Case BriefsSupreme Court

Supreme Court: The Division Bench of R.F. Nariman and B.R. Gavai, JJ., while addressing a significant and interesting question of law expressed that,

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha”

Interesting Question of Law

Whether the power of a Court under Section 34 of the Arbitration and Conciliation Act, 1996 to ‘set aside’ an award of an arbitrator would include the power to modify such an award?

Madras High Court decision 

A Division Bench of the Madras High Court had disposed of a large number of appeals filed under Section 37 of the said Act laying down as a matter of law that, at least insofar as arbitral awards made under the National Highways Act, 1956, Section 34 of the Arbitration Act must be so read as to permit modification of an arbitral award made under the National Highways Act so as to enhance compensation awarded by an Arbitrator.

Factual Matrix

The crux of the matter was that the above-stated appeals concerned notifications issued under the provisions of National Highways Act and awards passed. The said notifications were of the year 2009 onwards and the awards made were based on the ‘guideline value’ of the lands in question and not on the basis of sale deeds of similar lands.

It was stated that the competent authority had granted abysmally low amounts.

In Section 34 petitions that were filed before the District and Sessions Judge, the said amounts were enhanced to Rs 645 per sq. meter and the award of the Collector was therefore modified by the District Court in exercise of jurisdiction under Section 34 of the Arbitration Act.

Further, in the appeal filed to Division Bench, the above-stated modification was upheld, with there being a remand order to fix compensation for certain trees and crops.

Analysis, Law and Decision

Section 34 of the Arbitration Act

Bench noted that far from Section 34 being in the nature of an appellate provision, it provides only for setting aside awards on very limited grounds, such grounds being contained in sub-sections (2) and (3) of Section 34.

It is the opinion of the arbitral tribunal which counts in order to eliminate the grounds for setting aside the award, which may be indicated by the court hearing the Section 34 application.

Further, the Court stated that Section 34 is modelled on the UNCITRAL Model Law on International Commercial Arbitration, 1985 under which no power to modify an award is given to a court hearing a challenge to an award.

Old v. New

Elaborating more, Bench added that by way of contrast, under Sections 15 and 16 of the Arbitration Act, 1940, the court is given the power to modify or correct an award in the circumstances mentioned in Section 15, apart from a power to remit the award under Section 16.

Thus, under the scheme of the old Act, an award may be remitted, modified or otherwise set aside given the grounds contained in Section 30 of the 1940 Act, which are broader than the grounds contained in Section 34 of the 1996 Act.

In Supreme Court’s decision of MMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163, it was decided that Section 34 proceeding does not contain any challenge on the merits of the award.

Adding to the above, Court stated that the point raised in the appeals stands concluded in McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181.

Delhi High Court’s decision in Cybernetics Network (P) Ltd. v. Bisquare Technologies (P) Ltd., 2012 SCC OnLine Del 1155 is also instructive.

Court’s opinion

Hence, in Court’s opinion, there cannot be a doubt that Section 24 of the Arbitration Act, 1996 cannot be held to include within it a power to modify an award.

McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181 was followed in Kinnari Mullick v. Ghanshyam Das Damani, (2018) 11 SCC 328. Also, in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157, a recent judgment of this Court also followed McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181 stating that there is no power to modify an arbitral award under Section 34 as:

(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.

Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.

Judicial Trend

Therefore, in view of the above discussed, it can be stated that this question has now been settled finally by at least 3 decisions of the Supreme Court.

To state that the judicial trend appears to favour an interpretation that would read into Section 34 a power to modify, revise or vary the award would be to ignore the previous law contained in the 1940 Act; as also to ignore the fact that the 1996 Act was enacted based on the UNCITRAL Model Law on International Commercial Arbitration, 1985.

Coming to the submission in support of the impugned judgment that the fact that the Central Government appoints an arbitrator and the arbitration would therefore not be consensual, resulting in a government servant rubber-stamping an award which then cannot be challenged on its merits, cannot possibly lead to the conclusion that, therefore, a challenge on merits must be provided driving a coach and four through Section 34 of the Arbitration Act, 1996. The impugned judgment is also incorrect on this score.

Lastly, the Supreme Court stated that if one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha and doing what, according to the justice of a case, ought to be done.

Parliament very clearly intended that no power of modification of an award exists in Section 34 of the Arbitration Act, 1996.

