 for, if the trustees cannot delegate their duties, it follows that they must all personally perform those duties, and not appoint one of themselves to manage the business of the trust; for the settlor has trusted all his trustees, and it behoves each and every one of them to exercise his individual judgment and discretion on every matter, and not blindly to leave any questions to his co-trustees or co-trustee.

Gifts under Mahommedan Law

Transfer of immovable property made in consideration of a part of an existing dower debt is a sale. An oral transfer of immovable property worth more than Rs. 100 cannot be made by a Muslim husband to his wife by way of gift in lieu of dower-debt which also exceeds Rs. 100. Such a transaction is neither a gift nor a combination of gifts which can be made orally; it is a sale which can be effected by means of a registered instrument only.

Ghulam Abbas vs Mt. Razia Begum And Ors AIR 1951 All 86
http://indiankanoon.org/doc/301560/

Characteristics of Gift under Mohemmadan Law was considered in this case to determine whether the transaction was a sale or gift simpliciter.

10. Gifts under Mahommedan Law may be classified under three heads :

"(1) A hiba, pure and simple ;

(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and 

(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).

11. In Durr-ul-Mukhtar, a hiba, or gift, pure and simple, is defined as "the transfer of the right of property in the substance?-(tamlik-ul-ain) by one person to another without consideration (ewaz) but the absence of consideration is not a condition in it."

12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms :

"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."

15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee ; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T. P. Act.

In this case the transaction not being a hiba or gift pure and simple or a combination of such gifts, court had to determine whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T. P. Act. 

Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times :

"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds ; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.

This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.

In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."

Then the court looked further at p. 162, where the learned author has further observed :

"In air these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modern times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In tins kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in esse; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."

The court looked at the distinction between the earliest and the modern form of hiba-bil-ewaz is important and has to be borne in mind in considering the nature of the transfer as has been clearly brought out in Baillie's Digest of Mahommedan Law, (Edn. 2, p. 122) :

" Hiba-bil-Iwaz means, literally, gift for an exchange; and it is of two kinds, according as the Iwaz, or exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts ; first, the original gift, and second, the Iwaz, or exchange, But in the Hiba-bil-Iwaz of India, there is only one act--the Iwaz, or exchange, being involved in the contract of gift as its direct consideration. 'And all are agreed that if a person should say, 'I have given this to thee for so much,' it would be a sale; for the definition of sale is an exchange of property for property, and the exchange may be effected by the word 'give,' as well as by the 'sell.' The transaction which; goes by the name of Hiba-bil-Iwaz is, therefore, in reality not a proper Hiba-bil-Iwaz of either kind, but a sale, and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and, what is of great importance in India, an undivided share in property capable of division may be lawfully 1 transferred by it, though that cannot be done by either of the forms of the true Hiba-bil-Iwaz."

The court held that as it was expressly stipulated in .the contract,--the grant and the consideration are admittedly parts of one and the same transaction. The husband transferred his property--and purported to do so by way of gift--for a consideration of Rs. 2,500, part of the dower-debt-due from the husband to the wife, the transferee. The transfer was not made in consideration of any earlier gift or consideration. Consequently, it was not hiba-bil-ewaz recognised by the Mahommedan law in its early and undeveloped form; but it is hiba-bil-ewaz of modern times having "the legal character of a sale"--"hiba-bil-ewaz ..... a sale in all its legal incidents."

Further looking at the definition of sale the court held :

20. "Sale," as defined in Section 54, T. P. Act, "is a-transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." It is true that in some cases the word "price" has been interpreted to mean "money;" but in Saiful Bibi v. Abdul Aziz Khan, 1931 A. L. J. 951 : (133 I. C. 901) it has been held that "a transfer of property in lieu of an existing debt in cash would be a transfer for a price so as to bring it within Section 54, T. P. Act."

The use of the word "price" instead of "money" in the section signifies that the word is wide enough to include any amount which can be definitely ascertained and worked out in terms of money, such as outstanding debts. An owner of property may transfer the same in lieu of outstanding debts--and there is no legal bar against his doing so. Although debts are not "money" in the ordinary sense of the term, yet they can be worked out in terms of "money." The dower is a debt--it has been so regarded even under the Mahommedan law; consequently, if the amount of dower is ascertained and the transfer is made in lieu thereof the transfer would be for a price. The transfer in question which is a hiba-bil-ewaz, under the Mahommedan law, having all the legal incidents of a sale, falls within the purview of Section 54, T. P. Act.

