Madhya Pradesh High Court
Case BriefsHigh Courts


Madhya Pradesh High Court: Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

The factual matrix of the case was that the land in question belonged to a deceased-Vindeshwari Prasad. It was alleged in the plaint that after the death of Vindeshwari Prasad, the plaintiffs and defendants 1-2 were having 1/3rd share each and there was no right vested in defendants 3-6. The instant suit was filed as second appeal against the judgement rendered by Additional District Judge (Fast Track Court) Rewa which had confirmed the judgment and decree passed by 5th Civil Judge Class-II Rewa.

It was submitted by the appellant that in view of the concurrent finding of the fact that the plaintiff was not in physical possession of the land, the suit filed was not maintainable in view of provision under Section 34 of the Specific Relief Act, 1963. It was further contended by the appellants that in absence of the evidence of any forged document, the suit was not maintainable. It was contended by the appellants that Will in question was not a proven document and the Trial Court had made an error.

The counsel for the respondent submitted that as the Will was not proved by the defendants 3-5 and could not been found proved by the Courts, no interference could be warranted in the second appeal. It was further contended by the respondents that Will in question was propounded by the defendants 3-5, and therefore they were liable. It was also contended by the respondents that the property in question was an agriculture /revenue paying land and partition had to be effected by the Tehsildar.

The first substantial question of law was whether the declaration of share could be made irrespective of Section 34 of Specific Relief Act, 1963. The High Court came to the conclusion that the declaration of share could be made irrespective of Section 34 of the Specific Relief Act, especially in case where the land was agriculture land. The Court relied on the judgement of Karelal v. Gyanbai, 2018 SCC OnLine MP 1021 where there were identical set of facts and circumstances, and the Court had held that- “The matter can be ascertained from another angle also. In the present case, only the agricultural land is the disputed property. If the defendants had never challenged the rights and title of the plaintiffs, then there was no need for the plaintiffs to file a suit for declaration of title or even for partition.”

The second substantial question of law was that the Will was propounded by defendants 3-5, therefore it was for them to prove Will in question which was not proved by the Courts below. The Court relied on the judgment of Anathula Sudhakar v. P. Bucchi Reddy, (2008) 4 SCC 594 where it was held that “a cloud is said to raise over the person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over, is made or shown.” The Court pointed out that the principle enshrined in order 6 rule 13 Civil Procedure Code, 1908 is also worth importance wherein it was specifically laid down that the burden of proving the will always lies upon the propounder, i.e. defendant in the present case. The Court also considered the proposition laid down by Supreme Court in Anathula Sudhakar after which it became apparent that a relief of declaration is required to be sought only when the defendant is able to show any apparent defect in title of plaintiff. It was observed by the Court that the findings with regard to the execution of the will was purely a question of fact and therefore cannot be interfered with by this Court as it was laid down in Sham lal v. Sanjeev Kumar, (2009) 12 SCC 454. The Court held that in presence of prior execution of Agreement of Gift, the Will becomes a suspicious document.

The High Court dismissed the second appeal.

[Ramkali v. Murirtkumari, Second Appeal No.1015 of 2004, decided on 20-07-2022]

Advocates who appeared in this case :

Sankalp Kochar, Advocate, for the Petitioner;

Ashok Lalwani, Advocate, for the Respondent.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. dismissed an appeal that challenged an order given by the court of Civil Judge pertaining to cancellation of gift deed.

Appellant was aggrieved by that part of order by which an ad-interim injunction was not granted. He had purchased an agricultural property in the year 1989 and his father, Manmohan Thapar constructed a resort thereupon. In the year 2007, father insisted for construction of the resort, but the appellant was not in a position to undertake that task at that point of time. He insisted the appellant and his brother to transfer the shares in the property, in his favour to facilitate the requisite permission and licenses for construction of resort and the same were transferred on 13-04-2007.

In the year 2015, the appellant came to know about the marriage of Manmohan Thapar with the respondent, who was working as a Secretary with Manmohan Thapar. Respondent furnished herself as unmarried, though she was married and had a child. Manmohan Thapar expired on 26-07-2019 and the appellant came to know about his will dated 18-11-2006 in the year 2019. The property was mutated in the name of respondent on the basis of the gift deed dated 27-02-2013.

The suit was filed for the cancellation of the Gift deed as also for permanent injunction. The appellant also moved an application under Order 39 Rules 1& 2 of the Code. The Court below observed that there was no ground to grant ex-parte ad-interim-injunction and issued notice.

The appellant and his brother transferred their shares in the property to him in the year 2007. Therefore, it was argued that this will was not genuine.

When they came to know about the gift deed, the respondent mutated her name in the revenue records. It was the case that mutation was done on the basis of gift deed which was allegedly executed sometimes in the year 2013. The respondent was recorded tenure holder.

