Ancestral property

source:

1. http://sbn-caselaw.blogspot.com/2007/05/cases-on-sale-of-immoveable-property.html
   
2. http://sbn-caselaw.blogspot.com/2007/06/case-law-on-properties-of-joint-family.html
   

The mere fact that the properties were not separately entered by the coparcener in the book of account or that he did not maintain a separate account of earnings from these properties would not deprive the properties of their character of self acquired properties. AIR 1976 SC 1715.



Where ancestral property which is sold in execution of decree against the karta is subsequently acquired by a coparcener with the aid of his own funds, the property would be treated as the self acquired property of the co-parcener. Revappa case AIR 1960 Mys 97.


The burden of proving that any particular property is joint family property is on person who on first instance claims it as so. AIR 1960 SC 335. Only after the possession of adequate nucleus is shown, the onus shifts on to the person who claims the property as self acquired, affirmatively to make out that the property was acquired without any aid from the joint family estate. AIR 1969 SC 1076. One of the tests in determination of the adequacy of the nucleus is the income which yields. AIR 1984 SC 1171.



Where the manager of HUF claims that what is acquired is his separate property he should prove that he acquired it with his separate funds. AIR 1961 SC 1268, AIR 1969 SC 1076. Where there is an acquisition by the manager in his own name and there is no independent source of income, the presumption arises that the new acquisition was joint family property. AIR 1954 SC 379, AIR 1959 SC 906.



If the admissions are made by a member, then the onus shifts on him to prove that what he admitted is not true. AIR 1961 SC 1268.

The principle of Mitakshara Law that sons have independent co-parcenary rights in the ancestral estate and that father is subject to their control in he alienation of family property has been almost destroyed by the principle which has been established by the decisions that sons cannot setup their rights against their fathers alienation for an antecedent debt or against his creditors remedies for their debts, if not tainted with immorality, though not incurred for the family necessity or benefit. AIR 1952 SC 170. The concurrence of all the adult members is conclusive presumption of law. AIR 1951 Mys 38.FB.

The settled law through decisions of Privy council and various High courts is that “ A sale or mortgage of family property by the managing member is valid on the ground of justifying family necessity where it is: (a) For the payment of decree debts and other debts binding on the family. (b) To pay off the claims of Govt on account of Land Revenue, cesses, taxes and other dues. (c) For the payment of rents due to the landlord or the payment of decrees for arrears of rent obtained by land lord against family. (d) For the maintenance of members of the family. (e) For the purpose of defraying the expenses of the first marriage of the co-parcener and of daughters born in the family. (f) For the expenses of the necessary family ceremonies including funeral and annual shradha. (g) For the expenses of necessary litigation in connection with the recovery or protection of the joint estate or the establishment of adoption of his minor son. (h) For the expenses of defending the head of the family or any member against a serious criminal charge. (i) For the purpose of carrying on an ancestral trade or business. (j) To raise money to avert a sale or destruction of the whole or any part of the family property. (k) For the expenses of necessary repairs to the family residential house or family properties and for the protection of fields and lands belonging to the family from floods etc.,

Managers discretion regarding legal necessity or benefit of the estate can be subjected to judicial review. AIR 1964 SC 1385.

It is not open for a coparcener to sue for injunction restraining the manager from alienating on the ground that it is not for legal necessity or benefit. B.C.Ray, Justice however observed that injunction may be granted in case of waste or ouster. Sunil kumar case: AIR 1988 SC 576.

Gift by a manager even of a small extent of Joint family property to a relative out of love and affection is void as it is not a gift for pious purposes ( i.e religious and charitable purposes ) within the meaning of that expression in Hindu Law. Guramma v/s Mallappa AIR 1964 SC 510. see also AIR 1967 SC 569. A gift to a concubine or stranger is void. AIR 1980 SC 253.

In Krishnamurthy v/s Abdul khadar case AIR 1956 Mys 14 Where the property is acquired by the managing member and all the members of the family are in possession of the family property, it could very well be presumed that the new acquisition is family property.