21. It follows, therefore, that the transfer in the present case is a hiba-bil-ewaz, a gift for consideration, having all the legal characteristics of a sale; and, inasmuch as the provisions of Section 54, T. P. Act, apply even to a sale transaction between Muslims, the transfer must be deemed to be a sale within the meaning of the said section. 

After considering numerous earlier decisions, the court held :

42. A transfer may have all the attributes of a true 'hiba-bil-iwaz' known to Mahommedan law, and it may also be treated as such; but if it falls within the purview of Section 54, T. P. Act, and is not effected in the manner provided therein, it will be inoperative and ineffectual in law. The delivery of possession under such a, transfer will also be ineffectual as against the real owner of the property.

43. If there is a transfer for consideration and the consideration is such which can be considered price within the meaning of Section 54 of the Act, the transfer would fall within the purview of the said section. Under Section 129, T. P. Act, the rules of Mahommedan law are not affected by the provisions relating to gifts in that Act; but there is nothing in the Act which exempts transactions in the nature of a sale-from the operation of Section 54 of the Act. The obvious reason why two Muslims cannot by an oral, transaction transfer to each other two properties in exchange for a price is that, such, a transaction would be governed by the provisions of Section 54, T. P. Act, which also govern sale transactions between Muslims.

Agreement to Sell - S. 53A of Transfer of Property Act

Patel Natwarlal Rupji vs Shri Kondm Group Kheti Vishayak & Anr
http://indiankanoon.org/doc/484854/

The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act, Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. 

Section 53-A of the Act merely protects the transferee's right to retain possession of the property had under the contract and imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title to the defendant in possession nor can he maintain a suit on title. Section 53- A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant.

Section 53-A of the Act provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf which constitutes 'transfer', and the transferee has, in part performance of the contract, taken possession of the property of the transferor, the transferee being already in possession, 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 is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English Law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the Contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the court with clean hands and he alone is entitled to the benefit of his section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the Conditions mentioned in the section are fulfilled by the transferee, and section bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee.

In Sardar Govindrao Mahadik & Anr. v, Devi Sahai & Ors., [1982] 1 SCC 237, Supreme Court had held that the court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that, to refuse relief would be perpetuating the fraud of the party, who after having taken advantage or benefit of the contract, backs out and pleads non-registration as a defence.

Conditions to obtain relief under S. 53A are :

(i) there must be a contract for transfer for consideration of any immoveable property;

(ii) the contract must be in writing, signed by the transferor, or by someone on his behalf;

(iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

(iv) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;

(v) the transferee must have done some act in furtherance of the contract; and

(vi) the transferee must have performed or be willing to perform his part of the contract;

Rights of a Lessor - S. 53A of Transfer of Property Act

Section 53- A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor where the lease deed is unregistered. under s. 53A of the Transfer of Property Act, a transferor is barred from interfering with the rights of the transferee, even if the transferee gets possession of any part of the property sought to be trans- ferred by the unregistered document of transfer. That section specifically uses the expression "taken possession of the property or any part thereof"

Where lease is for a period exceeding one year, Section 107 of the Transfer of Property Act is applicable and such a lease could not have been validly made, except under a registered instrument. Where no definite period for the lease is mentioned, S. 106 of the Transfer of Property Act is applicable and the lease  in respect of immovable property must be deemed to be a lease from month to month.

Delhi Motor Company And Ors vs U.A. Basrurkar And Ors 1968 AIR 794, 1968 SCR (2) 720 
http://indiankanoon.org/doc/1765703/

S. 53A is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but do not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.

S. 27A of Specific Relief Act is not applicable when compared with the provision in S. 53A of the Transfer of Property Act clearly brings out the position that the former section is only applicable when possession of the entire property, which is the subject-matter of the contract, has been taken, while the latter section is made applicable even if the lessee takes possession of any part of the property.

Prosecution under S.198 CrPC for Offence of Bigamy S. 494 & 495 of IPC

Thangamani vs State Of Kerala II (2006) DMC 222, 2006 (1) KLT 110

http://indiankanoon.org/doc/1300809/

Only upon a complaint made by “some person aggrieved” the Court can take cognizance of the offence. Key word “some person aggrieved” is qualified by proviso to S. 198(1) CrPC.

Section 198: Prosecutions for offences against marriages.--

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that-

(a) xxx                       XX                   xxx

(b) xxx                       XX                   xxx

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

If the person aggrieved of offence under Section 494 IPC is the wife, the statute recognises certain close relatives stated therein as “some person aggrieved” who can file a complaint on 'on her behalf.