In several cases, the NHAI has not filed appeals even in matters which are similar i.e., arising from the same Section 3A Notification, as a result of which certain landowners have got away with enhanced compensation given to them by the District Court. Also, we cannot shut our eyes to the fact the arbitrator has awarded compensation on a completely perverse basis i.e., by taking into account ‘guideline value’ which is relevant only for stamp duty purposes, and not taking into account sale deeds which would have reflected the proper market value of the land.

Differential Compensation

The Court noted that in several cases, the NHAI has not filed appeals even in matters which are similar i.e., arising from the same Section 3A Notification, as a result of which certain landowners have got away with enhanced compensation given to them by the District Court. Also, the arbitrator has awarded compensation on a completely perverse basis i.e., by taking into account ‘guideline value’ which is relevant only for stamp duty purposes, and not taking into account sale deeds that would have reflected the proper market value of the land.

The Court was of the opinion that the said differential compensation cannot be awarded on the ground that a different public purpose is sought to be achieved. Also, the legislature cannot say that, however laudable the public purpose and however important it is to expedite the process of land acquisition, differential compensation is to be paid depending upon the public purpose involved or the statute involved.


Take the case of a single owner of land who has two parcels of land adjacent to each other. One parcel of land abuts the national highway, whereas the other parcel of land is at some distance from the national highway. Can it be said that the land which abuts the national highway, and which is acquired under the National Highways Act, will yield a compensation much lesser than the adjacent land which is acquired under the Land Acquisition Act only because in the former case, an award is by a government servant which cannot be challenged on merits, as opposed to an award made under Part III of the Land Acquisition Act by the reference Court with two appeals in which the merits of the award can be gone into? There can be no doubt that discrimination would be writ large in such cases.

However, since the NH Amendment Act, 1997 had not been challenged before the Court, it refrained from saying anything more. It was said that in the facts and circumstances of the case interference under Article 136 was not called for.[National Highways v. M. Hakeem,  2021 SCC OnLine SC 473, decided on 20-07-2021]

Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J., allowed the petition against the impugned order of Munsiff Court, thereby upholding the order of returning plaint to the Family Court.

The petitioners filed a suit (O.S.No.310/2014) for declaring them as wife and son of the deceased, P.J.Suresh and also for declaring sale deed dated 28-03-2014 in respect of the suit property executed by defendant 2 to 4 in favour of defendant 6 at the instance of defendant-bank 1 was void and not binding on the plaintiffs. The plaint schedule property was mortgaged by the deceased in favour of defendant-bank at the time of availment of loan. Later on, when the deceased committed default in repayment of loan, the defendant-bank proceeded under the provisions of SARFAESI Act, 2002 and brought the property to sale. During the course of the auction proceeding, with the permission of defendant-bank, the property was sold to defendant 6 by defendants 2 to 5 who claimed to be the children, wife and mother of the deceased.

The grievances of the petitioners were that, petitioner 1 was the legally wedded wife of the deceased and petitioner 2 was the son and they alone being the sole legal heirs were the property owners, therefore, the impugned sale deed was null and void. The main relief that was sought,  was for declaring petitioner 1 as the legally wedded wife of the deceased. The defendant-bank raised the question of maintainability of suit and contended that it was not liable to be tried before the Munsiff Court as the issue involved was liable to be dealt with under the provisions of the Family Courts Act,1984.

The Bench expressed that the view taken by the court below were correct and were in accordance with law. The Court, while explaining S. 7 of Family Courts Act,1984 stated, as per Explanation to Section 7(1) (b) of the Act, a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person could be brought only before a Family Court and there was exclusion of jurisdiction of Civil Court in this respect. The question as to whether sale deed in favour of defendant 6 was null and void was consequential upon the decision on the alleged status claimed by petitioner 1. The Bench observed that without deciding the question as to the status of petitioner 1, the validity as to the sale deed could not be decided.

Considering the above, the Bench dismissed the instant petition, holding that the impugned order of the court below of returning plaint to be presented before Family Court was perfectly legal and was not liable to be interfered with. [Jaminimol v. Federal Bank Ltd.,  2021 SCC OnLine Ker 381, decided on 22-01-2021]

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has held that for invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved and that in case of failure to establish the existence of fraud, there is no occasion for its discovery.