Hindu Law:- Husband, wife and children living together constitute joint family. Property acquired by members of such joint family is presumed to be joint family property or coparcenary property not withstanding fact that it was acquired without the aid of ancestral nucleus, unless contrary is proved. Parties by their conduct and treatment of property in their hands, can impress self acquired property with character of joint family property with character of joint family property. Krishnamurthy case before KHC reported in 2005(3) KarLJ 420.

Property Transfer

1. A transaction would be a sale only if the entire consideration is money. — P.R. Srinivasan v The Corporation of the City of Bangalore, 1957 Mys. L.J. 418 : ILR 1957 Mys. 167.


2. Incorrect recital regarding consideration by itself does not lead to an inference that intention of parties was to convey title only on payment of consideration, or price can be promised or paid at a later date also — Explained. — G. Hampamma v K.S. Kalingappa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.



3. Dower due to a Muslim wife from her husband is valid consideration to support a sale in favour or the wife in payment of the dower. — Union of India v K. Mohammed Hussain, 1966(1) Mys. L.J. 279.



4. Muhammadan Law — Hiba-bil-iwaz — Gift for consideration is no gift but sale — Transfer of property by Muhammadan husband to his wife in settlement of her claim of mahr or dower debt is sale and not hiba or gift — If property so transferred is immovable property of value of one hundred rupees or upwards, title to property can be conveyed only by registered instrument, and not by mere oral agreement followed by delivery of possession — Where Muhammadan wife was put in possession of immovable property by her husband in settlement of his dower debt, and transfer was not effected by registered instrument, but only by oral agreement, there is no conveyance of title in favour of wife, and consequently sale effected by wife subsequently to third party is invalid. Held: A gift given in lieu of mahr, if not registered within the meaning of Section 17 of the Registration Act, such a gift is invalid in the eye of law. — Smt. Marembi and Others v Umar sab and Another, 1998(4) Kar. L.J. 643.



5. Oral sale of immovable properties over Rs. 100/- in value is of no effect and cannot be specifically enforced. — Mallangowda and Others v Gavisiddangowda, 1959 Mys. L.J. 261 : ILR 1958 Mys. 746 : AIR 1959 Mys. 194.





6. The fact that under Section 54 of the Transfer of Property Act, a sale of property of the value of less than Rs. 100 could be effected by mere delivery of possession does not mean that when parties choose to write out an instrument of sale, such an instrument need not be registered and the unregistered document cannot be used to make out the character of the possession. Section 49 of the Registration Act and Section 54 of the Transfer of Property Act prohibit such use. The vendee can prove by independent evidence that he is in possession of the property, which formerly belonged to somebody else, and that his possession can be traced to delivery of possession by that other person pursuant to a transaction of sale. The benami nature of a transaction or that the real title vests in the claimant has to be proved by evidence a acceptable to a Court of law. Where the documents relating to the property are inadmissible in evidence, custody of those documents by the claimant cannot have any value. In a case where the circumstances and arguments relied upon by the claimant are equally available to the alleged benamidar, the only safe course for the Court is to give effect to documents relating to the property which are registered as required by law. — K. Thimmiah v B.H. Nanjappa, 1965(1) Mys. L.J. 44.






7. RIGHT OF RECONVEYANCE Where the right to get a reconveyance was personal to the promisee, it is a personal right and cannot be transferred. — Thippaiah v Mallamma, ILR 1973 Mys. 738.






