Case Briefs

Competition Commission of South Africa in a statement prohibited the transaction proposed by ECP Africa intended to acquire Burger King (South Africa) and Grand Foods Meat Plant (Pty) Ltd (grand Foods) from Grand Parade Investments.

What would be the impact of the merger?

Commission found that the merger would lead to a significant reduction in the shareholding of historically disadvantaged persons in the target firm, from more than 68% to 0% as a result of the merger.

The said merger would not have resulted in a substantial prevention or lessening of competition.

Commission stated that the acquiring firms do not have ownership by historically disadvantaged persons (HDPs). As a direct result of the proposed merger, the merged entity will have no ownership by the HDPs and workers.

No Public Interest

Therefore, Commission was concerned that the proposed merger would have a substantial negative effect on the promotion of greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons in firms in the market as contemplated in Section 12A(3)(e) of the Competition Act.

Concluding the statement, Commission stated that the proposed transaction raised significant public interest concerns and has a substantial negative effect on the promotion of a greater spread of ownership.

Competition Commission of South Africa

Op EdsOP. ED.

The term “ownership” literally means to have or hold a thing. The Black’s Law Dictionary defines ownership as “the bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to the other”. In the legal sense, the term “ownership” means right over a thing to the exclusion of all other persons, implying non-interference by others in the exercise of his rights and the same must be distinguished from a mere holding of a thing in one’s possession.

Austin defined ownership as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. His definition thus implies three attributes viz.:

(i) Indefinite user – the owner of a thing is free to use or misuse the thing in a way he likes.

(ii) Unrestricted disposition – the power of disposition of the owner is unhampered by law meaning that he is absolutely free to dispose it to anyone.

(iii) Unlimited duration – ownership of a person cannot be cut short and the owner can continue to be the owner as long as he likes. 

The High Court of Calcutta, in its judgment in Jiban Roy Choudhury v. Taramoyee Debi1, has explained ownership and its incidents as follows:

11. In Salmond’s Jurisprudence (12th edn.) ownership is described as follows (Chapter 8):

“Ownership denotes the relation between a person and object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem being good against all the world and not merely against specified persons. Though in certain situation some of these rights may be absent, the normal cases of ownership can be expected to exhibit the following incidents.”

12. The incidents are (i) right to possess the thing though he may be wrongfully deprived of it or may have voluntarily divested himself of it; (ii) right to use and enjoy the thing owned, right to manage and use, to the income from it such right to possess being in fact liberties; (iii) right to consume or destroy as also to alienate or transfer the thing by will after death or by conveyance during lifetime; (iv) right of ownership being indeterminate in duration such interest being perpetual, determined neither by any set point (as the interest of a lessee or bailee) nor by owner’s death, as the property owned can descend to his heirs or while the new owner’s interest is to continue, if the property is sold to him prior to death, unaffected by such death; and (v) ownership is residuary in character and when the lesser rights are given away, their extinction revives all rights in the owner.

 Ingredients of ownership

Normally ownership comprises the following:

(i) Right to possess: The owner of a thing has a right to possess it, to the exclusion of all others i.e., the owner has exclusive control of a thing.

(ii) Right to use: The owner has right to use the subject-matter of ownership as per his own discretion.

(iii) Right to manage: The owner has the tight to manage i.e., he has the right to decide how and by whom the thing shall be used.

(iv) Right to the capital/alienation: The owner has exclusive right of alienating with the thing. A non-owner may possess a thing but he can not transfer its ownership.

(v) Right to income: The owner of a thing has the right to the income arising out of the thing within the limits, if any, laid down by any law.

 Types of ownership

The different types of ownership may be mentioned:

(i) Vested ownership: An ownership is vested when all the events essential to vest property in the owner have happened and the owner’s title is already perfect. For example, two people sharing ownership of a property. If one dies, the other gets the gain of vested ownership of the property.

(ii) Contingent ownership: The ownership is conditional. In this case, the transfer of ownership is subject to certain conditions. For example, a testator may leave property to his wife for her life and on her death to A, if he is then alive, but if A is dead to B. Here A and B are both owners of the property in question, but their ownership is merely contingent.

(iii) Sole and co-ownership: When the right of ownership is exclusively vested in one person, it is called sole ownership. When the property is jointly held by several persons at the same time, it is called co-ownership.

As per the English law, co-ownership is further sub-divided into joint tenancy and tenancy in common.