Without making any further observation with regard to merits of the case, the Court was of the view that the Court had not committed any error in denying to issue ex-parte temporary injunction to the appellant. The appeal was dismissed.[Samir Thapar v. Tiny Kesag Ligtsang Thapar, 2022 SCC OnLine Utt 68, decided on 11-02-2022]

Mr U. K. Uniyal, Senior Advocate, assisted by Mr Rajesh Sharma, Advocate for the appellant.

Mr V. S. Rathore, AGA for the State

Suchita Shukla, Editorial Assistant has reported this brief.

Op EdsOP. ED.

Under common law, a deed has been understood as an instrument written on a paper or parchment, executed by a person or corporation making, confirming, concurring in or consenting to some assurance (otherwise than by way of testamentary disposition), of some interest in property or of some legal or equitable right, title or claim, or undertaking in some act affecting legal relations or position of a party to the instrument or of some other act affecting other person or corporation. A deed may be defined as a formal writing of a non-testamentary character, which purports or operates to create, declare, confirm, assign, limit or extinguish some right, title or interest.

Validity of deed

Historically, for an instrument to be a valid deed, following things were necessary:

(i) It must indicate that the instrument itself conveys some privilege or thing to someone.

(ii) The grantor must have the legal ability to grant the thing or privilege.

(iii) The person receiving the thing or privilege must have the legal capacity to receive it.

(iv) The instrument must be sealed. Although this requirement has been eliminated by most jurisdictions and replaced with signature of the grantor, however for conveyance of real estate and executed for Government, most jurisdictions require the deed to be acknowledged before a notary public or a civil law notary and some may additionally require witness(es).

(v) It must be delivered to and accepted by the recipient.

(vi) There must be witness(es) that also signs the deed under their name(s) and address(es).

Parts of a deed

The parts of a deed are as under:

(i) Name of the deed: The name given at the commencement of the document is not the controlling factor, it is the substance of the document and not the form which is to be considered.

(ii) Place and date: The place of execution is stated after the name of the deed. It is then followed by the date of execution of the deed. The date of execution is necessary under the Registration Act, 1908 and the Limitation Act.

If the deed is executed by different parties on different dates, the date on which the deed was last executed is taken as the date of the deed.

(iii) Parties and their description: After the place and date, names and description of the necessary parties to the deed are mentioned. The nature of the deed determines the necessary parties. The parties in a deed should be mentioned properly. Their full description should be given for the purposes of identification.

(a) Juridical persons: On many occasions, a party to a deed may not be a living person but may be a juridical person, for example, a company, corporation or an association.

(b) Minors: As per Section 10 of the Contract Act, 1872, a minor is not competent to contract. Under the Hindu law, the natural guardian of a minor can transfer his or her undivided interest in joint family property, for legal necessity or for benefit of estate. But the property other than his undivided interest cannot be disposed of without the permission of the court. In case the guardian is transferring the minor’s property with the court’s permission, such permission should be mentioned in the recital.

(c) Persons of unsound mind: As per Section 12 of the Contract Act, a person of unsound mind is not competent to contract. However, his manager can transfer his property with the permission of the court. The description of the lunatic and recital regarding court’s permission to transfer the property is written in same form as that of the minor.

(d) Trusts: Particulars of the trust deed by which trustees have been appointed should be referred in the recital. In case of any contract entered into by trustees on behalf of beneficiaries, the particulars of the trust deed by which trustees have been appointed as well as their act on behalf of the beneficiaries should be referred to in the recital.

(iv) Reference label of parties: Reference label of parties are put in parenthesis against the name and description of each party to avoid repetition of their full names and description at every place. If there are more than two parties, the expressions “of the first part”, “of the second part”, “of the third part”, etc. are used.

(v) Reference of heirs, executors, assigns, etc.: After the labels of parties, reference of heirs, executors, assigns are also made, so that they may also take the benefit of the deed.

As held in Shyam Singh v. Daryao Singh[1], merely because there is only a mention of heirs of the contracting parties but not their assignees or transferees, the legal right of assignment available to the benefit of the original contracting party under Section 15(b) of the Specific Relief Act, 1963 cannot be denied to it.

(vi) Recitals: They are used to explain those matters of fact, that are necessary to make the transaction clear. A recital is evidence as against the parties to the instrument and those claiming under them and in an action on the instrument itself the recitals operate as an estoppel though it would not be so on a collateral matter.

(vii) Testatum: After the recitals, the operative part of the deed commences with the testatum.

(viii) Consideration: It is an inducement, price or motive that cause a party to enter into an agreement or a contract. The consideration should be mentioned in the deed. Section 27 of the Stamp Act provides that the consideration should be truly and fully mentioned in the deed, omission of which is subject to fine up to Rs 5000. However, the validity of the deed is not affected by not mentioning the consideration.