8. ABSENCE OF PROOF OF PAYMENT OF SALE CONSIDERATION — SALE NOT INVALID It is well-settled principle of law that a deed of transfer of immovable property whether by sale or mortgage which has been executed according to law and has been registered, becomes operative to pass on the title and the property from transferor to the transferee, namely, from the vendor to the vendee or the like, and further even if in a deed, where, it is mentioned that consideration expressed in the conveyance has been paid, but, as a matter of fact, it has been found that it has not been paid, does not render the transaction to be void for want of consideration. Once the transferring of immovable property has been done by a registered document, transaction becomes complete and effective and the passing of title or interest is not postponed, even till the future date of payment, until and unless there is an express covenant or term to that effect, in the deed, agreed between the parties. If the consideration has not been paid, then it is always open to the vendor to realise the consideration by legal means. The deed in the present case does not show by any of its terms that the passing of interest or title in the property had been postponed, instead, it is provided that vendor by this deed transfers and conveys the absolute ownership of the property. So, the deed unambiguously appears to be a sale deed. This deed does neither contain any term in writing in it to indicate that the property transferred is a security and the transfer of interest thereunder is suspended, nor does it provide that after the repayment of the alleged loan, the property will stand or be reverted or be reconveyed. No such term is contained therein. — Dr. ]acob Ijjzarus Chelly v Dokka Samuel, 1995(5) Kaj. L.J. 692A.




9. Consideration need not be solely money consideration though in an agreement, sale price is the main consideration — If there are other considerations also by way of reciprocal promise then a party chosing to enforce the contract cannot dissect the same into two parts, namely, one which is favourable to him and the other which is unfavourable/inconvenient to him — merely becasue definition of sale is restricted to payment of prices the argument that the other consideration cannot be considered as part of the agreement held to be not acceptable. — Indira Rai v Pamshumm Kallappa Hande, ILR1988 Kar. 1307.





10. HOUSE PROPERTY WITH 'COMPOUND' According to dictionary meaning, compound is an enclosed space with whatever buildings there are on it. Since it is enclosed there is little point in speaking of a compound wall. In the instant case, the sale deed describes the property in the schedule as house property with compound, etc. Therefore, it is clear that the property sold is with compound which means "compound wall". Compound by itself is used to refer to the wall. Therefore, absence of the word "wall" after the house property with compound in the schedule cannot be made much of. In cities sometimes all the four walls of the compound may not be owned by the owner of the house which is enclosed with a compound. But when the property sold under a sale deed is described as house property with compound and if one takes the dictionary meaning of the word "compound", no further explanation is needed to clarify that the house property and the enclosing compound wall are together sold under the sale deed. It is not open to interpret that the walls of the compound do not belong to the vendor. — Devikarani v Venkatesha Sastry, 1994(5) Kar. L.J. 99A.




11. Sale of immovable property — Execution and registration of sale deed — Plea that consideration is not paid the vendee not put in actual 'possession — Remedy — Non- payment of consideration by itself does not render the sale imperfect or invalid; remedy to vendor is for recovery of the amounts and not for declaration of title and possession — If actual possession not delivered to vendee, open to vendee to sue for possession — Explained. — Sint. Therojamnia & Another v D.H. Sadashivaiah, 1990(3) Kar. L.J. 504.



12. Future payment of consideration does not arrest passing of title if instrument registered — Title gets conveyed as soon as instrument with stipulation of consideration is registered — Non-delivery of possession does not affect conveyance of title — Delivery of possession not , essential ingredient — Right to possession incidental to right of ownership -Conveyance of title if dependent upon passing of consideration, passing of title deferred till payment of consideration — Explained. — G. Hampamma v K.b.Kalingapa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.



13. The plaintiff had entered into the transaction in question in order to liquidate the loan which he had taken from the defendant-Bank. The document also discloses that the transfer was made for a consideration which could have been best fetched. The plaintiff in the document also admits that Rs. 3,000/-which was over and above the debt of the Bank was received by him in cash. So far as the provision for reconveyance is concerned it was agreed that if the plaintiff repays Rs. 13,000/- along with all the expenses which the respondent-Bank had incurred by way of insurance charges, taxes, repairs, etc., within 5 years, then the respondent-Bank will be obliged to reconvey the property in his favour. The transaction in question was entered into between the parties not in order to establish the relationship of debtor and creditor but was entered only with the sole purpose of liquidating the existing loan. The document is in fact a document of conveyance or sale with a condition to repurchase. — Basappa Shivalingappa Revadigar (dead) by LRs. v Karnataka Bank Ltd., Kundgol, Dhanvad, 1994(5) Kar. L.J. 463.