(iv) Corporeal ownership: The said ownership relates to corporeal property, moveable or immoveable. For example, ownership of land, goods, etc.

(v) Incorporeal ownership: The said ownership relates to intangible objects. For example, ownership of a right, patent, etc.

(vi) Legal and equitable ownership: Legal ownership originally meant the one having its origin in the rules of common law. For example, a lender who has lent money for a property is the legal owner of that property.

On the other hand, equitable ownership resulted from rules of equity different from common law.

(vii) Trust and beneficiary ownership: Trust is defined as an obligation annexed to the ownership of the property and arising out of a confidence reposed or declared. The person who reposes the trust is called “author”, the person accepting the confidence is called “beneficiary” and the subject-matter of the trust is called “trust property”. The person in whom the property vests is called the “trustee”, and he has the “trust or legal ownership” of the property. The person for whose benefit the property is held is called the “beneficiary”, and his ownership is termed as “beneficial ownership”.

(viii) Absolute and limited ownership: When all the rights of ownership i.e., possession, enjoyment and disposal, are vested in a person without any restriction except those imposed by law, his ownership is said to be absolute. On the other hand, where the ownership is subject to limitations on use or duration or disposal, the ownership is said to be limited.

The Patna High Court in the judgment of Hira Singh v. Sk. Mosaheb2,  regarding the ownership of property in lieu of dower held as under:

9. The learned Judge having quoted that passage came to the conclusion that, in all cases where a Muhammadan widow is found in possession of property in lieu of dower after her husband’s death, her position is that of a usufructuary mortgagee and that she is entitled to remain in possession merely as a mortgagee, in order that her claim for dower might be satisfied out of the rents and profits and that she is, in no case entitled to any larger interest. He came to the conclusion that, if her position was that of a mortgagee in possession she was clearly not entitled to execute a conveyance in respect of the property in favour of Defendant 1, and that, having regard to what her actual position was, namely, that of a mortgagee in possession, she could not acquire a title by adverse possession by having her name recorded as a kashikar in the record of rights, and that no act on her part could bar the right of the heirs of Teg Ali to sue for possession of the property as against the widow or her transferees on the ground that her claim for dower had been satisfied and that, therefore, they were entitled to the equity of redemption in the property … I can see no reason in law why the husband should not during his lifetime satisfy his liability to pay his wife’s dower just as much out of real property as out of personal property, such as money. The dower can be paid off at any time during the joint lifetime of the husband and wife. It can certainly be paid in money, although it may not be usual to do so, and I can see no reason why a conveyance of landed property should not be made to the wife as an out and out transfer of ownership for the purpose of satisfying the dower. In fact, in another passage in the work of the learned author to which reference has already been made, at p. 318 of the first edition, it is clearly stated that a gift by a husband to a wife during his lifetime by way of payment of her dower is a gift for which there is a good consideration and may be treated as a hibi-bil-iwaz. In these circumstances, it seems to me, although I agree with the learned Judge of this Court that the decision of the Subordinate Judge cannot stand because he assumed a presumption to exist, which, in my opinion, has no legal foundation, nevertheless, the matter is not concluded and ought to go back again to the Subordinate Judge for further consideration for him to determine upon the evidence already given and upon the surrounding circumstances of the case whether, in fact the transaction which took place shortly before the death of Teg Ali was an out and out gift to his wife, or was merely a transaction whereby she was put in possession of the property to satisfy herself for her arrears of dower out of the rents and profits of that property. 

  1. …With these directions, I think that the case should be remanded to the Subordinate Judge to arrive at a conclusion of fact upon the main question in the case without giving any weight to the consideration which influenced him in the first instance where he found that in such a case as this it is usually an absolute right which is given. There is no such presumption that it is usually an absolute right and therefore, that matter must be left out of consideration by the Subordinate Judge and must not be allowed to influence his judgment in any way.…

Modern modes of acquiring ownership

Under modern law, modes of acquiring ownership may be classified under two heads:

(i) original mode; and

(ii) derivative mode.

Original mode: The said mode is the result of some independent personal act of the acquirer himself. It is of following kinds:

(i) Absolute mode: In this mode, ownership is acquired over previously ownerless object.

(ii) Extinctive mode: In this mode, there is extinction of previous ownership by an independent adverse act on part of the acquirer.

 (iii) Accessory mode: In this mode, requisition of ownership is the result of accession.

