In 1987, the Section 10B was inserted in the Act through which any property requisitioned by the act has to be released by the State Government on or before the expiry of a period of 25 years from the date od requisition. For the property in question, this 25-year period ended in August, 1998 obligating the state to release the premises. But instead of releasing the property, the property was acquired for the public purpose of providing the permanent office accommodation to WBMDTCL in September 1999. This was done by issuing the notification under Section 4of the Land Acquisition Act 1894.

This notification was challenged in Calcutta High Court where the Bench ordered that the possession of the property to be handed over withing in three months from the order. But the major issue was to determine the compensation. The matter was appealed to the Division Bench of High Court where the court directed that the premises should be vacated and possession would be handed to the defendants withing 3 months.

The Supreme Court on this held that the premises were supposed to be released on or before August, 1998. The State had the time of 11.5 years to act and acquire the property where such acquisition could easily have been done by way of a notification under the section 4 of the Land Acquisition Act before the lapse of 25 years. However, the state failed to do so and after the requisition period elapsed in August 15, 1998, the state issued a notification under Section 4 of the Act.

The Court addressed the determination of the compensation and stated that the unfortunate fact about the present situation is that it was a government body (which comes under the definition of state) was the one which was retaining the unlawful possession of the property for the last 22 years without paying the money.

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Govindbhai Chhotabhai Patel and others vs Patel Ramanbhai Mathurbhai

Background

The appellants were sons of Chhotabhai Ashabhai Patel who died on December 6, 2001. During his lifetime, he executed a gift deed in favor of defendant Ramanbhai Mathurbhai Patel.
The parties went to trial on the following issues:
(i) Whether the plaintiffs prove that the disputed gift deed is fabricated?
(ii) Whether the plaintiffs prove that the suit properties are ancestral properties and late Chhotabhai Ashabhai had no right to execute the gift deed?
(iii) Whether the plaintiffs prove that the defendant has no right, title, or interest over the said property?
(iv) Whether the plaintiffs prove that they are entitled to get the relief as prayed for?
(v) Whether the defendant proves that the plaintiffs have no right to file the present suit?
(vi) What order and decree?

The High Court framed five substantial questions of law and after giving findings on such substantial questions of law, the judgment and decree passed by the learned Trial Court on February 10, 2014, and the judgment and decree passed by the First Appellate Court on October 9, 2017, were set aside.
The findings recorded by the High Court, are that execution of the gift deed was not specifically denied in the suit filed. Therefore, it is not necessary for the Donee to examine one of the attesting witnesses in terms of proviso to Section 68 of the Indian Evidence Act, 1872. It was also held that the suit property is not ancestral property. The property was purchased by Ashabhai Patel, father of the Donor and it was by virtue of Will executed by Ashabhai Patel, the property came to be owned by the Donor in the year 1952-1953. The High Court, thus, held that the Donor was competent to execute the gift deed.

The relevant findings on such questions which arose for consideration in the second appeal read as under:
According to the plaintiffs, the suit properties were purchased by their grandfather and those properties came to be devolved upon their father by Testamentary disposition. The Hindu Law clearly postulates that if it is a self-acquired property of the father, it would fall into the hands of his sons, not as a coparcenary property, but would devolve on them in their individual capacity. Where the property is a self-acquired property of the father, it falls into the hands of his son in his individual capacity and not as coparcenary property in such case son— s son cannot claim right in such property.
The plaintiffs held that the suit properties devolved upon the father of the plaintiffs could not be said tube coparcenary property. The properties were purchased by the grandfather of the plaintiffs, as pleaded and admitted by the plaintiffs themselves. Such self-acquired properties of the grandfather came to be devolved upon the father of the plaintiffs by way of a ‘ will— i.e. testamentary disposition. In such circumstances, it could be said that the properties are self-acquired properties of the father of the plaintiffs. The succession would have been in accordance with Section 8 of the Hindu Succession Act. When the properties could be said to be self-acquired properties of the father of the plaintiffs, then the father could have transferred those properties by way of a gift deed.

Appellants Contention

The appellants submitted that the High Court had exceeded its jurisdiction in the second appeal as findings recorded by the First Appellate Court were not specifically dealt with. It was argued that the interference in the second appeal was contrary to the judgment of this Court in Thulasidhara & Anr. v. Narayanappa & Ors.4. It was argued that the appellants had produced an old revenue record and from the documents, the property was proved to be ancestral, and such was the finding recorded by the Trial Court and the First Appellate Court. It was argued that the findings recorded by the High Court that the property devolved on the Donor by virtue of a Will, therefore, it ceased to be an ancestral property was contrary to the judgment of this Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar & Anr.5. The reliance was also placed upon the judgment of this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors that self-acquired property of a grandfather devolves upon his son as ancestral property.

Respondents Contention:

The Respondents argued that the plaintiffs had failed to prove that the property was ancestral property after admitting that their grandfather had purchased the property and given it under Will to their father to the exclusion of other family members. It was argued that the argument raised by the appellants that the High Court had exceeded its jurisdiction by reversing the findings of fact recorded by the First Appellate Court did not hold good as the very reasoning recorded has been found to be illegal. It was argued that judgment in C.N.Arunachala Mudaliar was to the effect that the property bequeathed or gifted to a son by Mitakshara father will be treated as self-acquired property in the hands of Donee.

Court’s Observation:

The court said that the first and the foremost question required to be examined was as to whether the appellants had proved that the property in the hands of Donor was ancestral property.
The court noted that Govindbhai Chhotabhai Patel (PW-1) had stated, vide, that the property in question was purchased by his grandfather Ashabhai Patel and after the death of his grandfather, the property was owned by the Donor according to the inheritance since 1952-1953. The court thus said that it was the Donor who had acquired the property not as self-acquired property but as ancestral property. The court found that a statement in the cross-examination that there was a partition between the Donor and his two brothers would not make the property ancestral in the hands of the Donor. The Will executed by the father of Donor had not been produced by the appellants to show as to what was intended by his grandfather when the Will was executed in favor of Donor and It was admitted fact that grandfather purchased the property, thus, such self-acquired property came to be bequeathed to the Donor even as per the judgment relied upon by the Appellant.
The court remarked that a bequest by will, therefore, is a gift made in contemplation of death. It only differs from a gift in the fact that it takes effect at a future time instead of immediately. But it must clearly be governed and controlled by the general rules regarding the gift. Now, there is no doubt that a man can give away self-acquired property to whomsoever he pleases, including his own sons; and there is no doubt that property so given would be considered self-acquired in the hands of the donee. It would, therefore, follow that property given by will would equally be self-acquired in the hands of the devisee.’
The court noted that in view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the Will in favor of any person. Since the beneficiary of the Will was his son and in the absence of any intention in the Will, a beneficiary would acquire the property as self-acquired property in terms of C.N. Arunachala Mudaliar case(AIR 1953 SC 495). The court said that the burden of proof that the property was ancestral was on the plaintiffs alone and it was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family to be treated as ancestral property.
The other material question was whether the appellants have specifically denied the execution of the gift deed in terms of proviso to Section 68 of the Evidence Act, to make it mandatory for the defendant to examine one of the attesting witnesses to prove the Gift deed in his favor.
The court noted that a gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882 and that similar is the provision in respect of the execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act,1908 unless the execution is specifically denied.
The court reiterated that though the learned Trial Court had discussed the evidence on the record but in view of the finding that the property is ancestral, no finding was recorded whether the gift deed is forged or not as per the issue framed. The First Appellate Court in a short judgment affirmed the finding of the learned Trial Court. The Trial Court had not returned any finding that the gift deed is forged. Therefore, the High Court was within its jurisdiction to decide Issue No. 1 based on evidence led by the parties.
The court said that specific denial of execution of gift was an unambiguous and categorical statement that the donor did not execute the document. It meant not only that the denial must be in express terms but that it should be unqualified, manifest, and explicit. The court said it should be a certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.
The court said that the Defendants had no case that no document was executed by Anandan Nambiar. Their case was that the document was not valid because it had been executed under circumstances which would render the document invalid.
The court found that there was no specific denial of the execution of the document.
The court found the facts of the present case kin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants had not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed.