A look at proviso (c) will show that the statute has made a special provision for the wife in case of two important matrimonial offences falling under S. 494 and S. 495 of IPC only. Statutory language lays emphasis on the words “on behalf of” and has made an exhaustive list of the category of persons qualified by “some aggrieved person” of S. 198 (1) CrPC. Kerala High Court gave a broader field to the same holding that the person so listed need not necessarily file the complaint “on behalf of” the aggrieved wife, but can do so even in his individual capacity.

In Thangamani(supra), question arose whether the complaint ought to be filed only  “on her behalf” and not on their own behalf. Referring to the dictionary meaning of “some”, High Court of Kerala held any person who is a member of the group of "aggrieved persons" can file complaints for offences falling under S. 198 CrPC.

The Ld. Judge held “'some person aggrieved' appearing in Section 198 of the Code are used to include also, persons other than the spouses” and therefore the son of the aggrieved wife can make the complaint on his own behalf, in his individual capacity as a person aggrieved by offence of bigamy. There is no bar in the court taking cognizance of such offence on a complaint filed by him, individually.”

The court reasoned as under:

“8. The general rule in criminal law is that any person, whether aggrieved or not, can set law in motion. Section 198(1) of the Code only carves out an exception to that rule and restricts filing of complaints in matrimonial offences by any person other than those who are aggrieved by such offences. But, that does not mean that the spouses alone are the aggrieved. The section does not create any bar in certain aggrieved persons filing the complaint in matrimonial offences. If spouses alone are intended to be the persons aggrieved, (who can file complaints in offences against marriage) necessarily the expression 'some' in Sub-section (1) to Section 198 of the Code was unnecessary. It was enough if some other expression such as, 'spouses aggrieved', 'either of the persons aggrieved' etc. are used.”

Whether the father of the aggrieved party can file a complaint for the offence under Section 494, Indian Penal Code. Whether 'on her behalf’ would mean the express consent by the party aggrieved?

In Dinesh Kumar And Ors. vs Rasik Bihari Joshi And Anr 1999 (2) MPLJ 88 http://indiankanoon.org/doc/1078057/ Madhya Pradesh High Court held :

The language of this clause is clear that where the person aggrieved by the offence punishable under Section 494 or 495, Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court by any person related to her by blood, marriage or adoption. By the Amending Act, the father is empowered to file complaint on behalf of the wife.

7. …..The words used is "complaint may be filed on her behalf by her father". Therefore, any complaint made by the father shall be deemed to be proper unless it is established by the defence that the complaint was without consent of the aggrieved party i.e. the wife.

8. The consent is to be inferred from the facts of each case. Consent may be express or implied.

Evidentiary Value of Family Arrangement not Stamped not Registered

A.C. Lakshmipathy And Another vs A.M. Chakrapani Reddiar & Ors AIR 2001 Mad 135, (2001) 1 MLJ 1 

http://indiankanoon.org/doc/836133/

After discussing the law prevailing on family arrangement, Madras High Court neatly summed up the position as under at Para 42 :

A family arrangement can be made orally.

(II) If made orally, there being no document, no question of registration arises.

(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.

(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.

(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act.

Partition - Meaning and When Registration Necessary

A partition does not involve transfer of property. A partition with unequal shares does not amount to a gift. Partition can be effected orally. When a partition is reduced to a document stating the division has taken place as narrated in the document, it is not compulsorily registrable. But if the document proposes to divide the properties as narrated in the document, it is compulsorily registrable.

In Sri Jagatram Ahuja vs The Commissioner Of Gift Tax ( link http://indiankanoon.org/doc/46064/): Supreme Court approved the definition of partition laid in Radhakrishnayya v. Sarasamma AIR 1959 Mad. 213 where it was laid as under :

"Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore, no conveyance is involved in the process as a conferment of a new title is not necessary."

The Indian Stamp Act, Section 2(15) defines, (15) "Instrument of Partition ".--"Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition.

In Radhakrishnayya v. Sarasamma @ Para 2 HC held "It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in Section 17 of the Registration Act such document must be registered, notwithstanding with the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same if inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purposes" is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it were registered."

In CIT Madras vs Getti Chettiar 1971 AIR 2410, 1972 SCR (1) 736 (http://indiankanoon.org/doc/466149/) Supreme Court held "we do not think that  a partition in a Hindu Undivided Family can be considered either as "disposition" or "conveyance" or "assignment" or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in s. 2 (xxiv). The court explained salient terms in Gift Tax Act, 1958, S. 2 (xxiv) - "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes .... 

----

"the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of one's property to another for no consideration and "payment" implies gift of money by someone to another."