Derivative mode: When ownership is derived from a previous owner, it is called derivative acquisition of ownership. It is derived by any of the following modes: 

(i) Title of prior owner: In agreement, a title is acquired with the consent of the previous owner. It is only limited to contracts but includes all bilateral acts which create an interest. Such agreement may be either by assignment or by grant.

(ii) Purchase: A contract for sale does not confer title in immoveable property. As per Section 54 of the Transfer of Property Act3, a contract for sale of immoveable property is a contract that such sale shall take place on terms settled between the parties. However, if a person has entered into possession under a contract for sale and is in peaceful and settled possession of the same with the consent of the person having the title thereto, he is entitled to protect his possession against the whole world.

(iii) Will: In this regard, as decided by Delhi High Court in Lakshmi Devi v. State of Delhi4; Rajinder Singh Chowdhary v. S. Manjit Singh Chowdhary5, husband of a testatrix cannot claim absolute ownership over the property after the death of his wife, and would have no authority to bequeath the same by way of will. The Court held as:

  1. The Full Bench of this Court in Rajinder Singh Chowdhary v. S. Manjit Singh Chowdhary6 was confronted almost with identical proposition of law and took the view that it is the intention of the testator that has to be found out on a reading of the will and there cannot be any hard and fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation.

20. The function of the Court is to minimise or eliminate fallacious or anomalous situation emanating from the document particularly the will and not to embroil the parties in imbroglio of legal jargon. If there are two clauses in a will which appear to be irreconcilable and cannot stand together, it is the last covenant or the clause that shall prevail as the last clause or the covenant of the will is the last intention of a person executing the will. If the preceding clause confers any right which may be either absolute or limited that may be out of close relationship as that of husband and wife or out of love and affection or to protect the interest during one’s life time. That is not the last intention of the testator. What is relevant, and material is the last intention which is given effect to as this is the sole intention which is to prevail. In this case, if the property was bequeathed by Lakshmi Devi in respect of Clause 5, then Clause 6 which is the main clause shall have no meaning in spite of the fact that it was the last clause and last intention of the testator.

(iv) Gift: As per Section 122 of the Transfer of Property Act, 18827, gift is defined as the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the done and accepted by or on behalf of the donee. As per Section 1238 of the said Act, the transfer by way of gift must be affected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses, or by way of delivery.

The Madras High Court in Madras State Bhoodan Yagna Board, Madurai v. Subramania Athithan9, held that there is no provision as per the Hindu Succession Act for making gift of his interest in joint family property by a manager of a joint family, and as such Section 3010 of the said Act does not apply. The Court held as under:

  1. Mr Alagiriswami, appearing for the appellant, contended that the gifts made by the first defendant would be valid at least to the extent of his share in the joint family properties. His submission is that under the Hindu Succession Act, the first defendant is entitled to make a will of his property and if, on the death of the first defendant, such a will can take effect, there is no reason for not applying the same principles to a case of gift by the first defendant. It is true that Section 30 of the Hindu Succession Act confers power upon a member of a joint family to make a will in respect of his interest in the joint family property. But that principle cannot be extended to a case of a gift, which is a transaction inter vivos, unless the statute itself specifically recognises it. Section 4 of that Act which sets out the overriding effect of that Act merely provides that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act. That Act has not made any provision for making a gift by a manager of a joint family of his interest in the joint family property and as such Section 30 does not avail to the appellant and we are clearly of the opinion that the gifts by the first defendant are invalid even as regards his interests in the joint family properties.

(v) Transfer of ownership: The rights of transferee from a co-owner are regulated by Section 4411 of the Transfer of Property Act, which provides that where one or more co-owners of the immoveable property transfers his share of such property or any interest therein, the transferee acquires the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce partition of the same, so far as necessary to give effect to the transfer, subject to conditions and liabilities affecting at the date of transfer.

(vi) Succession: In this regard, it has been held in several judgments that genuineness of will has to be established.

Further, inheritance is another method of acquisition of property. In respect of death of the owners, all rights belonging to the deceased are divisible into inheritable rights i.e., rights that survive their owner and devolve on his legal representative; and uninheritable rights i.e., rights which extinguish with the death of the person. Generally, devolution can take place wither by intestate succession, or by testamentary succession.