Background of the case

The dispute dating back to 1990 pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. However, according to the plaintiff, reposing complete trust in her step brothers to step-brothers, she had signed on blank papers under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.

After analysing the evidence on record, the trial Court dismissed the suit filed by the plaintiff and this order was upheld by the appellate Court. The High Court, however, reversed the concurrent opinions of two Courts and held that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position.

Challenging the High Court’s decision before the Supreme Court, the defendants argued that interference by the High Court was unwarranted as the same did not involve any substantial question of law. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­-contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers.


The Court held that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds were unsubstantiated and untenable. Here are the key factors taken into consideration by the Court:

  • As the record revealed that the disputed documents were registered, the Court, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, was of the opinion that the initial onus was on the plaintiff, who had challenged the stated registered document.
  • As the execution of the 1990 GPA and the sale deeds in the present cases was denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. However, both the attesting witnesses were not examined.

“The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.”

  • The evidence of plaintiff’s deed writer (PW4) unveiled that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.

“… the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous.   In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard  the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at  the  Tehsil  complex,  Dasuya.  Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.”

  • Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.


Concluding that the plaintiff failed to prove that her signatures on the subject documents are forged, the Court reiterated that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

“In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.”

[Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936, decided on 16.11.2020]

*Justice AM Khanwilkar has penned this judgment 

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J., upheld the impugned judgment on merits.

The facts of the case are such that the suit land is an ancestral property of late Prema who inherited the property from his late father, and after his (Prema’s) death transferred the property through a will to his wife Lajwanti, i.e respondent 1 in the present case and not to his sons i.e. the petitioners in the instant case as they were not taking care of them. After his death, respondent 1 sold the property to other respondents by a sale deed. Aggrieved by the same, an application under Order XXXIX, Rules 1 and 2 Code of Civil Procedure was filed before Senior Civil Judge, Nadaun, District Hamirpur, H.P, praying therein for restraining the Respondent 1 from raising any construction or changing the nature of suit land who rejected the said prayer and the judgment was later affirmed by Additional District Judge, Hamirpur (HP) which stands challenged under the present petition under Article 227 Constitution of India before this court.

Counsel for the petitioners Naresh K Sharma submitted that the suit land is an ancestral property and hence the respondent 1 has no right to transfer the same and hence the sale deed must be declared null and void. It was also submitted that the ‘will’ by which the property was transferred to the wife of the deceased mentions that if the children take care of their mother, they will have a right over the property and because they are taking care of their mother, they have a right over the property and hence the sale deed shall be cancelled.

Counsel for the respondents submitted that the Respondent 1 has inherited the said property by will from her husband who inherited the same from his father and hence the suit land has lost its nature of being an ancestral joint Hindu coparcener property and entirely belongs to Respondent 1 and hence the sale effected by her stand valid.

The court observed that documentary evidence on record, clearly reveals that the suit land was inherited by Respondent 1 i.e Lajwanti through Will and as such, suit land lost its character of joint Hindu coparcener property, rather, it became the absolute property of defendant 1 by virtue of provisions underlying Section 14 of Hindu Succession Act, 1956 and hence there is no merit in the claim of the petitioners that the suit land is a joint Hindu coparcener property and Respondent 1 has no right to sell out the same without legal necessity.

 In view of the above, impugned judgment upheld and petition dismissed.[Kishori Lal v. Lajwanti, 2020 SCC OnLine HP 2073, decided on 28-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: In a revision petition challenging an order passed under Order 7 Rule 11 CPC; Raj Mohan Singh, J., allowed the petition while setting the order aside.

The present petition arises from the order dated 07-03-2020 passed by the Additional Civil Judge (Senior Division), Sirsa, vide which application under Order 7 Rule 11 CPC filed by the respondent was allowed and petitioner was directed to pay the ad valorem Court fee as per the market value of the suit property.

Counsel for the petitioner, Mohit Garg has submitted that there is a pending application before the trial court under Order 6 Rule 17 read with Order 1 Rule 10 and Section 151 CPC for amendment of the plaint. Through the proposed amendment, the petitioner intends to challenge the sale deed(s) executed by the plaintiff. In the event of acceptance of the said application under Order 6 Rule 17 CPC, the amended plaint would be tested at the threshold of Order 7 Rule 11 CPC. Consequently, if the proposed amendment is incorporated, the suit would be for declaration, challenging the sale deed and for possession.

