MAHR/DOWER – HIBA – ESSENTIAL OF HIBA – REGISTRATION OF HIBA – HIBA-BIL-IWAZ – LIS PENDENCE – SALE DEED PROOF

The Hon’ble Karnataka High Court in Mr. Syed Basheer Malik and Another Versus Smt. Jameela Begum since dead by LRs and Others had held following important observations in respect of sale deed proof, Mahr, Hiba/Gift, Essentials of Hiba, Registration of Hiba, Hiba-Bil-Iwaz and Lis pendence 

REGISTERED SALE DEED PROOF:

The sale deed after execution is registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution by the person by whom it purported to have been executed is denied, the production of the said document is sufficient to prove the said document.

MAHR OR DOWER:

Under Mohammedan Law, ‘Dower’ or ‘Mahr’ is any amount or property which has some monetary value and the wife is entitled to get it from her husband, ‘Mahr’ or Dower’ is a sum of money or other properties which the wife is entitled to receive from the husband in consideration of the marriage. ‘Dower’ is an obligation imposed upon the husband as a mark of respect to the wife. The husband may settle any amount he likes by way of ‘Dower’ upon his wife though it may be beyond his means and though nothing may be left to his heirs after payment of the amount. But he cannot in any case settle less than ten dirhams. The amount of ‘Dower’ may be fixed either before or at the time of marriage or after marriage and can be increased after marriage. If the amount of ‘Dower’ is not fixed, wife is entitled to proper ‘Dower’ even if the marriage was contracted on the express condition that she should not claim any ‘Dower’.

In determining what is “proper” dower, regard is to be had to the amount of dower settled upon other female members of her father’s family such as her father’s sisters. The amount of ‘Dower’ used is usually split into two parts, one called ‘Prompt’ which is payable on demand and the other called ‘Deferred’ which is payable on dissolution of the marriage by death or divorce. The ‘Dower’ ranks as a debt and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however,- is no greater than that of any other unsecured creditor, except that she has a right of retention to the extent mentioned in Sec. 296 below. She is not entitled to any charge on her husband’s property, though such a change may be created by agreement.

The right of widow to retain possession of her husband’s property under a claim for ‘Dower’ does not carry with it the right to alienate the property, the alienation is valid to the extent of her own share. It does not affect the shares of other heirs of her husband.

The ‘Dower’ is inherent in the concept of marriage under the Mohammedan Law and it is an integral part of it. It is a sort of deterrent to the husband’s absolute power of pronouncing ‘divorce’ on his wife. So the main object of ‘Dower’ is to offer protection to the wife against such arbitral power. ‘Dower’ is something which has some value in terms of money and the wife is entitled to receive it as ‘gift’ from her husband for entering into a contract of marriage.

HIBA/GIFT:

“A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter. Every Mohammedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of moveable or of immovable property. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.

ESSENTIALS OF HIBA/GIFT:

The three essentials of a gift under Mohammedan law are as under:

There should be:-

(1)   A declaration of gift by the donor

(2)  An acceptance of the gift, express or implied, by or on behalf of the donee, and

(3)  Delivery of possession of the subject of the gift by the donor to the donee.

If there conditions are complied with, the gift is complete.

HIBA-BIL-IWAZ:

Under Mohammedan Law a “hiba-bil-iwaz”, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided, share (mushaa) in property capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from “true” hiba-bil-iwaz. Therefore, hiba-bil-iwaz means, literally, a gift for an exchange. It is of two kinds, one being the true hiba-bil-iwaz, that is, hiba-bil-iwaz as defined by the older jurists, and the other hiba-bil-iwaz of India. In the former there are two acts, namely, (1) the hiba, which is followed by (2) an independent and uncovenanted iwaz (return-gift, that is, an iwaz not stipulated for at the time of hiba). In the latter there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration. In the true hiba-bil-iwaz, the hiba and iwaz, are both governed by the law of gifts. There must be delivery of possession both of the hiba and iwaz, and they are both subject to the doctrine of mushaa. The transaction consists of two distinct acts of donation between two persons each of whom is alternately the donor of one gift and the donee of the other.   

REGISTRATION OF GIFT/HIBA:

Hiba or Gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammedan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved.

LIS PENDENS:

It is settled legal position that the effect of Section 52 of the Transfer of Property Act is not to render transfers effected during the pendency of the suit by a party to a suit void. It only renders such transfers subservient to the rights of the parties to the said suit as may be eventually determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The mere pendency of the suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The principle underlying Section 52[e] is that the litigating party is exempted from taking notice of title acquired during the pendency of the litigation. The section only postulates a condition that the alienation will in no manner affect the rights of other party under a decree which may be passed in the suit unless the property is alienated with the permission of the Court. Therefore, in the absence of any prescription under statute, from alienating the property during the pendency of the suit, an alienation made by a party to the suit is valid and legal and it is not void ab initio. However, transfer remains valid, subject of course, to the result of the suit. If the person from whom the property is purchased succeeds in the suit, the purchaser succeeds. If the party loses, the purchaser loses and therefore the question whether alienation is valid or not is determined after determination of rights of the parties in the suit finally. 