Supreme Court held in Sri Jagatram Ahuja vs The Commissioner Of Gift Tax (link http://indiankanoon.org/doc/46064/) "the common holding of property by the coparcener is converted into separate title of each coparcener as tenant-in-common. Nor does subsequent partition by metes and bounds amount to a transfer"

In A.C. Lakshmipathy And Another vs A.M. Chakrapani Reddiar & Ors AIR 2001 Mad 135, (2001) 1 MLJ 1, (http://indiankanoon.org/doc/836133/), Madras HC held @ Para 25  "A memorandum or a Chit or a list written and signed by the parties referring to an earlier oral partition which parties intended to be only a record of earlier partition and not a proof of what they have partitioned and how they have partitioned and consequently to claim their rights/title, under the agreement need not be registered."

Legal Right

Ayaaubkhan  Noorkhan  Pathan  v.   The   State   of Maharashtra & Ors 2012 (11) SCALE 39
http://indiankanoon.org/doc/162455222/

“A “legal right”, means an  entitlement  arising  out  of  legal rules.  Thus, it may be defined as an advantage,  or  a  benefit conferred upon a person by the rule  of  law.   The  expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a  person  aggrieved  must therefore, necessarily be one, whose right or interest has  been adversely affected or jeopardized."

Ravi Yashwant Bhoir vs The Collector, District Raigad & Ors
http://indiankanoon.org/doc/84566570/
44. .....A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.

Who is an Aggrieved Person in Law

Corpus Juris Secundum : "Broadly speaking, a party or person is aggrieved by a decision when, and only when it operates directly and injuriously upon his personal, pecuniary or property rights".

The oft-quoted dictum of James, L. J., in Ex parte, Sidebotham, (1880) 14 Ch D 458 states :

"But the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him some-thing, or wrongfully affected his title to something".

S. Govinda Menon vs K. Madhavan Nair And Ors. AIR 1964 Ker 235 http://indiankanoon.org/doc/6910/

"In legal    acceptation    a party    or person  is aggrieved by a judgment,  decree,  or order,  so  as to be entitled to appeal..... whenever it operates prejudicially and directly upon his property or pecuniary rights or interests, or upon his personal rights and only when it has such effect". (Vol 4, P- 356 -- 1st Edn.) 

  

Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra & Ors 

CA 7728/2012

7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons.

Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361).

15. ....a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others.

Will, Gift and Settlement - distinguishing the attributes

Mathai Samuel & Ors vs Eapen Eapen (dead) by Lrs. & Ors CA No 8197 of 2012

11. ...basic  and  fundamental  difference  between  a   testamentary disposition and a settlement.  Will is an  instrument  whereunder  a  person makes a disposition of his properties to take effect  after  his  death  and which is in its own nature ambulatory and  revocable  during  his  lifetime.
It has three essentials:

     1) It must be a legal declaration of the testator’s intention;

     2) That declaration must be with respect to his property; and

     3) The desire of the testator that  the  said  declaration  should  be
        effectuated after his death.

12.   The essential quality of a testamentary disposition is  ambulatoriness of revocability  during  the executants’  lifetime.   Such  a  document  is dependent upon executants’ death for its vigour and effect.

13.   Section 2(h) of the Indian Succession Act says “Will” means the  legal declaration of the intention of a testator  with  respect  to  his  property which he desires to be carried  into  effect  after  his  death”.

16. ....A document which operates to dispose of properly in  praesenti  in  respect of few items of the properties is a settlement and in future in  respect  of few other items after the deeds of the executants,  it  is  a  testamentary disposition.  That one part of the document has effect during the life  time of the executant i.e. the gift and the other  part  disposing  the  property after the death of the executant is a Will.

17.   In a composite document, which has the characteristics of  a  Will  as well as a gift, it  may  be  necessary  to  have  that  document  registered otherwise that part of the document which has the effect of  a  gift  cannot be given effect to.  ...The  document which may serve as evidence of the gift, falls within the sweep  of  Section 17 of  the  Registration  Act.   Where  an  instrument  evidences  creation, declaration, assignment, limitation or extinction of any present  or  future right, title or interest in  immovable  property  or  where  any  instrument acknowledges  the  receipt  of  payment  of  consideration  on  account   of creation, declaration, assignment, limitation or extinction of  such  right, title or interest, in those cases alone the instrument or receipt  would  be compulsorily registrable under Section 17(1) (b) or (c) of the  Registration Act.  A ‘Will’  need  not  necessarily  be  registered.   But  the  fact  of registration of  a  ‘Will’  will  not  render  the  document  a  settlement.