(vii) Exchange: Section 11812 of the Transfer of Property Act, 1882 defines exchange as a transaction where two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being define money only. Further, a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

The Andhra Pradesh High Court in Emana Veeraraghavamma v. Gudiseva Subbarao13, held that when the property inherited by a female is no longer available at the time of her death, there is no necessity of any further enquiry, as the property might have been exchanged with another property or the consideration of the same might have been used for acquiring another property. The Court held as follows:

  1. Now, while interpreting the said clause (a), it must be borne in mind that the female inheriting a property from her father or mother becomes the absolute owner of such property and that she can deal with it in such manner as he likes. If she alienates the property inherited by her. It cannot then be said, on her death, that the property inherited by her, is still available for devolution. We are of the opinion that the expression “property inherited by a female Hindu from her father or mother” occurring in this sub-clause must be given a restricted meaning consistent with the absolute right of disposition of the female owner. The special rule of succession applies only in case the very “property” inherited by a female from her father or mother is still available at the time of her death, otherwise, the rule does not apply….

Acquisition by Government:

Acquisition means taking not be voluntary agreement, but by authority of an Act of Parliament and by virtue of the compulsory powers thereby conferred. On acquisition of land by the Government, the land vests in the State free from all encumbrances. A person having any interest in such land can only claim compensation either from the State Government or from any person who might have collected the compensation in relation to such interest in the land. Apart from that, he cannot have any other right, much less occupation right, in such land once the same has been acquired by the Government.

Ownership by adverse possession:

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person’s title.

Section 2714 of the Limitation Act, 1963 and Articles 64, 65 and 112 of the Schedule15 to the said Act prescribe the period for law of adverse possession. Though the general rule of the law of limitation is that it is not meant to destroy the rights of the parties but it only fixes time period for the applicable legal remedy, however, Section 27 is an exception to the said rule, as reiterated in Ravinder Kaur Grewal v.  Manjit Kaur16, by the Supreme Court as under:

  1. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.
  1. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of the Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in praesenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property. 
  1. The adverse possession requires all the three classic requirements to coexist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court.

1 1979 SCC OnLine Cal 83

2 1920 SCC OnLine Pat 328.

3 <>.

4 2001 SCC OnLine Del 1217.

5 2000 SCC OnLine Del 724.

6 2000 SCC OnLine Del 724.

7 <>.

8 <>.

9 1972 SCC OnLine Mad 152.

10 <>.

11 <>.

12 <>.

13 1975 SCC OnLine AP 179.

14 <>.

15 <>.

16 (2019) 8 SCC 729.

Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetarpal, J., while addressing the instant petition against the impugned order of Deputy Commissioner expressed that, “Compassionate empathy should be one of the trait/quality of everyone manning a public office. The persons holding such offices are required to be more sympathetic and compassionate while dealing with downtrodden and uneducated persons.”

 Facts of the case are such that, the petitioner was in possession of a small building and Haryana Wakf Board was owner of the land underneath that building. The grievance of the petitioner was that since level of the road, passing in front of the building, had been increased, therefore, rainy/dirty water started getting accumulated in the premises and the building had also developed certain cracks. In spite of several applications for permission to reconstruct the said building, no response had been received from the officials of Municipal Committee. Therefore, construction work was carried out by the petitioner, to which the Municipal Committee had sent a notice under Section 208 of the Haryana Municipal Act, 1973 (“the Act”) directing the petitioner to stop the construction and demolish whatever construction had already been carried out. The Petitioner again requested for approval and submitted a building plan, which was rejected on the grounds that the building plan had been filed without deposit of the required fee and the petitioner had failed to provide evidence of ownership. Consequently, the premise was sealed by the authorities. The petitioner filed an appeal before the Deputy Commissioner, which was dismissed with the finding that there was no error in the order of Municipal Committee.

The Court observed that, “the entire emphasise of the legislature while enacting the Haryana Municipal Act, 1973 was to encourage the residents to erect the buildings after getting the building plan sanctioned and if some buildings have been erected or re-erected in violation thereof and such construction is found within the permissible limits, then the construction should be regularised or the violation should be compounded and the officials are expected to deal with such violation with compassion in such matters.” The Court said, Municipal Committee had failed to draw attention of the Court to any requirement of law requiring a person who had applied for sanction of the building plan, to prove his ownership before the building plan could be sanctioned. Further, it was held that, till the time the petitioner continues to be in possession of the said land he is entitled to repair/ renovate/reconstruct the building existing therein. Setting aside the order passed by the Municipal Committee and affirmed by the Deputy Commissioner, the Court stated that sealing of the property was an undoubtedly arbitrary exercise of power. Hence, the petition was disposed of with further directions that the petitioner should submit a fresh application for post facto approval of the building plan within one month from the date of the judgment and the officials of Municipal Committee were directed to process the same in accordance with law within 6 months. [Devender Kumar v. State of Haryana, 2020 SCC OnLine P&H 2360, decided on 16-12-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that to prove the case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act), the ownership of the vehicle is not required to be established and proved.