Judgment:

As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents. Therefore, the father of the appellants had executed a gift deed in favour of a person who stood by him. The court found that there was no error in the findings recorded by the High Court.

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M/s Arun Kumar Kamal Kumar vs M/s Selected Marble Home

Facts:

The appellants owned a brand name called Nathu’s Sweets and had entered into two separate license agreements, wherein it was decided that the appellants would run and operate the business in the respondents’ premises and the other being payment of commission on sales to the respondents. The dispute arose when the business had come to a halt owing to an incomplete installation of a required electricity connection, which was 2.5 KV, by the respondents. Consequent to this, the operations of the business were discontinued from March 1991 to October 1995.
A suit was filed in the Delhi High Court under section Section 20 of the Arbitration Act, 1940 on grounds of non-payment of commission along with the failure of handing over of the vacant premises to the owner. The court-appointed an arbitrator to adjudicate upon the case, according to whom calculations relating to the commission were incorrect and deliberate, but the issue which came up was ‘whether the respondents were entitled to any damages ?’. The award was challenged by the appellants in the Supreme Court.

Issues:

Whether respondents were entitled to rent and any damages arising out of the course of business?

Legal Provisions:

• Section 20 of The Arbitration Act, 1940
• Section 108 of The Transfer of Property Act,1882

Appellants’ Contention:

The learned counsel submitted that there was no clause in the agreement mentioning any payment of damages on account of the occupation of the premises even when the business was not under any operation. The agreement was confined to payment of commission on gross sales. The erroneous calculations made inadvertently, if resolved, would have arrived at a lesser amount of compensation payable.

Respondents’ Contention:

The learned counsel for the respondent submitted that no mistake was made in the statement of accounts and learned Single Judge of the High Court did not err in concluding that the appellants are liable to pay the damages inclusive of the period when business was not running.

Observations of the Court:

The court after considering the submission from both sides observed that the vacant premises had not been handed over to the respondents until the commencement of arbitral proceedings. In view of the judgment made by Single learned judge, if the respondents were supposedly the tenants then under Section 108 of The Transfer of Property Act,1882, they would have been liable for payment of rent, despite non-working of the business. Therefore, no error was made by the Single Judge and the arbitrator.

Judgment:

The court stuck to the decision rendered by the Division Bench of High Court of reducing the interest rate from 16% per annum to 9% per annum payable from the date of the award till the date of the judgment which is to be duly completed by the appellants inclusive of interest accruing out of the same.

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Pooja Mittal Vs Rakesh Kumar

Abstract

The apex court in the disposition of Pooja Mittal Vs Rakesh Kumar case dated 14th July 2020, has set aside an order specified by the Punjab and Haryana High court while dismissing a revision petition. The dispute was regarding a suit property.

Facts of the case

The appellant, in this case, asked for an interim injunction against the construction of a building by the defendant which he claimed to be his. The Trial court set aside the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure which provides a provision to grant a temporary injunction if the case comes under any of the sub-clauses of Rule 1 and also an injunction to restrain repetition or continuance of breach. Further, the trial court was of the opinion that because the appellant had no evidence regarding the purchase of the First floor over the aforesaid property, therefore the property is owned by the defendant. The appeal was disposed off by the first appellant court.

Judgment

The Supreme Court made the following observation and pronounced the judgment:
• The High court while dismissing the revision application by Rakesh Kumar the respondent against the coinciding opinion taken by the Trial court and the Appellant court rejecting the interim relief application of the plaintiffs (herein the respondents), directed the parties to maintain the status quo with regards to the suit property.
• The SC was of the opinion that the HC did not consider the facts recorded by the Trial and first Appellant court which was in the favor of the respondents herein. The First Appellant stated that “ …In view of the above, the trial Court rightly dismissed the application, as at present no evidence with regard to purchase of the first floor over the suit property in dispute was produced by the appellant/plaintiff. In view of this, judgments referred by counsel for the appellant are not applicable at this stage…..”
• The judgment also upheld that the order passed by the HC regarding the petition which directed the parties to maintain suo moto was not valid as there was no prima facie case was made by the plaintiff for granting of the relief.
• It also stated that as the case is still pending between the parties, it is restricting itself from making any more observations regarding this case.
• It directed the Trial Court to speed up the hearing of the case and pass a judgment, preferably before March 2021.

Case analysis

The order passed by the Supreme Court rectifies the mistake of the High of Punjab and Haryana. The aforementioned court has failed to understand the facts of the case. In Para 9 of the judgment of the First Appellant court, proper facts of the case were discussed with regards to the suit property. It was inferred by the lower court that there was no prima facia case under the subject matter of revision.
The court made findings that the suit property was owned by the defendants and that the plaintiff produced no evidence with regard to purchasing the first floor over the suit property in dispute. The Supreme Court has thus held that the finding of the Trial and the first Appellant court is relevant to the case.

Conclusion

In this case, the court made it clear that the suo moto order should only be passed if the prima facie case is made out. It has also asked the court to fasten the proceeding so that justice is provided to the parties of the suit. The decree passed by the apex court didn’t make any finding in the appeal filed but it disposed off the revision petition.

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V. Kalyanaswamy (D) by Lrs. and Anrs. Vs L. Bakthavatsalam (2020)

Abstract

On 17th July 2020, the Supreme Court passed a judgment for a family dispute that rose in 1955. The SC dismissed all the appeals against the judgment given by the Madras High court in 2007. It also stated that the coparcener has no right to execute a will with respect to Joint Family Property prior to the Hindu Succession Act. The court held that the Will dated 10-05-1955 executed by Late Mr. Rangaswami Naidu was lawful and valid.