The Court relied on the judgment delivered in the case of Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 which lays down the following principle-

“the executant of the sale deed if seeks cancellation of the deed, then the plaintiff has to pay the ad valorem Court fee on the consideration as shown in the deed.”

Based on this, the Court observed that the application under Order 6 Rule 17 CPC has to be decided before the decision of the application under Order 7 Rule 11 CPC. It is opined that the order dated 07-03-2020 passed by the trial court is pertinently illegal in nature.

“In any case, the pending application under Order 6 Rule 17 CPC ought to have been decided prior to the decision in the application under Order 7 Rule 11 CPC.”

In view of the above, the Court allowed the present revision petition directing the trial court to decide the application under Order 6 Rule 17 CPC. The Court also set aside the impugned order dated 07-03-2020. Only after consideration of the application under Order 6 Rule 17 will the trial court proceed with the application under Order 7 Rule 11 CPC.[Dera Baba Bhumman Shah Sangar Sarista v. Subhash Narula, 2020 SCC OnLine P&H 1625, decided on 08-10-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

A very efficacious, substantive and procedural mechanism to facilitate the realisation of deserving and intrinsic value of encumbered estates and other immovable properties – within the annals of the Transfer of Property Act, 1882 — strangely appears very rarely to have been invoked in Courts, which impression is inevitable because the case law on it is scarce, if not, none.

— Kerala High Court

Kerala High Court: Devan Ramachandran, J., addressed matter surrounding Section 57 of the Transfer of Property Act, which has attracted very little or no reported Judgments in India.

Section 57 of the Transfer of Property Act, 1882 enables any party to the sale of immovable property burdened by an encumbrance, to apply to Court for a declaration that the said property is freed from such encumbrance on deposit of sums to be adjudged by it; and for the issuance of a conveyance order or vesting order, proper for giving effect to the sale.

Bench examined the above-stated Section of the TP Act vigilantly from both academic and practical ambit.

Purpose of Section 57 of the TP Act

Intended to assist any party to the sale of immovable property, which is subject to an encumbrance, to fructify the sale for its fair value after receiving in deposit — for payment to the incumbrancer — the capitalised value of the periodical charge, or capital sum charged on the property, together with incidental charges.

Thus, the said Section enables the parties to a sale to invoke the jurisdiction of the Court for the purpose of fulfilling their contracts, notwithstanding the encumbrances on the property.

Section 57 of TP affirmatively provides that on the application of a party to a sale, the Court may, if it thinks fit, direct or allow payment into Court.

This section is intended to facilitate sale out of court, as much as it is for sale by a court or in execution of a decree.

When can Section 57 of TP Act not be applied? | Golden Rule 

In the Madras High Court decision of  Mallikarjuna Sastri v. Narasimha Rao, (1901) ILR 24 Mad 412, held that the said Section,

cannot be applied when it comes to a charge or encumbrance already adjudicated by a court and which has become part of a decree or even in a case of adjustment of a decree out of court.

Facts of the Case

Appellant and Respondents are siblings and their father’s property was partitioned in the year 1980, through a partition deed.

Partition Deed consisted of a covenant that both he and his brother must pay Rs 500 each to their sister within a year, failing which she can recover it, for which the said amounts would stand charged on the respective properties.


The Sister, who is also the first respondent in the present matter refused to accept the stated amount when offered by the appellant, due to which he is still obligated and burdened with the same.

Appellant due the stated obligation has been unable to execute the sale deed and in view of the circumstances, he approached the District Court under Section 57 of the TP Act volunteering to deposit the amount of Rs 500 in favour of the first respondent in order to obtain the declaration that the property is free from any encumbrance.

Though, the above-stated application to the District Court was dismissed on grounds of maintainability.

By the present appeal, the appellant has assailed the District Court’s Order.

Developments in the present appeal

Bench in an earlier order had directed the first respondent to file an affidavit stating that she is unwilling to take the money from the appellant with reasons.

The first respondent filed the affidavit stating that she is unwilling to take the said amount but the reasons placed by her were that due to personal issues with appellant along with the said amount not being offered within the stipulated time as stated in the Partition Deed she refused the said amount.

Counsels for Appellant and First Respondent are P. Thomas Geeverghese and Shiju Varghese, respectively.