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MUTATION ENTRIES DO NOT CONVEY OR EXTINGUISH ANY TITLE

The plaintiff mother who is Gowramma owned a property and she died intestate leaving behind her one son who is the plaintiff and the 1^st defendant her husband, on her death the 1^st defendant had given declaration before the revenue authority to change the Khata in the name of the plaintiff and the mutation was effected accordingly and the revenue records stood in the name of plaintiff for long period of time. The plaintiff case is that the 1^st defendant entered into 2^nd marriage and had children i.e., defendant Nos. 2 to 5 and they denied the ownership of the plaintiff.

The trial court after consideration of evidence dismissed the suit filed by the plaintiff. The lower appellant court held that plaintiff and 1^st defendant being class 1 heir and entitled to half share in the property. The plaintiff preferred 2^nd appeal and the High Court of Karnataka allowed the same by setting aside the judgement of the lower appellant court. Aggrieved by the High Court order the defendant preferred appeal to the Supreme Court.

ISSUE

Whether declaration before the revenue authorities to change the khata is a relinquishment of right over the property, whether the mutation entries convey the title

VIEW HELD

The mutation entries do not convey or extinguish any title and those entries are relevant only for the propose of collection of land revenue. The declaration provided by the 1^st defendant for change of katha/mutation does not divest himself from the title and possession and his share in suit schedule property.

The Hon’ble Supreme Court in H.Lakshmaiah Reddy and others Vs L.Venkatesh Reddy set-aside the judgement and decree of the High Court and the judgement and decree of the lower appellant Court was restored and the appeals were allowed as per the orders.         

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

RIGHT TO PROPERTY IS A HUMAN RIGHT

In a Land Acquisition matter, the High Court vide its impugned Judgment rejected the claim of the Appellants for any compensation due to them for the land taken by the Respondent authorities, without resorting to any procedure prescribed by law. The land in dispute was owned by the predecessors-in-interest of the Appellants.  A very large chunk of land including the said land stood notified under Section 4 of the Land Acquisition Act, 1894 ('Act') for the establishment of a project for industrial development. No subsequent proceedings were taken up thereafter, and the acquisition proceedings lapsed. The Predecessors-in-interest of the Appellants being illiterate farmers were absolutely unaware of their rights and hence too inarticulate to claim them. The actual physical possession of the said land was taken by the State authorities and handed over to the Maharashtra Industrial Development Corporation ('Development Corporation') in the year 1964 itself.  Similarly situated persons who were also deprived of their rights in a similar manner were granted compensation. The Respondent authorities realising that grave injustice had been done to the Appellants, in respect of the land in dispute, issued a fresh notification under Section 4 of the Act, however, no further proceedings under the Act were initiated.  The Appellants had been pursuing the authorities persuading them to complete the deemed acquisition proceedings, but despite their efforts, even a declaration under Section 6 of the Act was not issued , later the Development Corporation, under the instructions of the Government of Maharashtra handed over the possession of the said land to the City Industrial Development Corporation of Maharashtra ('CIDCO').  Appellants were unable to get any compensation for the said land or even for that matter, any land in lieu of the lands so taken, in spite of their best efforts made in this regard.  As the Appellants were unable to get any relief from any authority, though they were continuously pursuing their remedies by approaching the Special Land Acquisition Officer, as well as the Revenue Authorities of the State, without any success whatsoever and eventually moved before the High Court. The High Court dismissed their plea only on the grounds of delay, and the non-availability of certain documents. Consequently an appeal was filed to the Supreme Court.

The Supreme Court observed, the Appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property seized to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamount to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice.

The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension.

In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law.

Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. 

The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 

The High Court committed an error in holding the Appellants non-suited on the ground of delay and non-availability of records, as the court failed to appreciate that the Appellants had been pursuing their case persistently. Accepting their claim, the statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the court realising that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The Appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood.

Depriving the Appellants of their immovable properties was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

The findings of the High Court, that requisite records were not available, or that the Appellants approached the authorities at a belated stage are contrary to the evidence available on record and thus, cannot be accepted and excused as it remains a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of our Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. are required to be decided expeditiously, for the sole reason that, if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, for the amount of compensation that is likely to be paid to him at a belated stage.