Facts of the Case

In this case, Late R. Venkituswamy had two sons, Late Lakshmaiah Naidu and Late Ragaswami Naidu. Rangaswami was married to R. Krishnammal but they didn’t have any children, however, Lakshmaiah had four sons. Both the brothers constituted a Joint Hindu family business. But due to an illness, Rangaswami executed a will in which he bequeathed his share in the Joint Hindu Family property and self- acquired properties in favor of this wife R.Krishnammal. The dispute arose when Rangaswamy’s widow filed a case claiming the title of the aforesaid share of properties and recovery of mesne profits from the defendants (sons of Laksmaiah) who were in possession of the property. The Magistrate under section 145 of the Criminal Code of Procedure gave possession to the defendants. Later a series of cases were filed, which resulted in a compromise decree in 1958. However, the dispute resurfaced when R.Alagiriswamy Naidu and V. Kalyanaswamy filed a suit against the compromise decree challenging the validity of the will on the grounds that the will was executed under coercion, undue influence, and fraud by the Respondent. He also challenged that any will executed by a coparcener of his undivided interest in the Joint Hindu Family Property is illegal and invalid.

Judgment

The Trial Court faced a predicament regarding the authenticity of the will made by Rangaswamy Naidu. Although the trial court held that the will was invalid and unlawful the First appellate Court found it to be authentic. Later when an appeal was filed in the Supreme Court it disagreed with the decision made by the High Court regarding the validity of the will but agreed with the verdict of the High court to be the endmost conclusion based on other aspects of the case. Hence the SC pronounced the judgment dismissing all the appeals.

Rationale of the court

The Court decided the following observation about the validity of the will made by the testator herein the issue of the case:
• The will was an unprivileged will under Sec.63 of the Indian Succession Act 1925. Sec 63 deals with proving a document by a way of secondary evidence.
• In order to test the authenticity of the will one of the attested witnesses named in the will have to prove that the will has been duly executed by the testator in presence of at least two witnesses and that the other witnesses had also attested to the will (Sec.68 of Evidence Act 1872)
• Se 69 of Evidence Act has to be applied if the witnesses mentioned in the will have died, have become insane, etc. Sec71 provides that if a witness doesn’t recollect the execution of the will then some other evidenced has to be used.
• In this particular case the Appellants failed to prove that there was coercion, undue influence, or fraud.

Case Analysis

• The court decided on basis of these provisions that the testator had clearly mentioned in his will all the required details of the properties that would be bequeathed to his wife and the manner in which she has to use and dispose off the properties. Further, as the Hindu Succession Act,1956 was not enacted, Hindus were allowed to leave his joint family property along with his self acquired property to another person. Therefore the apex court dismissed all the appeals made by the Appellants.
• The decision made by the court was justifiable and fair. Appellants didn’t have any proper evidence for the claims they made regarding the validity of the testamentary document i.e the will made by Late Rangaswamy. It was held that the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force.

Conclusion

This case has proven to be a landmark case regarding a coparcener’s right to execute the will and regarding a women’s right over her husband’s testamentary. The case has come to a halt after 65 long years by dismissing all the appeals of the claims made by the appellants against the decision of the Madras High Court.

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Raghubir Singh v. State of Haryana

Facts:

The petitioner had filed of writ petition in 2016 praying that the notification dated 2^nd January 2020, in which compulsory acquisition proceedings were notified issued under the Land Acquisition Act, 1894 (Act 1894) shall be deemed to have lapsed under the provision of sec-24(2) of the Right Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 2013). During the pendency of this petition, two miscellaneous civil applications were filed by the petitioner to withdraw the main writ petition and to approach the respondent-State by filing application under section 101A of the Act 2013 for denotifying the land.

Issues:

• Whether land vested in the State Government for public purpose, and compensation paid to the land-owners can be restituted to the land owners.
• Whether the petitioner can withdraw a main writ petition to approach the state-respondent by way of application under sec-101A of the Right Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Legal Provisions:

• Land Acquisition Act, 1894 Section 11- Enquiry and award by Collector.
• Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Section 24(2)- Land acquisition process under Act No. 1 of 1984 shall be deemed to have lapsed in certain cases.

Petitioner’s Contention:

The counsel for the petitioner prayed to be allowed to withdraw the said writ petition with liberty to approach the respondent-State under sec-101A of the Act 2013, as granted in cases of similar nature. They submitted that sec-101A of the Act 2013, enables the state to denotify an already acquired land if the public purpose for which the land was acquired becomes unviable/non-essential. They stated that sec-101A of the act 2013 appears similar to sec-48 of the Act of 1894, but the two operate in different situations as sec-48 deals with withdrawal from land acquisition proceedings by the State Government in case the possession has not been taken under sec-(16)(17), whereas sec-101A of the Act 2013, deals with the restituting the land to the owners when the land was taken way back and was vested in the state government free from all encumbrances. Before sec-101A, if the collector had taken the land and vested it with the state government free from all encumbrances, the same could not be restituted back to the owners from whom it was acquired, sec-101A was inserted to overcome this difficulty, it gave power to the state government to restitute even after taking possession of the such land. They stated that to avoid prevention of the petitioner from filing petitions to seek benefit of sec-101A of the act of 2013, they have filed this application. They stated that if such liberty was not granted, they would have to file a fresh petition which would cause multiplicity of litigation.

Respondent’s Contention:

The Additional Advocate General of Haryana submits that they have no objection to allow the application for withdrawal of the main writ petition but opposed granting of liberty, as the issue involved in the present petition was settled by the apex court in Indore Development Authority v. Manoharlal and Ors. (2020). The counsel stated that the writ petition was filed by the petitioner as his land measuring 12 bighas was acquired for public purpose, for which he received compensation, thereafter he filed a petition for enhancement of compensation. The petitioner filed a writ petition in 2004 challenging the acquisition proceeding in which dispossession was stayed, the said petition was disposed of by an order dated 9^th September 2008, granting liberty to submit representation to the concerned authority for release of land from acquisition proceedings.

However, by an order dated 3^rd August 2012, petitioner’s claim was rejected and he challenged it by filing a CWP in 2013, which was dismissed with the observation that the petitioner referred to the award of compensation of the land acquired and a regular first appeal was filed for enhancement of compensation against the order of the reference Court. It was held that once the petitioner had accepted the compensation and appeal was filed for enhancement, he was estopped from challenging the acquisition proceedings. Thus, the petitioner approached this High Court by CWP of 2013, dismissed on 21^st May 2013. They also submitted that the petitioner thereafter filed a CWP of 2014, to claim benefit of sec-24(2) of the Act of 2013, which was disposed with the direction to the respondent-State to decide the representation of the petitioner. The petitioner’s claim was again rejected, so the petitioner has filed the present petition. They stated that in both the petitions the petitioner is not entitled for liberty to approach the respondent-State by filing representation under sec-101A of the Act of 2013.

Observations of the Court:

The case was heard before the Punjab and Haryana High Court bench of Daya Chaudhary and Meenakshi Mehta, JJ. The court went through the facts and circumstances of the case as well as the documents on record. The court held that since the State has objection in withdrawing the main writ petitions the application was partly allowed, however the prayer for granting liberty to approach the respondent-State for filing representation under sec-101A the of the Act 2013 was denied, stating that the issue involved in the said petition is already settled by the apex court in in the Indore Development Authority case, whereby the Supreme Court had laid down certain legal principles regarding the scope and interpretation of sec-24(2) of the Act of 2013, so in case possession of land was taken by the authorities and compensation had not been paid, then there would be no lapse of Land Acquisition proceedings u/s- 24(2) of the Act of 2013, similarly if compensation was paid and possession was not taken, then too there would be no lapse.