On perusal of the facts and circumstances of the matter, Court stated that when the amount of Rs 500 alone stands charged on the property as a capital sum, without any further obligation on the appellant towards interests or other incidental expenses, it is irrefragible that if the appellant pays it to the first respondent or deposits it in the Court, the said encumbrance would stand extinguished.

In the affidavit filed by the first respondent, she only asserted that her refusal for the payment is for personal reasons.

Looking at the above stated, Court determined whether the appellant was justified in invoking Section 57 of the TP Act or not?

Bench stated that in light of the circumstances of the present case, there can be little divergence that the provisions of Section 57 of the TP Act would come to play.

Court noted that the first respondent only says that ‘her conscience is not willing to accept the money’ without showing any cause against its tender or deposit by the appellant.

Hence, in view of the above circumstances, Court finds the decision of District Court erring, since the appellant has clearly averred that he intends to sell his property as per the sale agreement submitted by him.

Since the first respondent failed to show any legally acceptable cause, the appellant is entitled to a declaration under Section 57 of the TP Act.

Therefore, the District Court’s decision is set aside and the appeal is allowed while permitting the appellant to tender the amount of Rs 500 to the first respondent by depositing it in the District Court.

In view of the above, the property will stand free from any charge, created by the Partition Deed. [M.P. Varghese v. Annamma Yacob, 2020 SCC OnLine Ker 3321, decided on 05-08-2020]

Case BriefsSupreme Court

Supreme Court: The 2-judge bench of Indu Malhotra and L Nageswara Rao, JJ has held that even when the entire sale consideration has not been paid, it could not be a ground for cancellation of the Sale Deed.

On effect of non-payment of sale price on validity of sale deed

The Court relied on the it’s verdict in Vidyadhar v. Manikrao, (1999) 3 SCC 573, wherein it was held that non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

On remedy under Order VII Rule 11

The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

“The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.”

The Court further explained that under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

“The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.”

The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

“The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.”

On the merits of the case

In the present case, the plaintiffs had filed the suit after a delay of 5 and ½ years and had sought for the relief of cancellation of the Sale Deed on the ground that even though they had executed the registered Sale Deed dated 02.07.2009 for a sale consideration of Rs.1,74,02,000, an amount of only Rs.40,000 was paid to them.

Considering the facts of the case, the Court said,

“If the case made out in the Plaint is to be believed, it would mean that almost 99% of the sale consideration i.e. Rs.1,73,62,000 allegedly remained unpaid throughout. It is, however inconceivable that if the payments had remained unpaid, the Plaintiffs would have remained completely silent for a period of over 5 and ½ years, without even issuing a legal notice for payment of the unpaid sale consideration, or instituting any proceeding for recovery of the amount, till the filing of the present suit in December 2014.”

The Court, hence, noticed that the delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs.

Considering the facts of the case and law in place, the Court held, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed.

[Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 SCC OnLine SC 562 , decided on 09.07.2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: A miscellaneous petition filed under Article 227 of the Constitution of India was allowed by Sanjay Dwivedi, J., where the petitioner challenged the order passed by Additional Commissioner under revenue proceedings.

In the instant petition, the respondent raised an objection that the petition was not maintainable under Article 227. The counsel for the respondent, D.K. Tripathi and Devika Singh, submitted that Commissioner of Revenue was not under superintendence power of the High Court and accordingly the petitioners cannot avail the superintendence jurisdiction of the High Court by filing a petition under Article 227 of the Constitution of India. On the contrary, the petitioner submitted that in all the quasi-judicial proceedings, the High Court can entertain petition under Article 227.

The counsel for the petitioner, Sumanta Bhattacharya, relied upon Manmohan Singh Jaitla v. Commissioner, 1984 (Supp) SCC 540, in which the Supreme Court had observed that “The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression ‘Tribunal’ as under in Article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.”

The Court for the particular issue relied on the abovementioned judgment and observed that Commissioner under the present circumstances was considered to be a quasi-judicial authority as he was functioning as a statutory authority prescribed under M.P. Land Revenue Code, 1959; hence the petition was maintainable under Article 227.