(ix) Receipt: The receipt of consideration is made within parenthesis in the deed. If part consideration has been paid and the balance is being paid at the time of execution of deed, the fact should be stated in the receipt clause.

(x) Operative words: After the testatum, operative words follow, which express the nature of the transaction. Such words should be clear.

(xi) Parcels: After the operative words, description of the property being transferred is given for easy identification of the property.

(xii) Schedule of the property: As the description of the property is generally lengthy, it is given in a schedule appended to the deed and the words “and more particularly described in the schedule hereunder written” is written in the parcel of the deed.

In case of any conflict between parcels incorporated in the deed and description of the subject-matter in the schedule, the former shall prevail unless it is made clear in the deed that description as given in the subject-matter will be preferred.

(xiii) Map: In the deed of transfer, the map of the property to be transferred is annexed, to identify the property. If a map is annexed to the deed, it is treated as part of the deed.

(xiv) All estate clause: This clause expresses that the transferor conveyed all his estate, interest title, claim, rights and demands whatsoever into or in the said property or any part thereof. It is incorporated to make clear that all rights, interest, title, etc. of the transferor in the property shall be transferred to the transferee after execution of deed of transfer.

(xv) Exceptions and reservations: An exception is a part of the thing granted, which is in existence, and a reservation is a thing not in existence but created or reserved out of land granted. If the transferor wants to retain some part of the estate transferred, it should be specifically mentioned after description of the property.

(xvi) Habendum: It limits the granted estate and it mentions the liabilities or incidents subject to which the property is transferred. The clause is written into deeds and mortgages to define transfer of the subject property.

(xvii) Reddendum: It is a clause in a deed by which some new thing is reserved out of what has been granted before. In this cause, the rent payable by the lessee is specified, along with time and mode of payment.

(xviii) Covenants: Covenant is an agreement by which the parties or some of them agree to do or not to do a specified thing or act. The covenant may be positive or negative. For making the covenant in the deed, no particular form is necessary. The words used to provide covenant must be clear. A covenant may even be absolute or qualified, and may be made by several persons jointly and severally.

(xix) Delivery of title deeds: After the covenant clause, clause regarding delivery of title deeds by the transferor to the transferee is incorporated. When the transferor transfers the property, he is required to deliver all the title deeds in his possession to the transferee. However, if a part of the property is transferred or where the property is transferred to several persons, the transferor or the transferee of the lot or the greatest value, as the case may be, is entitled to retain the title deeds. But he should produce all or any of them at the request of the purchaser and at the cost of the latter to furnish copies, extracts or abstracts therefrom as the purchaser may require and, in the meantime, keep them safe.

(xx) Testimonium: It is the concluding part of the deed. It states that the parties have signed the deed in witness of what is written therein.

(xxi) Execution: After testimonium, the deed is executed by the parties to the deed in presence of witnesses.

Execution does not mean merely signing it, it should accompany the intention of the executant to give effect and operation to the document signed. Section 67 of the Evidence Act, 1872 provides that no particular proof is required for the purpose of establishing the fact of execution. Further, when the execution of a document is denied, no presumption of its execution can be raised, and the same needs to be proved.

(xxii) Registration: In case, the duly executed instrument is required to be registered (Registration may be compulsory or optional; refer Sections 17 and 18 of the Registration Act, 1908), the same should be so got done after payment of appropriate stamp duty as per law, so as to make the same enforceable in law.

Achal Gupta is an Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court.

[1] (2003) 12 SCC 160 

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Prasanna Jayawardena, L.T.B. Dehideniya and S. Thurairaja, JJ., dismissed an appeal filed on being aggrieved by the Judgment of the High Court which had allowed the appeal of the Defendant-Respondents.

The Plaintiff-Appellant had instituted action in the District Court of Colombo against the Defendant-Respondents stating that he was entitled to the property described in the first schedule of the plaint, stating that the first Defendant-Respondent who was his brother was the owner of the property which was just adjacent to the property owned by him and the first Defendant-Respondent had forcefully and illegally annexed 1.95 perches of his land and gave it to the second Defendant-Respondent. The allotment of the land described that the land belonged to the mother of the Plaintiff-Appellant and the first Defendant-Respondent who by deed had gifted the portion of land bearing assessment No. 104 to the 1st Defendant-Respondent and land bearing assessment No. 111,113 and 115 to the Plaintiff-Appellant. After the first Defendant-Respondent did not honor his promise of returning the land back as directed by the Mediation Board the Plaintiff-Appellant had approached the district court which had granted the Plaintiff-Appellant all the relief’s prayed for in the plaint. Being aggrieved by which the Defendant-Respondents had appealed in the High court which had allowed their appeal stating that when there is a variation between description and extent given in a Deed, in law, the description must prevail. Thus the instant appeal was filed by the Plaintiff-Appellant. The decisive factor regarding the issue was considered to be the old wall which separated the two properties and the Plaintiff-Appellant contends that the first Defendant-Respondent had reconstructed the wall after it was demolished during the communal riots of 1983 and in doing so he encroached 1.95 perches of the Plaintiff-Appellant’s property but there was no evidence to support his contention.