Also, that a land order who refused to accept compensation or sought reference for higher compensation cannot claim that acquisition proceeding had lapsed under sec-24(2) of the Act 2013. The court noted that the possession of the land was taken by Rapat, which is a valid mode of taking possession and that the land was vested in the State, any person retaining possession thereafter in any manner would be treated as a trespasser. It was observed that under the provisions of sec-24 of the Act 2013, State’s claim and concluded proceedings cannot not be revived or inquired into, and the legality of the acquisition proceedings cannot be challenged. The provision u/s-101A of the Act 2013, enables the State to exercise such power to denotify the land, but does not give any legal right to the land owner to approach the state government to denotify his/her land. The issue before the court was if it can issue a writ of Mandamus to exercise the discretionary power granted under the statue which does not confer any corresponding legal right on the individual.

The court observed as per Halsbury’s Laws of England, order of mandamus is of the most extensive remedial nature, it is a command directed to any person, Corporation or Inferior Tribunal requiring them to do their public duty. The Court refers to the judgment of the apex court in State of Kerala v. Kandanath Distilleries (2013), where it was held that the Court was not to interfere or probe into merits of the decision made by an authority in the exercise of its discretion, the court cannot obstruct discretion of an authority acting under statue, by issuing a writ of Mandamus. Writ of Mandamus can only be issued in favor of an applicant who establishes a legal right in himself and is issued against an authority which has a legal duty to perform but has failed to do so such duty emanating either in discharges of public duty or operation of law. They also noted that granting such liberty to the petitioner to approach the respondent-state, would be against the spirit of the decision given by the Supreme Court in the Indore case.

The Court referred to the case of V. Chandrasekaran and Anr. v. Administrative Officer and Ors, whereby it was held that land once vested in the State free from all encumbrances, cannot be divested. Once land is acquired it cannot be restored to the original owners even if it’s not used for the purpose for which it is so acquired. Under sec-(16)(17), the acquired property becomes property of the government without any limitation of conditions, either as to the title or possession. The court concluded that when the apex court has laid down that after vesting of land in the state, the land owners cease to have any right over the land in dispute, especially when the acquisition proceedings have been upheld, and so no liberty can be given as it would be contrary to the settled law and judgment of the apex court in the present matter. It was noted that liberty was granted only in some cases and not in others, so it cannot be said that liberty was granted in all cases, also no reasoning was given for granting or not granting such liberty.

Judgment:

The applications were partly allowed and permitted to be withdrawn but without any Liberty dismissed as withdrawn.

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The author of this article intends to cover the basics of the implication of Section 41 of the Transfer of Property Act of 1882. In order to truly appreciate this, this article will cover who is an ostensible owner, who falls under the definition of an ostensible owner and its implications, through the relevant Act(s) and with a look into cases that have occurred relating to the same, along with a brief comparison with other jurisdictions.

Introduction

According to the Oxford Dictionary, ostensible is defined as appearing to be true, but not necessarily so. This word is said to have its first usage around the mid-18th century. It is derived from the word “ostensibilis”, which is part Latin and part French, from Latin “ostens”– meaning stretched out to view and from the French verb “ostendere”, wherein “ob” means in view of and “tendere” means to stretch. [1]

Legally speaking, an ostensible owner is a person who seems to be the owner, but in reality, he is not. In other words, he has all the features or benefits that come along with being a real owner.[2] However, this does not mean that is unlawfully occupying the property. This is because it is backed or supported by the real owner being aware of the display of such behaviour.[3]

For example, the husband of the owner of a property, after obtaining her consent, started to deal with the property as though it were his- by recording his name in the revenue documents, deciding upon who gets to be the tenant or not, etc. Herein the husband is the ostensible owner, as it seems as though he was the owner of the property, while the real owner was his wife.[4]

However, for the purposes of this act, the guardian of a minor’s property, managers[5], and kartas do not fall under the category of ostensible owners.

From the above, we see how Section 41[6] that states the transfer by an ostensible owner shares similarities to the rule of estoppel given under Section 115 of The Indian Evidence Act, 1872.[7]

Who falls under the definition of an Ostensible Owner?

It becomes difficult to determine whether a person is a real owner or just an ostensible owing to the fact that he has all the characteristics of a real owner, barring the intention to own the property. Therefore, the court decides this, based on the facts and circumstances of the case.

The Supreme Court has laid down the following criteria to be looked into while deciding such a matter[8]:

• The source of the consideration during purchase.
• Nature of possession after the purchase, in terms of who had possession.
• Motive behind such a transaction.
• Relationship between the parties (the real owner and the ostensible owner).
• Conduct of the parties in dealing with the property (eg. In terms of took care of the property).
• Custody of the title deeds.

In cases now, they have given maximum weightage to the intention and source of consideration paid for the transaction. [9] The other factors only have relative weight when it comes to the burden of proof that the transaction was transacted by an ostensible owner lies, on the person who claims that he is the real owner[10].

What are Benami Transactions and How did the Benami Act come into existence?

Fundamental Rights are those that rights that are considered the very basic requirements of a human, to lead one’s life. The right to property was never considered one of these natural rights because it was a creation of statute.[11] Still, after India’s independence, it was one of the Fundamental Rights granted under the Indian Constitution and falling under the ambit of Article 13.[12]

However, the right to property as a fundamental right was removed as a Fundamental Right by removing Articles 19(f) and 31, in order to achieve the goal of social equal distribution of resources. With the property being one of the most prominent resources, it became necessary to regulate the distribution of resources. Therefore the lawmakers deemed it necessary to get rid away of ways in which property was concentrated with a few hands. [13]

One of the most prominent means of this concentration was a “Benami” transaction- a transaction which would allow a person to hold real ownership rights but could ownership for namesake to someone else. The word Benami was derived from Persian and means ‘without a name’[14].

There a Benami transaction is defined as “any transaction in which property is transferred to one person for a consideration paid or provided by another person.”[15] Benami, therefore, implies holding properties in the name of another, similar to how one would think of guardianship of property (of course, they are different concepts).

History shows Courts questioning the validity and injustice that came along with Benami such as when the court pronounced:[16]

“The practice has long been common in this country for intending alienees of this land to take the document of transfer in the name of their friends or relatives, sometimes in view to defeat the claim of creditors, sometimes in view of defeating other members of their family and sometimes to escape restrictions imposed upon them by Government’s Conduct Rules etc.”

This proved to be counter-effective to acts that aimed at the redistribution of land such as the Zamindari Abolition Act, the Land Ceiling Act, etc. This led to the circulation of illegal money and thus affected the economic and social growth of those who were downtrodden. It took many years to identify what the problem itself was and after much deliberation Benami Transaction (Prohibition) Act, 1988 was passed to effectively tackle Benami transactions.[17]

Although this Act’s objective was to deal with the problem of increased Benami transactions, it was hardly able to control such transactions effectively due to the lack of initiative of the government, rules to implement certain sections, etc. and hence remained largely inoperative.[18] Thus, the Benami Transaction (Prohibition) Bill, 2015 was introduced in order to establish ‘authority’ to confiscate became property.

Are all Benami Transactions illegal?