Another issue disputed was related to a property which was purchased by the petitioner and on the basis of the said sale deed they moved an application for mutation of their names which was allowed in the year 2004 and accordingly, the revenue records were corrected entering the name of the petitioners in respect of the land in question. It was alleged that subsequently in 2011 an appeal was filed by the said respondents challenging the mutation on the ground that the property sold to the petitioners by respondent was a joint family property and the respondent was one of the co-sharers in the same and he had sold the land in excess of his share and no notice before the mutation had been issued by the revenue authorities to them and as such, that mutation which was executed in favor of the petitioners got set aside. Against the said order the petitioner had filed an appeal before Sub-Divisional Officer and subsequently before Additional Commissioner and both the appeals were rejected against the petitioner. Hence the petitioner had filed the petition under Article 227.

The respondent argued that petitioners failed to establish any grounds and to substantiate as to how the order passed by the Additional Commissioner was contrary to law, they were not entitled to get any relief in the petition preferred under Article 227. In Shyam Shetty v. Rajendra Patil, 2101 (4) MPLJ 590, the Supreme Court had laid down the parameters that when High Court can interfere under Article 227, it was held that “the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority’ or High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.”

It was further observed that the Supreme Court stated that “it may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.” The reserved and exceptional power of judicial intervention was not to be exercised just for grant of relief in individual cases but was directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 was meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to a high degree of judicial discipline.

The Court opined that it was admitted position that one of respondent executed sale deed in favor of petitioners in the year 2001 but Court was not satisfied that despite taking note of such material facts, the Sub-Divisional Officer had not given any reason as to how the mutation which took place on the basis of sale deed can be said to be illegal. The Court further observed that thereafter, the Additional Commissioner had reiterated the findings given by the Sub-Divisional Officer and rejected the appeal. None of the revenue authorities in the orders passed by them have considered the impact of the sale deed executed by the respondent in favor of the petitioners. It was noteworthy to mention that the sale deed was a valid document and was the foundation for mutating the name of the holder of the sale deed. If the document of sale is available then the revenue authorities had no option but to mutate the name of the holder of the sale deed in the revenue records and as such, mutation done in favor of the petitioners cannot be set aside unless the sale deed executed in their favor was set aside by any competent court.

The Court thus opined that all the revenue authorities committed gross and material illegality while setting aside the mutation made in favor of the petitioners which was made, based on the sale deed. It was discussed by the Court that as far as power under Article 227 of the High Court to interfere while exercising its superintendence was concerned, it was observed that from perusal of the documents and orders passed by the revenue authorities and the discussion made that was a fit case in which Court can exercise power under Article 227 for the reasons that the order impugned was apparently illegal and suffered from errors of law and fact and was a clear example of patent perversity. Thus, the petition was allowed.[Keshri Nandan v. Pradeep Kumar, 2019 SCC OnLine MP 1521, decided on 03-07-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agarwal, J. allowed a petition filed by a Sub-Registrar duly appointed under Section 6 of the Registration Act, 1908, who was implicated in an FIR registered for the commission of the offences punishable under Sections 420, 120-B and 424 read with Section 34 IPC, and quashed the FIR insofar the petitioner was concerned.

While discharging his duties as Sub-Registrar, the petitioner allowed a sale deed to be registered. The said transaction regarding the subject land off-shot into the registration of FIR against the vendors alleging that the subject land was transferred fraudulently. The petitioner was also implicated in the FIR as an accused. Soumitra Kesharwani, Advocate for the petitioner, submitted that the petitioner purely acted in the capacity of Sub-Registrar under the Registration Act, and therefore, the FIR against him should be quashed. Per contra, S.K. Agrawal, Government Advocate submitted that the prosecution against the petitioner was strictly in accordance with the law and no exception could be taken against it. While, Govind Dewangan, Advocate for the vendors supported the case of the petitioner.

The question for consideration before the High Court was — whether the petitioner/Sub-Registrar while registering the sale deed, was required to make roving enquiry upon the absolute title of the vendors qua subject land before making registration of sale deed in favour of vendees?

The Court perused Sections 34(3) and 35(1) of the Registration Act and noted: “A conjoint reading of Sections 34 and 35 shows that the scope of enquiry to be made by the registering officer is limited by the Act, restricted to the factum of execution and the identity of the person executing document, other than the levy of stamp duty, collection of registration charges and the completion of procedural formalities such as attestation, etc. There is nothing in this provision requiring the registering officer to make a roving enquiry about the title of the person with regard to the property which is being sold by the sale of deed. In my considered opinion, provisions contained in Section 34(1) do not cast any duty on the registering officer to make an enquiry qua title of the person transferring the subject land to the transferee/purchaser”.