Intention – Guiding Factor:

18.   The primary rule of construction of a document  is  the  intention  of the executants, which must be found in the words used in the document.   The question is not what may be supposed to have been  intended,  but  what  has been  said.   We  need  to  carry  on  the  exercise  of   construction   or
interpretation of the document only if the document  is  ambiguous,  or  its meaning is uncertain.  If the language used in the document  is  unambiguous and the  meaning  is  clear,  evidently,  that  is  what  is  meant  by  the executants  of  the  document.   Contemporary   events   and   circumstances
surrounding  the  execution  of  the  document  are  not  relevant  in  such situations.

30. ....we have .....no  hesitation in holding that so far as that item is concerned, the document  in  question cannot be construed as a settlement or a gift because there is no  provision in  the  document  transferring  any  interest  in  immovable  property   in praesenti in favour of settlees

Affidavit - whether legal evidence (S. 3 of Evidence Act, 1872)

Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra & Ors

http://indiankanoon.org/doc/162455222/

31. ...Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:....

It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908. Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. 

36. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view, stands fully affirmed particularly, in view of the amended provisions of Order XVIII, Rules 4 & 5 CPC. In certain other circumstances, in order to avoid technicalities of procedure, the legislature, or a court/tribunal, can even lay down a procedure to meet the requirement of compliance with the principles of natural justice, and thus, the case will be examined in the light of those statutory rules etc. as framed by the aforementioned authorities.

Specific Relief Act, 1963 - S. 26 - rectification of instruments

Section 26 of Specific Relief Act, 1963:

            Section 26 of the Special Relief Act 1963 (hereinafter  referred to as ‘Act’) provides for rectification of instruments, where  through fraud or a mutual mistake of the parties,  an  instrument  in  writing does not express the real intention, then the parties  may  apply  for rectification. However, clause 4 thereof, provides that such a  relief cannot be granted by the court, unless it is specifically claimed. vs

Joseph John Peter Sandy vs Veronica Thomas Rajkumar & Anr. CA No 2178-2179 of 2004 d/d 12/03/2013 http://indiankanoon.org/doc/156545202/

7. Section  26  of the Act has a limited application, and is applicable only where it  is pleaded and proved  that  through  fraud  or  mutual  mistake  of  the parties, the real  intention  of  the  parties  is  not  expressed  in relation to an instrument.  Such rectification is permissible only by the parties to the instrument and by none else.

Malicious Prosecution

Nagendra Kumar vs Etwari Sahu And Ors AIR 1958 Pat 329
http://indiankanoon.org/doc/285864/

8a. The object of law is the creation and protection of legal rights. Any interference with a man's right, whether with respect to his personal liberty or property is prima facie wrongful. A person as such is prima facie entitled to set the law in motion against any person, who has wronged him, either in person or property, if he does so with an honest intention of protecting his own and the public interest.
It is no doubt true that courts established for administering justice, civil or criminal should be open to every aggrieved person in. vindicating his right, but at the same time everv person has a corresponding right that he should not be harassed by legal proceedings improperly instituted against him. Law is anxious that persons should not be harassed In courts of law.
From motives of public policy, the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for prosecution; but if the person abuses his privilege for the indulgence of his personal spite, he loses the protection and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation by a causeless prosecution.
So, whenever the law has been set in motion, not for the bona fide purpose of vindicating justice, but there is a perversion of the machinery of justice for improper purposes, an action will be maintainable.
9. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results.
The mere presentation of a false complaint which first seeks to set the criminal law In motion will not per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been : othing but an unsuccessful attempt to set the criminal law in motion, but no damage to the plaintiff results.

Laying the information before the Magistrate, therefore, would not be the commencement of the prosecution, unless the Magistrate issues a summons against the plaintiff, and, when once, a summons is issued, the commencement of the prosecution relates back to the laying of the information. The malicious criminal prosecution, therefore, means instituting unsuccessful criminal proceedings against any one resulting in damage to him, if the prosecution is inspired by malice and is destitute of any reasonable and probable cause. 

Conditions of Liability.

12. On being analysed, malicious prosecution resolves itself into the following component parts, and, therefore, the plaintiff must prove to succeed in an action for damages for such prosecution.

(i) The prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the courts are competent to enquire; and,
(ii) that the proceedings complained of terminated in his favour, if from their nature they: were capable of so terminating; and,
(iii) that the defendant instituted or carried on such proceedings maliciously; and,
(iv) that there was an absence of reasonable and probable cause for such proceedings; and

(v) that the plaintiff has suffered damage. 

12b. The onus of proving every one of the above conditions of liability is on the plaintiff.