Benami transaction isn’t illegal per se, because the Section 5[19] does not have a compulsory precondition that states that ‘the transfer in favour of one person may not be in the name of another person’. Thus, Courts are bound to give effect to such transactions if they are within legitimate scope (this necessarily excludes fraudulent and illegal transactions), as they are not violative of the law.[20]

It becomes important to note here that this section is an exception to the general rule of nemo dat quod non habet, i.e. a person cannot transfer a better title than he himself has in the property transferred.[21]

Now, in order to avail the protection guaranteed under Section 41[22], there are certain criteria that need to be met:[23]

• The transferor of the property is the ostensible owner.
• He has the consent of the real owner of the property- either expressed or implied, the apparent ownership must have been permitted by the real owner (who is capable of giving his consent, and with free will).
• There was some form of legal consideration during the transfer.
• The transferee acted in good faith, taking reasonable care and ensuring that the transferor in the first place had power to do so- reasonable meaning that an ordinary man of ordinary prudence would have taken.

Is a Benamdar and an Ostensible Owner the same?

In the case of an ostensible owner, there are indications of ownership in hands of transferor such as title deed, entries in records etc., alongside having apparent and unconditional complete authority to deal with the property as a real owner, which is given by the real owner. Therefore the ostensible owner represents the real owner in the transactions.[24]

However, in the case of a Benami transaction, a Benamdar is merely a name lender and unconditional authority rests with a person who provides the consideration (in the case of an ostensible owner, actual authority rested with him). This difference was also elucidated by the Supreme Court:[25]

“Two kinds of Benami transactions are generally recognized in India. Where a person buys a property with his own money but in the name of another without any intention to benefit such other person, the transaction is called Benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner.

The second case which is loosely termed as Benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner.

The difference between two kinds of Benami transactions lies in the fact that in the former case there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance.”

Post the enactment of the Benami Transactions (Prohibition) Act, 1988, an ostensible owner is a real owner except in certain situations, which restricted the scope of application of section 41. Ultimately, the transferee, who purchases the property from the ostensible owner, cannot take the benefit of section 41 unless the ostensible owner is the wife or unmarried daughter of the real owner.[26]

Landmark Judgments

International case

Twyne’s Case[27]

Initially, taking physical possession of the tangible personal property was a necessity before a person could be certain that his claim was, and would remain, superior to that of others. This principle was affirmed in the case of personal property in 1601 in this case.[28]

In this case, a person had purported to sell some sheep but continued to take care of them and treated them as his own. The court had pronounced the transaction fraudulent, on the ground that it was wrong to sell goods and still keep possession of goods. The sale in itself wasn’t at the question, because the transaction would have been valid had the property been physically transferred at the time of the sale.

The problem with retention of possession (ostensible ownership) ultimately seems to return to a legal rule, governing information as a means of reducing uncertainty. Hence, creditors would be concerned about a debtor trying to get credit by passing off things as his, which really isn’t his. Twyne’s Case provides a legal rule that allows such assurance to be given. The system illustrated in Twyne’s Case depended on a very simple legal rule and hence on minimal government intervention: to obtain priority in an asset over third-party claimants, an individual needed, in addition to the consent of the prior owner, to take physical possession of the asset.

The principle that secret interests in property possessed by someone else are void has shaped the entire law of security interests in personal property.[29] The common justification for the principle is that those who rely on the debtor’s assets, such as the debtor’s other creditors, need an easy way to tell what property the debtor owns. The easiest way to accommodate these parties is to hold transfers of property ineffective against third parties unless possession is also transferred. With this rule, a party knows that no one else has a superior interest in the property in the debtor’s possession.[30]

Therefore a system of notice-filing that sorts out property claims among those who have or seek property claims, could ensure any claims on the property that exists, come to light.[31]

Indian case

Ramcoomar Koondoo v. John and Maria McQueen[32] case

In this case, the plaintiff, inherited the property under dispute, by a will. She came to know that someone else had already purchased this property in her name and sold it to a third party, with a false misconception that he had the title over it. The whole transaction was a ‘Benami’ transaction but was not known to anyone except the person who sold the property. The plaintiff sued the third party for recovery of the possession of the land, but the committee held that:

“ It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself or shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing, either that he had direct notice or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted would have led to the discovery of it.”

It was thereby held that the plaintiff could not take back the property form the third party and in the eyes of the law, the transfer was a legitimate transfer, which is what section 41 essentially states.

Conclusion

Section 41 of the Act has reasonably managed to protect the interests of the innocent third party. Although this section may seem to be lopsided, favouring the third party, such a situation usually only arises, if the real owner is at some fault. Further, it also places the third party with a duty during the purchase of the property and the necessary requirements put by law to keep a check on the misuse of this section by the ostensible owner and the third party. In this sense, it also protects the interests of the real owner.

On the other hand, the 2016 Act is a comprehensive law which not only provides for the mechanism and process for attachment and confiscation of the Benami property but has also enacted the administrative structure for proper implementation of such provisions. In addition to this, it also widened the ambit of Benami Transaction alongside mandating for more stringent punishment. By the 2016 Act, the Government of India has made its intentions abundantly clear that the Benami transactions occurred during the intervening period of 1988 to 2016 are not going to be spared.[33]

Author: Miriam Solomon student of Symbiosis Law School, Pune

[1] Oxford Dictionary, URL link: https://en.oxforddictionaries.com/definition/ostensible.

[2] Kannashi Vershi v. Ratanshi Chauhan, AIR 1952 Kutch 85.

[3] Sonal Singh v. Hukum Singh Chauhan, AIR 2007 (NOC) 2054 (Utr).

[4] DR POONAM PRADHAN SAXENA, PROPERTY LAW, (Lexisnexis, 28^th ed, 2011).

[5] Muhammad Sulaiman v. Sakina Bibi, AIR (1922) All 392.

[6] Section 41, Transfer of Property Act, 1882: “Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.”

[7] Section 115, Indian Evidence Act, 1872: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

[8] Jaydayal Peddar v. Bibi Hazra, AIR (1974) S.C.171.

[9] Radheysham v. Maharaj Bahadur Singh, AIR 1982 Cal (571).

[10] Mahinder Singh v. Pardaman Singh, AIR 1992 Del 357.

[11] 130th Report of Law Commission of India, Benami Transaction (1988).

[12] Article 13, Constitution of India, 1950: Laws inconsistent with or in derogation of the fundamental rights being considered as void.

[13] Siddhi Kudalkar, Benami Transaction Prohibition Act And Its Impact On Law Relating To Property, URL link: http://racolblegal.com/benami-transaction-prohibition-act-and-its-impact-on-law-relating-to-property/#_ftnref2.

[14] Darshan Kadu , What are Benami Transactions in India, India Today (2005).

[15] Section 2(a) , Benami Transaction (Prohibition) Act, 1988.

[16] Panjab Province v. Daulat Singh, AIR 1942 F.C. 38.

[17] Siddhi Kudalkar, Benami Transaction Prohibition Act And Its Impact On Law Relating To Property, URL link: http://racolblegal.com/benami-transaction-prohibition-act-and-its-impact-on-law-relating-to-property/#_ftnref2.