14. If a sale property of less than Rs. 100 in value is effected by delivery of possession, that sale is as provided by Section 54 of the Transfer of Property Act, a valid sale. It is not rendered invalid by reason of the execution of an unregistered instrument of sale recording it. — Govindappa and Another v Vishivanath alias Eshwarayya, 1961 Mys. L.J. 528 : ILR 1961 Mys. 942.








15. Title to property covered by a decree for specific performance passes only on the execution and registration of the sale deed and not from the date of the decree or the date of the deposit of the purchase money.In the absence of some provision in the sale deed to the contrary, title passes with the execution and registration of the sale deed. A sale deed which is executed by the Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment-debtor and the sale deed so executed has got all the characteristics of a transfer inter vivos. — Mrs. Christine Pais v K. Ugappa Shetty, 1965(2) Mys. L.J. 692.




16. Municipal Property Register is not title deed. Land Revenue Patta is not. — Hazarat Asmruddin Durga v Hussein Ktian Saheb, 1966(1) Mys. L.J. 772.






17. Where the defendant purported to sell certain sites and convey title therein to the plaintiffs and it was not disclosed in the sale deeds that the Sy. No. in which the sites were situate had vested in the Government under Section 3 of the Inams Abolition Act and that the only right the vendor had in those sites was to apply for being registered as occupant thereof and that he was transferring only such right to the plaintiffs. Held, there was a breach of the duty on the part of the vendor under Section 55(l)(a) of the Transfer of Property Act and the plaintiffs were entitled to avoid the sale and claim refund of the price paid by them. — Hanumappa v Munithimmiah, 1974(1) Kar. L.J. Sh. N. 298.


18. In a suit for damages for breach of the implied warranty under Section 55(2) of the Transfer of Property Act, the non-production of the sale deed is immaterial, where no contract to the contrary is pleaded. Even if the vendee knew the defect in the title of the vendor, still he can avail himself of the statutory warranty. In such a suit, the cause of action arises on the date of dispossession and not on the date of the sale deed. — Basappa v Kodliah, 1958 Mys. L.J. 491: AIR 1959 Mys. 46 : ILR1958 Mys. 237.



19. Contract of sale — Vendee's revocation of — Vendor's defective title as ground for — Such ground is available to vendee to revoke contract even if he had prior knowledge of defective title — Even where contract of sale is completed, vendee is entitled to cancel contract and seek refund of purchase money, as statutory provision deems implied contract for title — Where contract is only at executory stage, vendee cannot be compelled to purchase, on ground that he was aware of defective title at time of entering into contract of sale. The provisions of Section 55(2) of the Transfer of Property Act deem implied contract for title and even in cases where there is a completed contract of sale, the purchaser is entitled to cancel the contract and seek the refund of purchase money. .... It is also open to the parties to waive the implied warrantee of title by a contract to the contrary. However, in a contract where it is only at an executory stage, it would not be proper in law to force upon the purchaser to purchase the property on the ground that he was aware of the defective or imperfect title at the time of agreement of sale. It does not prevent in law for the purchaser to revise his opinion before the contract is concluded however with a qualified liability on the purchaser to compensate any loss or damages which the vendor has sustained in the course of such transaction for which the purchaser has equally contributed by his folly. — R.L Pinto and Another v F.F. Menzes and Another, 2001(3) Kar. L.J. 571C (DB).


20. Section 55(4)(a) has no application to a case where in respect of the transfer of property the prospective buyer is put in possession of the property. Such a case is governed by the equitable principle on the basis of an implied agreement arising out of taking over possession without paying the consideration amount. Where immediately after agreement the prospective buyer is put in possession, the vendor is entitled to interest on the unpaid purchase money. The circumstance that the vendor could not remove the doubts over his title cannot be such a conduct on his part, which suffices to relive the purchaser from the liability to pay interest wholly or in part. — Malkajappa Bhimappa Bennur v Bhimappa Kashappa Parasannavar, 1965(2) Mys. L.J. 229.