The Court while dismissing the appeal answered the four questions of law in negative and explained that “No statement made by any person before a Mediation Board shall be admissible in evidence in any civil or criminal proceedings” and the District Court had come to his conclusion by relying on statements made at the Mediation Board so High Court did not err in law substituting its findings in place of the factual findings of the District Court further there was no proof of encroachment and no evidence to prove his claim. [B. Premarajah Jayawardena v. B. Upali Dayananda Janapriya Jayawardena, SC Appeal No: 126 of 2016, decided on 17-12-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J. dismissed a petition challenging the order of Appellate Authority under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 

The case of the petitioner is that her father executed a gift deed in her favour in 2014, thereafter filed an application in the Maintenance Tribunal under Section 23 of the MWPSC Act to revoke the said gift deed on the ground that his daughter is not providing him with necessary facilities to protect his well being. The Tribunal declined the father’s prayer but ordered the daughter (petitioner herein) to provide necessary facilities to her father to protect his well being. The father approached the appellate authority against the said order. The Appellate Authority allowed his appeal and granted revocation of the gift deed. Aggrieved thereby, the instant petition was filed in this Court.

Sri G. Harikumar, appearing on behalf of the petitioner argued that Section 23 can be attracted only in case of admission of a valid transfer. However, the respondent in the application stated that the deed was fraudulently obtained by undue influence and coercion. Thus, it is a case of civil dispute and shall be resolved by a civil court and not by Maintenance Tribunal.

Sri B.N.Shivsankar, appearing on behalf of the respondents relied on the object of the MWPSC Act. In addition to this, it was argued that the transfer of property of a senior citizen by way of gift is subject to providing basic amenities and if these are not provided the deed can be revoked under Section 23 of the MWPSC Act. 

The Court looked into the scope and object of the Act and accepted the respondent’s contention. The parliament enacted MWPSC Act to uphold the dignity and respect of a senior citizen at the time of old age. It relied on deontological moral theory of legislation and said that there are a certain type of actions which have universal acceptance. The Court also said that the tribunal has a duty to elicit the truth by adopting an inquisitorial approach as the act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. 

Relying on Radhamani v. State of Kerala, 2015 SCC OnLine Ker 33530, the Court held that there is no requirement of a written stipulation to effect that the transferee maintains the transferor. The tribunal should look at the circumstances under which the deed was executed.

Based on the following grounds the Court set aside the order of the Appellate Authority and remitted back the matter for reconsideration by the Tribunal. It also ordered that since the respondent is residing abroad, the Tribunal can hold sessions over electronic media.[G.S. Manju v. K.N. Gopi, 2019 SCC OnLine Ker 5363, decided on 10-10-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of Alexander Thomas, J. hearing a civil writ petition, considered the legal validity of unilateral cancellation of deeds and held that a vendee cannot be divested of his title by unilateral cancellation of sale deed by the vendor.

Petitioner (widow of one James), since her husband’s death, was in ownership and enjoyment of property settled by James’ mother Kunjamma in his favour. Her request to settle the said property in favour of their daughter, was refused by the District Registrar on the ground that the settlement deed executed by Kunjamma in favour of James had been unilaterally cancelled by her by executing and registering a cancellation deed. Aggrieved, the petitioner filed the instant petition for praying for a direction to the District Registrar to execute and register settlement deed executed by her in favour of her daughter.

The Court took note of its decisions in Pavakkal Noble John v. State of Kerala, 2010 SCC OnLine Ker 2561 and P.A. Hamsa v. District Registrar General, Kozhikode, 2011 SCC OnLine Ker 1882 where it was held that a registration officer is legally obliged to reject and refuse to register cancellation of sale deed which has been unilaterally executed without the knowledge and consent of parties to the sale deed.

It was noted that Kunjamma’s cancellation deed had been executed after James’ death and hence there was no question of any bilateral execution or registration of cancellation deed with his consent. Therefore, the said cancellation deed was null and void and not binding on James’ legal heirs, i.e., the petitioner and her daughter.

Accordingly, settlement deed executed by petitioner in favour of her daughter was directed to be registered. The Court also directed Inspector General of Registration to issue necessary norms and guidelines in this regard, by way of circular, to the registration officers.[Lali Yohannan v. State of Kerala, 2018 SCC OnLine Ker 8056, Order dated 29-11-2018]