[18] Naresh Mukherjee, But That’s Not Mine!, URL Link: http://www.telegraphindia.com/1110928/jsp/opinion/story_14562807.jsp

[19] Section 5, Transfer of Property Act. 1882.

[20] Bilas Kumar v. Besraj Ranjit Singh, AIR 1916 P.C. 96.

[21] SANDEEP BHALLA, LAW OF OWNERSHIP AND TRANSFER OF PROPERTIES IN India (2017).

[22] Section 41, The Transfer of Property Act, 1882.

[23] Ibid.

[24] Kannashi Vershi v Ratnashi Nenshi, [1952] A.I.R. 85.

[25] Bhim Singh v. Kam Singh, AIR 1980 SC 727 (732).

[26] AVTAR SINGH, THE TEXTBOOK ON TRANSFER OF PROPERTY ACT, 1882, 125 (2nd ed., 2009)

[27] (1601) 76 ER 809.

[28] Douglas Baird & Thomas Jackson, Information, Uncertainty, and the Transfer of Property, 299-321, (The Journal of Legal Studies, Vol. 13, No. 2, 1984).

[29] Peter F. Coogan, Public Notice Under the Uniform Commercial Code and Other Recent Chattel Security Laws, Including “Notice”, (47 Iowa L. Rev. 289, 289, 1962).

[30] Douglas Baird & Thomas Jackson, Possession And Ownership, (Stan L. Rev., 1983).

[31] Douglas G. Baird, Notice Filing and the Problem of Ostensible Ownership, 53-67, (The Journal of Legal Studies, Vol. 12, No. 1, 1983).

[32] (1872) 11 Beng LR 46.

[33] Vijay Pal Dalmia, Benami Transactions In India And Analysis Of The Provisions Relating To Attachment And Confiscation Of Property Under The Benami Transactions (Prohibition) Amendment Act, 2016, URL link:

http://www.mondaq.com/india/x/661234/White+Collar+Crime+Fraud/Benami+Transactions+In+India+And+Analysis+Of+The+Provisions+Relating+To+Attachment+And+Confiscation+Of+Property+Under+The+Benami+Transactions+Prohibition+Amendment+Act+2016.

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This article will talk about the Doctrine of Election within the lenses of Section 35 of the Transfer of Property Act (TOPA).

Concept

As the phrase only says ‘Doctrine of Election‘; ‘Election’, The basic crux is that there is a requirement of selecting an option.

Through an instrument, if I confer two rights on you; and you have to select only one, this mechanism is the Doctrine of Election.

Example

Let’s assume that, I offer you Rs 1 Crore to you. In return, you have to give up your sports car to your best friend. Now you have two options, first one is, if you accept Rs 1 Crore, you have to give up your sports car to your best friend; secondly, if you deny taking Rs 1 Crore, you keep your Car. This mechanism of election is the Doctrine of Election.

The moment he takes Rs 1 Crore, he will automatically give up his rights on his car. He cannot have both of the benefit. This is the crux of the Doctrine of Election.

What is the Doctrine of Election?

It is a doctrine based on an equitable principle which has been conceptualized under Section 35 of the Transfer of Property Act, 1882 (TOPA); and within 180-190 of the Indian Succession Act, 1925. It means to have a choice between the two rights. Selecting one right will render the person ineligible for the other one.

Ingredients of the Doctrine of Election

Following are the ingredients of the valid election[1]

1. A person who has no right to transfer the property, transfers it to someone;
2. On same transaction, it would confer some benefits to the owner of the property;
3. Such owner must elect either to confirm such transaction by accepting the benefit; or dissent such transaction by rejecting any benefit.

Example

I have no right to sell a property which is own by you. I made a deal with some stranger to selling your property to him at Rs 50 Lakhs. In return, I will be giving you a Rs 10 Lakhs as a gift. You are knowing that I have the intention to sell the property for which I am also offering you the gift.

Now you have to elect. If you choose to get the gift of Rs 10 Lakh, the transaction with that stranger will become valid, as you confirmed the transaction. If you reject the gift, that would mean that you haven’t accepted the transaction of the property with that stranger.

Applicability

It applies to persons governed by Hindu[2] as well as Mohammedan law[3]. It applies to both the movable and immovable property. The doctrine of election is founded on the equitable principle that where a person persuades another to act in a manner to his prejudice and derives any advantage from that; then he cannot turn around and claim that he was not liable to perform his part as it was void. It applies where a vendor or a transferor of property tries to take advantage of his own wrong[4]. This principle does not require any ratification.[5] It is applicable in the cases of gift or will and generally does not apply in cases of legal remedy.[6]

Section 35 of the Transfer of Property Act recognizes the Doctrine of Election. It applies where a person professes to transfer property which he has no right to transfer. Similarly, on the principle that a person may not approbate and reprobate, “a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais.

The principle that a person may not approbate and reprobate express two propositions :

(1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and

(2) that he will not be regarded, in general at any rate, as having to elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent”.[7]

Commentary

When is Election necessary?

There will be two transactions, one where the property of the owner will be subjected to the transfer to any third person by non-owner of the property. Other transaction will be where a benefit will be conferred to the owner of the property. If the transaction dealing with the conferment of benefit to the owner is direct as the result of the earlier transaction; then the election is necessary.[8]

Meaning of Benefit

For the election, there need to have a benefit conferred to the owner of the property. There will be no election if he does not obtain any benefit. Moreover, the transferee, in this case, would not get any property as the owner declined to obtain the benefit. The disappointed transferee does not get any compensation as the result of the real owner not obtaining any benefit.

Example

I being the owner of the property came to know that my friend is selling it to B. My friend gave me the offer to have his supercar in return to allow him to sell my property. I declined it. Any loss that B has or might have faced due to the promise of my friend will be on his own risk.

Exception to the Rule of Compensation

Following are the instances:

(1) where the transfer is gratuitous and the transferor has died before the election or otherwise become incapable of making a fresh transfer,

(2) where a transfer is for consideration. Neither the section nor the illustration refers to interest on the amount of compensation.

Belief of Transferor

It will be immaterial. It will not matter whether if the transferor honestly or dishonestly wanted to transfer the property believing it to be his own. The doctrine of election will be applicable in both cases.[9]

Right to Information

The person who is going to do election is entitled to know the relevant information; which would be required for him to come to a decision.[10] If he has a misunderstanding about the value of the benefit, he will not be bound to go for the election.[11] This rule is stricter for purdanashin woman.[12]

What constitute as an Election?

The following rule :—

(1) Acceptance of a benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer. But this is subject to two conditions :

(a)he must be aware of his duty to elect, and

(b)there must be proof of knowledge of circumstances which would influence the judgment of a reasonable man in making election or proof of waiver of inquiry into such circumstances.

(i)Enjoyment for two years of the benefit by the person on whom it is conferred without doing any act to express dissent raises a presumption of knowledge or waiver.

(ii)Such knowledge or waiver may be implied by acts when the person whose property is transferred renders it impossible to place the person interested in the property professed to be transferred in the same condition as if such act had not been done. Hence no person can be put to the election unless he has knowledge of both funds or properties and the necessity of electing.[13]

Forcing the election

If a party is liable or supposed to elect but abstains from doing it; for one year post-transfer of the property, the transferor or his representative may force the election.