21. Section 55(4)(a) is based upon an established rule of law that it is the part of the right of the owner of the property to receive rent and profits of the property owned and that right continues until the title or ownership is lost. As the agreement of sale does not confer any title or transfer any title in the suit schedule property agreed to be sold, and the title continues to vest with the owner/vendor of the property agreed to be sold, evenafter the agreement of sale, it is governed by Section 55(4}(a) of the T.P. Act. — B.R. Midani v Dr. A.B. Asivathanarayana and Others, 1992(3) Kar. L.J. 207B (DB) : ILR 1992 Kar. 2224 (DB).




22. Mere agreement of sale does not have the effect of creating or vesting title in the plaintiff of the suit property. As per Section 55(4)(a) of the Transfer of Property Act, the seller is entitled to the rent and profits of the property till the ownership thereof passes to the buyer. — G.M. Chinnaswamy v Smt. P.K. Prqfulla, 1992(3) Kar. LJ/186B (DB) : ILR 1992 Kar. 2294 (DB).



CASE LAW ON GIFT OF IMMOVEABLE PROPERTIES


ACCEPTANCE OF GIFT BY DONEE — INFERENCE.

There is nothing in Section 122 of the Transfer of Property Act to show that acceptance of a gift should be express. Where the donee knew about the gift, being present at the time of registration of the gift deed and did not object to it, it can safely be inferred that the donee accepted the gift. — Lingaiah v Siddamma and Others, 1982(1) Kar. L.J. 34.


CONDITIONS IN GIFT DEED

If donor has voluntarily executed the deed and donee has accepted during his lifetime, any condition imposed on donee for full and proper enjoyment of property gifted becomes void while validity of gift deed remains intact — not control passing of title in favour of donee — D. Venkatesha Cowda v State of Kamataka and Others, 1990(1) Kar. L.J. 242.

Recital as to maintenance in gift deed in absence of specific recital reserving rights to revocation on failure to perform condition mentioned in gift deed — Held, cannot have the effect of making the gift a conditional gift enabling donor to revoke the same on failure to perform such condition. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

Recital as to maintenance in a gift deed in the absence of specific recital reserving right to revocation on failure to perform condition mentioned therein — Held, not a conditional gift deed — Only remedy available to the donor is to enforce the condition in a Court of law — Donor cannot unilaterally cancel the gift deed. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

The super adding of a condition to a gift is permissible in law under Section 31 of the Act and acceptance of a gift by the donee is necessary for rendering the gift valid in law, therefore, when a donee accepts a gift which is burdened by a condition that a superadded, it is nothing but a donee agreeing to that condition and therefore, the consequences provided in Section 126 of the Transfer of Property Act will have to follow — Defeasance clause would not always affect the rule of perpetuity — It depends on facts and circumstances of each case. — Govindamma v Secretary, Municipal first Grade College, ILR 1986 Kar. 1175.



GIFT — DELIVERY OF POSSESSION.
Under the Transfer of Property Act, it is not necessary that possession of the property gifted must be delivered forthwith. Thus, where under a document the right, title and interest in the properties were vested in the donee, he becomes absolute owner, though delivery of possession is postponed, and hence the document is not a will. — Parvati and Another v Mrutyunjaya Gurupadayya and Another, 1983(1) Kar. L.J. 14.



REGISTERED GIFT DEED — DENIAL OF EXECUTION

Registered gift deed — Denial of execution of, by person by whom it purports to have been executed — Burden of proof of execution is on party relying upon deed and burden has to be discharged by calling at least one of attesting witnesses to prove execution — Where burden has not been discharged, deed cannot be used as evidence of gift. Held: Section 123 of the Transfer of Property Act, requires the specific mode in the matter of execution of gift of immoveable property. That gift of immoveable property can be made only by the execution of the registered deed attested by two witnesses. .... The law prescribes the specific mode that it must be effected by a registered instrument or deed signed by or on behalf of the donor and attested by at least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the production of at least one of the attesting witness to prove its execution. Compliance with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make gift deed admissible in evidence. .... None of the attesting witnesses of the deed has been examined in this case to prove the execution thereof. The deed dated 29-11-1960 could not be used as evidence and its execution cannot be said to have been proved. — Smt. Flora Margaret v A. Larwence, 2000(6) Kar. LJ. 27B.