The Court was hearing the case wherein accused were convicted for commission of offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance – Ganja.  As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motorcycle. It was argued that the prosecution having failed to prove the ownership of the motorcycle (vehicle) and/or failed to recover the motor cycle   subsequently, vitiates the prosecution case.

Taking note of the fact that in the present case the appellant and the other accused persons were found on the spot with the contraband articles in the vehicle, the Court said that it is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Therefore, merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot.

[Rizwan Khan v. State of Chhattisgarh, 2020 SCC OnLine SC 730, decided on 10.09.2020]

Case BriefsHigh Courts

Orissa High Court: Dr A.K. Rath, J. dismissed an appeal seeking to reverse a judgment relating to suit for declaration.

In the present facts of the case, the suit property was jointly recorded in the names of three cousin brothers, wherein the Odisha Record of Rights (ROR) had been published. The partition of the said property was effected amongst the members of the joint family by a registered partition deed and was allotted to one of the three cousin brothers, Baidhar. Due to the untimely death of the wife and son of Baidhar, he resided in the property with the plaintiff and out of love and affection, Baidhar executed a will in favour of the plaintiff. After the demise of Baidhar, the plaintiff became the owner in possession of the suit property. Erroneously, the R.O.R recorded jointly in the name of both the parties and thus, the plaintiff filed an application for declaration of suit. The Learned trial court dismissed the suit holding that the will was not probated and the plaintiff had not acquired by way of adverse possession. In the appeal proceedings, the appellate court also held that the plaintiff had failed to prove that he has perfected title by way of adverse possession and during the pendency of the appeal proceedings both the plaintiff and the respondent expired due to which their legal representatives had substituted.

During the present matter, the counsel representing the appellants, Sarojananda Mishra submitted that the plaintiff is in possession of the suit land for more than twelve years peacefully and as a result has perfected title by way of adverse possession.

The advocate representing the respondents, Stayabadi Mantry, objected to the same and submitted that the adverse possession is a mixed question of law and fact. Thus, the courts had rightly rejected the claim of the plaintiff. He placed reliance on the case of Nabin Chandra Mohanta v. State of Orissa, R.S.A. No. 396 of 2004 wherein the Court held that, “Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence”.

The present Bench upon perusal of the facts and the records stated that even if the plaintiffs are found to be in adverse possession, they cannot seek a declaration for the same. The Court also stated that the mere possession of suit property for a long period of time is not sufficient to declare the plaintiff has perfected the title by way of adverse possession unless the classical requirements of adverse possession are met and the question of adverse possession not only involves question of law but also involves question of fact. [Bairagi Charan Mohapatra v. Surendra Mohapatra, 2019 SCC OnLine Ori 303, decided on 01-08-2019]

Case BriefsHigh Courts

Gauhati High Court: Sanjay Kumar Medhi, J. dismissed an appeal filed against the judgment of the Additional Chief Judicial Magistrate whereby he had acquitted the accused-respondents of the charges under various sections of IPC including Section 447 (punishment for criminal trespass).

The complainant-appellant had alleged that the accused came in a group armed with sticks and spades, and they dispossessed the complainant from his plot of land. The accused were tried for various offences. The trial court, however, acquitted them of all the charges. Aggrieved thereby, the complainant filed the present appeal.

R. Goswami, Advocate, made contentions on behalf of the appellant. Per contra, A. Choudhary, Advocate, represented the accused-respondents.

The High Court noted that though the allegation of criminal trespass was made, the ingredients of criminal trespass did not appear to be made out. Also, a meeting was convened between the parties to decided the ownership of the subject land which was unsuccessful. Therefore, opined the Court: “In absence of a determination of ownership, the allegation of trespassing cannot be substantiated.” It was observed: “To bring home the charge of trespass, it has to be established that there has been unlawful entry upon a property which is in the possession of another and such unlawful entry should be with an intent to commit an offense or to intimidate, interested or annoyed possessor of the property.”