In order to redress the grievances of the Appellants, the Respondent-authorities would notify the land in dispute Under Section 4 of the Act within a period of 4 weeks from today. Section 6 declaration will be issued within a period of one week thereafter. As the Appellants have full notice and information with respect to the proceedings, publication in the newspapers either of the notification or of the declaration under the Act is dispensed with. Notice under Section 9 of the Act will be served within a period of 4 weeks after the publication of Section 6 declaration and award will be made within a period of three months thereafter. The deemed acquisition proceedings would thus, be concluded most expeditiously. Needless to say, the market value of the land in dispute will be assessed as it prevails on the date on which the Section 4 notification is published in the Official Gazette. Payment of compensation/award amount will be made to the claimants/persons-interested immediately thereafter, along with all statutory benefits. The Appellants shall be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.

- Tukaram Kana Joshi and Ors. thr. Power of Attorney Holder vs M.I.D.C. and Ors. (AIR2013SC565)

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates

MERE EFFLUX OF TIME AND ESCALATION OF PRICE, NO GROUND TO DENY RELIEF OF SPECIFIC PERFORMANCE

The ultimate question that has now to be considered is whether the Plaintiff should be held to be entitled to a decree for specific performance of the agreement of 22.12.1970. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the Plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the Plaintiffs to have the agreement enforced in law.

The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance.

Efflux of time and escalation of price of property, are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the Plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.

- Satya Jain (D) Thr. L.Rs. and Ors Vs Anis Ahmed Rushdie (D) Thr. L.Rs. and Ors. (AIR 2013 SC 434)

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Prepared by: S. Hemanth

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ILLEGAL AND UNAUTHORISED CONSTRUCTION AFFECT FUNDAMENTAL AND CONSTITUTIONAL RIGHTS, COURT ORDERED DEMOLITION OF ILLEGAL AND UNAUTHORISED CONSTRUCTION

The Supreme Court in a matter relating to the illegal and unauthorized constructions of buildings and other structures. Said, this Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions.

In Dipak Kumar Mukherjee Vs Kolkata Municipal Corporation & others, the Supreme Court emphasized that the illegal and unauthorized constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about the demolition of illegal/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the state apparatus to take prompt action to demolish such illegal constructions has convinced the citizen that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

The appellant a resident of Kolkata. Succeeded before the learned single judge of the Calcutta High Court to order the demolition of unauthorized construction of multi-storied building by respondent No.7 (construction Co.) on the plot owned by the respondent No.8 but could not persuade the division bench to affirm the order of the learned single judge and consequently approached the Supreme Court.

The Supreme Court allowed the appeal and impugned judgement was set aside. The Court ordered demolition of the unauthorized constructions. A cost of Rs.25,00,000/- imposed for violating the sanctioned plan and continuance of illegal constructions despite ‘stop work notice’.

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Prepared by: S. Hemanth

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DEPOSIT AMOUNT CAN BE FORFEITED AND NOT THE AMOUNT PAID TOWARDS PART PAYMENT OF THE SALE CONSIDERATION - SUPREME COURT RULING

Whether the seller is entitled to forfeit the entire deposit amount where the sale of an immovable property falls through by reason of the fault or failure of the purchaser. HELD yes by the Apex Court.

Whether the seller is entitled to retain the entire amount received towards earnest money or not. The fact that the purchaser was at fault in not paying the balance consideration was also not disputed. The question whether the seller can retain the entire amount of earnest money depends upon the terms of the agreement. The Hon’ble Supreme Court of India in Satish Batra Vs Sudhir Rawal  observed:

“Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance by the depositor. There can be converse situation also that if the seller fails to perform the contract  the purchaser can also get the double the amount, if it is so stipulated. It is also the law that party payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply”.

In the above case, the Supreme Court held that the seller was justified in forfeiting the entire amount of Rs.7,00,000/- as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and, consequently, the seller is entitled to forfeit the entire deposit.

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Prepared by: S. Hemanth       

Advocate at Hemanth & Associates

CAN LEGAL PRACTITIONER BE HELD LIABLE FOR FALSE LEGAL OPINION

Can a legal practitioner be held  liable for a legal opinion provided by him? In a matter CBI charge sheeted a legal practitioner and a panel advocate for the Vijaya Bank, who was arrayed as Accused No.6. The duty of the panel advocate was to verify the documents and to give legal opinion. The allegation against him was that he gave a false legal opinion in respect of 10 housing loans. HELD no primafacie case against the practicing lawyer was concerned.

The Hon’ble Supreme Court of India in Central Bureau of Investigation, Hyderabad Vs K Narayana Rao3 observed:

In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.

A lawyer does not tell his client that he shall win the case in all circumstances. A surgeon cannot guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while understanding the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., (1) either he was not possessed of the requisite skill which he professed to have possessed, or, (2) he did not exercise, with reasonable competence in the given case, the skill which he did possess.

In Jacob Mathew Vs State of Punjab & Anr.3a the court observed, to determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

In Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra & Ors.3b the court laid, that there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.

Therefore the Supreme Court held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

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Prepared by: S. Hemanth       

Advocate at Hemanth & Associates