MODE OF TRANSFER

Gift — Transfer of property under — Mode of transfer — Gift deed may provide for transfer of existing property to donee at future date and/or on happening of certain events — Intention of donor to be gathered by reading deed as a whole — No word thereof to be ignored as meaningless — Effect to be given to every part of deed — Where gift deed in favour of two minor donees jointly concludes with words "you shall enjoy property and live as you wish after you have attained majority and got married", the words to be interpreted that gift would take effect oniy when donees marry on attaining majority — Property not conveyed to donees as marriage between them did not take place. Held: A reading of Section 123 along with Sections 122 and 5 of the Act, it appears to me that in the matter of gift also, transfer or conveyance of the property may be provided to take place in present or in future. The gift deed may also provide that the transfer may be effective on the happening of certain conditions in future. In other words, person making the gift may provide that the interest in gifted property will stand conveyed or transferred as per deed either in present or in future. In the deed, it has to be looked into to ascertain the intention of the parties, whether the transfer has been effected in present or in future, Expression lastly used in the document, "you shall enjoy the above mentioned property and live, as you wish after you attained majority and got married". These expressions have to be taken as controlled by the expression used earlier that the intention of the author is that the right and title as an absolute owner of the property should pass on to the donees on the fulfilment of those conditions. That as the document appears to have been executed with the object of the marriage and the effect of it is that donees could get absolute ownership under the deed on the fulfilment, of both the conditions, namely, attaining the age of majority by both of them and they getting married and until and unless this had so happened, the property had to remain in possession of the husband of the donor. This action shows that till the happening of the condition, namely, the attaining the age of majority by the two donees and their getting married, the property had to remain in possession of the husband of the donor, so, the property had not been transferred to the donees, the transfer could take effect only on the donees attaining majority and getting married. That as the marriage did not takes place in the present case and the plaintiff did not marry the defendant's daughter, deed did not become effective to transfer the title of the property to the plaintiff and defendant 1 and the title of the property re-examined with the donor. Mere execution of the deed of cancellation at subsequent stage will not lead to the conclusion that the gift deed had been acted upon. The deed cancelling the gift deed might have been executed as a matter of mere precaution and for safety protection. — Hutchegowda v Smt. Jayamma and Another, 1996(2) Kar, L.J. 751.


ATTESTATION OF GIFT DEED

In the present case, the gift deed in question has been registered and the necessary endorsements are made by the Sub-Registrar. P.W. 2 has sworn that he had attested the deed. But he has nowhere stated in his evidence that the executrix namely, Gangavva affixed her signature or mark to the gift deed in his presence or acknowledged to him, that she had affixed her signature or mark to the gift deed. Therefore, his evidence does not satisfy the ingredients of definition 'attested'. Hence, it will have to be held that attestation by P.W. 2 and another person as required by law, has not been proved. Therefore, though Gangavva appears to have admitted execution of the gift deed as is seen from the endorsement of the Sub-Registrar, it will have to be held that the gift deed, though registered, does not satisfy the ingredients of Section 123 main part. When that is so, no title in law can be said to have passed from Gangavva to the plaintiffs, even assuming that Gangavva did have such title to transfer. — Anant Somappa Pattar v Kalappa Devendrappa Yarakad, 1987(2) Kar. L.J. Sh. N. 177: ILR 1985 Kar. 1432.


Gift - proof of attestation. Where the attestor called as witness says he does not know who else attested and there is no other evidence, held, the gift deed was not proved as required by law. — Kempamma v Honnamma, 1979(1) Kar. LJ. Sh. N. 85.