In the present case, there was no evidence to prove the aforesaid ingredients of trespass. It was also transpired that the parties were related to each other. In Court’s opinion, the impugned judgment being based on the reasons germane to the facts and circumstances of the case, the interference with the same was not warranted. The appeal was consequently dismissed.[Biswajit Paul v. State of Assam, 2019 SCC OnLine Gau 3011, decided on 25-07-2019]

Case BriefsHigh Courts

Karnataka High Court: The Bench of Krishna S. Dixit, J., allowed petition filed by a senior citizen challenging wrongful usurpation of his property.

Respondent herein had unauthorizedly appropriated petitioner’s land measuring 63,162 square feet without any acquisition process, for the formation of roads, parks. Petitioner was given no compensation for his land even after 16 years of acquisition. Aggrieved thereby, he filed the instant petition seeking restoration of his land and compensation of Rs 5 crores for illegal utilization of his land.

Petitioner’s contention was that respondent’s act was a gross violation of his constitutional right to property guaranteed under Article 300-A of the Constitution of India.

The Court took note of respondent’s resolution proposing to give 50 percent of the site area to petitioner and observed that instead of taking steps for implementation thereof, respondent passed another resolution stating that in view of one government order, petitioner would be granted 50 percent of the developed area, which was unconscionable. The second resolution was also not given effect.

It was opined that the institution of private property is the focal point of constitutional jurisprudence. Forcible or non-consensual taking away of property by the State or its instrumentalities, sans lawful acquisition process offends the pith and substance of Article 300-A which guarantees protection to private property from State interference. It was held that State and its instrumentalities cannot justify usurpation of private property without legal process on the ground that the same was for public use.

In view of the above, the respondent was directed to give ownership and possession of the developed area of subject land to the petitioner and pay Rs 1 lakh as damages.[P.G. Beliappa v. Bangalore Development Authority, 2019 SCC OnLine Kar 187, Order dated 01-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. dismissed an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of trial court’s order whereby prayer made by the petitioner regarding the release of a vehicle was dismissed.

In the instant case, OP-3 had filed a complaint alleging that opposite party 2 (OP-2) had taken a Scorpio vehicle belonging to him on the pretext of marriage in family assuring that he would return it. The vehicle was not returned and OP-3 was told by OP-2 that it had been stolen. OP-3 was assured that the vehicle would be located or OP-2 would pay him money for the same. On enquiring, OP-3 found that the vehicle had been allegedly sold to the petitioner and was with him. The vehicle was seized by the police pursuant to the lodging of FIR by OP-3.

The Court noted that the purported agreement of sale of vehicle relied upon by the petitioner was not even duly registered. Further, the certificate of registration for the vehicle was still in the name of opposite party 3.

It was held that the only document to prove ownership of a vehicle is a certificate issued by the transport department, i.e., the certificate of registration. Till such time the name of any other person is not duly entered in the official records and reflected in the certificate of registration with regard to the vehicle, vehicle could not be released in favour of a person who comes before with an unregistered agreement for sale of vehicle. [Md. Abdullah v. State of Bihar, 2019 SCC OnLine Pat 51, Order dated 17-01 2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and Indira Banerjee, JJ. allowed an appeal while setting aside the judgment and order of the Kerala High Court concerning a ‘gift deed’.

In the present case, the facts of the case are that the appellant executed a purported gift deed in favour of the respondent with the expectation that the respondent will look after the appellant and her husband. The said deed was to come into effect only after the death of the appellant and her husband. On 02-06-1999, the appellant executed the deed of cancellation and after a period of 8 months, respondent filed a suit for declaration that the cancellation deed executed by the appellant is null and void. Appellant filed original suit for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in suit property.

The Original Suit was challenged before the Munsif, however, it was decreed. The district court upheld the decree, but the High Court set aside the concurrent findings and dismissed the suit.

The Supreme Court on placing the analysis of provisions of Transfer of Property Act along with the decisions pertaining to the same subject matter stated that:

“A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.”

On placing reliance on Reninkuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, in which it was stated that “there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property”, the Court stated that the deed of transfer was executed for consideration and was, in any case, conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. Therefore, the Court held that there was no completed gift of the property and the appellant was within her right in cancelling the deed.

The appeal was allowed and judgment and order under appeal were set aside. [S. Sarojini Amma v. Velayudhan Pillai Sreekumar,2018 SCC OnLine SC 2200, decided on 26-10-2018]