Deaths

Death of transferor

The death of the transferor will not affect an election made after his death when the real owner elects to confirm the transfer, but if he dissents from it the benefit relinquished by him shall revert to the transferor’s representative as if it had not been disposed of, subject to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.

Death of transferee

If a transferee dies before the election his representative would be entitled to take the benefit under the transfer for there is nothing so far as the rule is concerned which requires his active part.

Death of the owner of the property before the election

There is no provision in the section when a party bound to elect has died before the election. It is submitted that no election in that event can be made. In England, where a husband devised the wife’s jewels to the wife for life, the remainder to his son, and the wife made no election or to have the jewels as her paraphernalia, it was held that her administrator could not make this claim.[14]

Distinguished from this is the case of a son; who died before his mother under whose deeds of appointment and will an election had to be made by him, where it was held that as between his estate and the disappointed legatees of his mother’s will the latter were entitled to put the son’s estate to the election or, in other words, require the estate to make good the benefits intended for them by the will.[15]

[1] Dhanpatti v Devi Prasad, 1970 (3) SCC 776 (778)

[2] Rajamannar v Venkatakrishnayya, (1902) 25 Mad 361

[3] Sadik Husain Khan v. Hashim Ali Khan (1916) 38 All 627

[4] Prashant Ramchandra Deshpande v Maruti Balaram Haibatti, 1995 Supp (2) SCC 539 (541) : 1995 (2) UJ 305 .

[5] K Shanmugham Pillai v S Shanumugham Pillai, AIR 1968 Mad 207

[6] Nihar v Anath Nath, AIR 1956 Pat 223 (226) (DB)

[7] Prashant Ramchandra Deshpande v Maruti Balaram Haibatti, 1995 Supp (2) SCC 539 (541)

[8] Mahammad Afzal Khan v Ghulam Kasim Khan, (1903) 30 Cal 843 : 30 IA 190.

[9] Coutts v Ackworth, (1870) LR 9 Eq 519

[10] Whistler v Webster, (1874) 2 Ves. 267

[11] Pusey v Desbouvrie, (1734) 3 P. Wms. 315

[12] Husain v Hashim Ali, (1916) 38 All 627

[13] Whistler v Webster, (1794) 2 Ves. 367

[14] Clarges v Albemarle, (1691) 2 Vern. 245 : 23 ER 758

[15] Pickersgill v Rodger, (1877) 5 Ch. D. 163

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Naini Gopal v. Union of India

Facts:

The petitioner- Naini Gopal retired as an Assistant Foreman from the Ordinance Factory at Bhandara with effect from 01-10-1994, the last drawn basic salary of the petitioner was Rs. 2647/- and basic pension was fixed at Rs. 1334/- on the date of retirement. Consequently, as per the 5^th, 6^th and 7^th Pay Commissions the basic pension of Rs. 25634/- was fixed which the petitioner was entitled to receive and was accordingly paid. In August 2019, the petitioner’s pension amount was reduced to Rs. 25,250 with effect from 01-01-2016, and according the respondent no.3- The Centralized Pension Processing Centre of the State Bank of India, directed a recovery of Rs. 3,69,035/- from the pension payable to the petitioner in instalments of Rs. 11,400/- i.e. 1/3^rd of his monthly pension with effect from 01-08-2019. Since, the deduction of the pension was made without the petitioner’s consent or knowledge he filed an application under Right to Information (RTI) Act, 2005 on 01-09-2019 to know the details and reason for deduction of his pension amount during the period 2015-16 and 2016-17.

The petitioner received a reply to this application on 20-09-2019 from respondent no.3 that there was an excess of payment of pension of Rs. 3,69,035/- to the petitioner which was discovered after making a revised calculation. The petitioner, therefore, approached the Bombay High Court seeking relief. The petitioner relied on a communication dated 04-12-2020 issued by the Accounts Officer of the employer stating that pension at the rate of Rs. 26,000/- was correctly notified.

Issues:

• Whether the Bank is empowered to deduct the pension amount to recover the excessive amount paid.
• Whether the petitioner is entitled to restoration of his pension amount.

Legal Issues:

• Constitution of India, Article-21 Right to Life and Liberty.
• Constitution of India, Article-300A Right to Property.

Observations of the Court:

The case was heard by the Bombay High Court Bench of R.K. Deshpande and N.B. Suryawanshi, JJ. The court initially heard the matter on 30-07-2020 and passed an order wherein it asked if SBI acted on its own or on the basis of any instructions issued by the other respondent(petitioner’s employer), and if the Bank has acted without any authority the court would have to impose heavy costs upon them. It further expressed as to how the Bank was not permitting the petitioner from withdrawing the amount from his account; and if any recovery was to be made it would be open for the employer to do the same in accordance with law. The court further stated that it was under the impression that SBI, Nagpur branch had acted on the instructions issued by the petitioner’s employer which is why it made the above-mentioned order. The employer- General Manager, Ordanance Factory, Bhandara who is respondent no.4 filed an affidavit in response to this petition in which it has confirmed the employment and retirement details of the petitioner; it submitted that respondent no.2 had issued a revised PPO under which the pension was revised to Rs. 25,250/- w.e.f. 01-01-2016. They also submitted that PPO’s were being sent directly through email by respondent no,2 to respondent no.3, and respondent no.4 had not issued any order for recovery of any amount from the petitioner’s pension. 

The respondent no.3- State Bank of India filed a reply in which it stated that the petitioner’s pension was revised as per the 6^th C.PC, however the respondent bank calculated the same as payable to a personnel below Officer Rank (PBOR) instead of as a Civil Pensioner, thus an excess of Rs. 872/- per month was paid to the petitioner since October 2007 due to a technical error in the system. They also stated that they received no memo from respondent nos.2 and 4 for enhancing the pension to Rs. 26,000/- and that they had taken this matter up with respondent no.2 on 07-08-2020. They stated that the petitioner had submitted that due to an oversight an amount of Rs. 3,69,035/- was paid in excess by the bank, which was being recovered over a huge period of time and till date the bank had only partly recovered the amount, Rs. 42,042/- and a nominal interest thereon was yet to be recovered. The respondent relied upon the RBI circular  dated 17-03-1026 in which it was stated that in case of pensioner’s inability to pay the amount, the overpayment can be recovered from his future pension payments in instalment of 1/3^rd of net (pension + relief) payable each month unless the pensioner gives written consent to pay higher instalment amount. On the basis of this clause the bank claimed to have authority to recover the excess payment made to the pensioner, they relied on the judgement in the case High Court of Punjab and Haryana and Ors v. Jagdev Singh (2016). 

The court observed that the stand taken by the employer- the competent authority is clear in stating that the fixation of pension of petitioner was correct, employer supported the petitioner’s claim and had no role in reduction of the pension or its recovery. The court was of the view that the Bank had no authority to fix entitlement of the pension amount of the employees and therefore, held the action of the Bank to reduce the pension to be unauthorized and illegal, the bank had even failed to demonstrate any technical error in the calculations. The court held that in fact there was no excess payment made to the petitioner and the question of applicability of the RBI guidelines or undertaking given by the petitioner does not arise and so the decision of the apex court in the Jagdev Singh case would not apply to the facts of the present case. The court also criticized the action of the bank as arbitrary and in violation of the principles of natural justice and so cannot be sustained. The court observed that the Bank committed a breach of trust of the petitioner; it also clarified that if there was a technical error in calculation other than of entitlement, committed in excess payment, the Bank cannot recover it and the court held that no such was made out here.

The court also held that pension payable on superannuation is ‘Property’ under Article-300A of the Constitution and also constitutes a ‘right to livelihood’ under Article-21 of the Constitution. The deprivation of even a part of this pension amount cannot be accepted except under authority of law. The court also observed that Article 41 and Directive Principles of the State Policy create an obligation on the state to protect and preserve the interests of senior citizens and other weaker sections of the society. The court took note of the plight of senior citizens especially when it comes to their security and the difficulty they face in accessing banking facilities, it has called for Banks to create appropriate facilities and set-up mechanisms to make the process easier and safer for senior citizens.

Judgement:

The court allowed the petition. The court restrained the Bank from recovering any more amount from the pension payable to the petitioner; and directed them to immediately credit Rs. 3,27,045 recovered from the petitioner’s pension account with an interest rate of 18% p.a. from the date of recovery of each instalment till the date to credit of this amount in the petitioner’s account. It further directed respondent no.3- the Bank to pay compensation of Rs. 50,000/- to the petitioner attracting costs of Rs. 1000/- for each day’s delay.

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INTRODUCTION

Although there have been immense developments in India but the mindset of some people still remained the same on women’s power to inherit the property. During the medieval period, women were treated in equal footing with men in their right to inheritance. However, with changing societal norms, it was assumed that females are weaker sections of the society who cannot protect their property in the same way as males can.

Recently, in August, 2020, the Supreme Court declared that a daughter’s right in the ancestral property of a Hindu Undivided Family is equal to that of a son and these rights can be claimed by a daughter even if her had father died before September, 2005 (date of amendment of Hindu Succession Act).

Sisters who have so far been deprived of an equal share in their deceased father’s ancestral property will can now claim their dues. Since a coparcenary only ascertains who its members are and does not fix the shares, a preliminary decree can be altered to now ensure equal shares for all daughters.[i]

This article aims at studying the evolution of daughter’s property rights in India from the enactment of Hindu Succession Act, 1956 till today.

BACKGROUND

With the enactment of Hindu Succession Act, 1956, the daughters were granted certain rights on property inheritance. However, the Act was still male dominant in several areas. Section 23 of Hindu Succession Act, 1956 disentitled a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein.[ii]

There were also discriminations related to Mitakshara coparcenary as Section 6 of Hindu Succession Act concerns only male members of the family. The proviso to Section 6 is also gender biased in nature. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution.[iii]

Sita Ram Jajjoo of Madhya Bharat in one of the parliamentary discussion stated, “Here we feel the pinch because it touches our pockets. We, male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this House.”[iv] However, this was not agreed by anyone.

STATE AMENDMENTS

In several states like Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra, the State Amendments in the 1956 Act were made to extend equal rights to the daughters belonging from Mitakshara coparcenary property. An amendment was made on 30^th July, 1994 by insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In the State of Andhra Pradesh, the amendment was made with effect from 5^th September, 1985, Tamil Nadu with effect from 25^th March, 1989 and Maharashtra with effect from 26^th September, 1994 by the addition of Section 29A in the 1956 Act. In Kerala, the Act was enacted in 1975.

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

The Hindu Succession Act was amended in the year 2005 thereby, removing the discrimination contained in Section 6 of the 1956 Act. According to the amended provisions, daughters have equal rights in the Hindu Mitakshara coparcenary property as the sons. Section 6(4)[v] provides that a daughter is liable in the same manner as a son under the Hindu Law to discharge the debts. Further, disentitlement of female heir from asking partition in respect of dwelling house under Section 23 of the Act was completely omitted by the amending Act.[vi]

By deleting Section 4(2) of Hindu Succession Act,[vii] women’s inheritance rights in agricultural land became equal to that of men. In the north western states, these laws were highly gender unequal and gave primacy to male lineal descendants in the male line of descent. Women came very low in the succession order and got only a limited estate.[viii]

RIGHTS OF HINDU DAUGHTER IN CASE OF INHERITANCE OF FATHER’S ANCESTRAL PROPERTY

Although in 2005, daughters got the right of inheriting ancestral properties, it was subject to certain restrictions. The Supreme Court in Prakash & Ors v. Phulavati & Ors (2015) ruled that “a daughter can only hold a right to the ancestral property if the father has died after this amendment came into force in 2005”.[ix] This implied that the father would have to remain alive till September, 2005 for the daughter to become a co-sharer of his property along with the male siblings.

However, in the case of Danamma @ Suman Surpur v. Amar (2018),[x] it was observed that the two daughters in the matter would get a share of the property, even if their father had passed away in 2001.

In November, 2018, a three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments and decided that there is a need for these laws to be settled.[xi]

After the 2015 judgment was delivered, a number of appeals came up before the Supreme Court on whether the amendment to the Hindu Succession Act, 1956, granting equal rights to daughters would have a retrospective effect. Finally in August, 2020 the apex court held that the daughters like sons have an equal right to inherit joint Hindu Family Property by virtue of their birth. The court also observed that the amended Hindu Succession Act, which gives equal rights to ancestral property, will have a retrospective effect.[xii]

Quoting the precedent of Savita Samvedi (Ms) & Anr v.Union of India & Ors, Justice Arun Mishra observed that-

“A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life.”[xiii]

The court stated that the “statutory fiction” of partition created by the proviso to Section 6 of Hindu Succession Act, 1956 did not bring about the actual partition or disruption of coparcenary.

Previously, there was a provision for “oral partition” with the burden of proof on the person who claims there was a verbal division. However, after the amendment of Section 6(5) of the Hindu Succession Act, 2005 it was observed that oral partition can no longer be accepted and there must be a registered deed or a court decree (but for exceptional situations, oral partition can be considered with support of public documents).

Regarding the suits and appeals pending before the High courts and Subordinate Courts across the country on this particular matter, the Supreme Court held that all of them shall be decided within a span of six months.

[i] https://thewire.in/law/hindu-personal-law-gender-equality-ancestral-property-coparcenary-supreme-court

[ii] Section 23 of Hindu Succession Act, 1956

[iii] Section 6 of Hindu Succession Act, 1956

[iv] The Constituent Assembly of India (Legislative) Debates, Vol. VI, 1949, Part II

[v] Section 6(4) of Hindu Succession Act, 2005

[vi] See, Hindu Succession Act, 2005

[vii] Section 4 of Hindu Succession Act, 2005

[viii] 174th Report of the Law Commission of India on “Property Rights of Women: Proposed Reform under the Hindu Law”.

[ix] Supra note i

[x] Danamma @ Suman Surpur v. Amar, (2018) 3SCC 343

[xi] https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/

[xii] “Daughters have equal birthright to inherit property: Supreme Court”, The Hindu, 11^th August 2020

[xiii] Vineeta Sharma v. Rakesh Sharma & Ors, CIVIL APPEAL NO.  DIARY NO.32601 OF 2018

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