After referring to a conspectus of authorities, the Court reached a conclusion that registration of sale deed allowed by the petitioner/Sub-Registrar while acting in the capacity of Sub-Registrar was in accordance with law. Therefore, it was held that the FIR insofar as the petitioner was concerned, was liable to be quashed and orders were made accordingly. [Daduram Sidar v. State of Chhattisgarh, 2019 SCC OnLine Chh 59, decided on 20-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Vivek Rusia, J.

Facts of the case were such that petitioners are daughters of respondent who had sold his property to other respondents. After the sale was concluded one of the respondent to whom the property was sold filed an application under Sections 109 and 110 of M.P. Land Revenue Code, 1959 before the Tehsildar seeking mutation of his name which was allowed.

Petitioner being aggrieved by the same filed an appeal before the Sub-Divisional Officer Revenue, Garoth. SDO allowed the appeal and set aside the order passed by Tehsildar on the ground that the Tehsildar did not inquire about the status of the property if it was a self-earned property or ancestral property before passing the order of mutation. Being aggrieved by the order of SDO an appeal was preferred before the Additional Commissioner who set aside the order passed by SDO and therefore confirming the order of Tehsildar, hence, this petition was filed.

It was brought before Court that petitioners had already filed a Civil Suit challenging the sale deed which was executed by respondent in favour of one of the other respondent claiming their right and title over the property.

High Court observed the settled law that the orders passed by the Revenue Authority were not binding on the Civil Court and Revenue Court could not have decided the title of the property. Court viewed that lest a Civil Suit is pending the issues raised in this petition could be decided before Civil Court. With the aforementioned observation, this petition was dismissed. [Bharat Kunwar v. Mangilal, 2019 SCC OnLine MP 609, dated 05-04-2019]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed the petition which challenged the order of the trial court whereby the Court allowed the application of the defendant filed under Order 7 Rule 11(c) CPC and directed the plaintiff to pay ad-valorem court fees.

The facts of the case are as that the plaintiff-petitioner had instituted the suit for declaration of title and declaration that the sale deed executed by him in favor of the defendant as null and void. The litigation started between the parties and the defendant filed an application under Order 7 Rule 11(c) CPC stating that the plaintiff had instituted the suit for declaration that the registered sale deed as void. They contended that the plaintiff was the executant of the sale deed, he sought its cancellation and therefore He should pay ad-valorem court fees. Plaintiff filed an objection to the said application and their counsel, Mr Samir Kumar Mishra and Mr S. Rout contended that the sale deed was a nominal one and no consideration was passed and thus the plaintiff could put his own valuation and pay the court fees.

The Court, relying on the Umakanta Das v. Pradip Kumar Ray, 1986 SCC OnLine Ori 11, dismissed the petition and upheld the order of the trial court, directing the petitioners to pay the ad valorem court fees. [Kumar Soumyakanta Bisoi v. Banita Panda, 2018 SCC OnLine Ori 435, decided on 18-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of G. Narendar, J. hearing a civil writ petition set aside the order of revenue authority passed after 30 years, ruling that the said power was exercised after a lapse of a long time and hence was unreasonable.

The present matter pertained to mutation of revenue entries for a property by revenue authorities, suit in relation to which was pending in the court of Civil Judge, Nelamangala. Despite pendency of the suit in a lower court, the Assistant Commissioner, Bangalore rural district directed mutation of names of respondents 4 to 10 in the revenue records pursuant to registration of sale deed in 1977. The said order was confirmed by Deputy Commissioner, Bangalore district. The instant petition was filed for quashing of the order of Deputy Commissioner.

The Court noted that admittedly, the suit pending in lower court was instituted prior to the passing of orders by the Assistant Commissioner and the Deputy Commissioner. Relying on its judgment in S. Shivanna v. Tehsildar, Bangalore North Taluk, 2005 SCC OnLine Kar 604 the  High Court allowed the petition holding that the impugned orders were vitiated on the ground that the said power had been exercised after an extraordinary and unexplained delay of around 30 years.

Further, revenue courts ought not to adjudicate rights with regard to the immovable property once the dispute is seized of by a civil court. The impugned order of revenue authorities was set aside and they were directed to enter details of pending suit in the records which would be deleted after disposal of the suit. [Prakash v. Dy. Commr. Bangalore Rural District,2018 SCC OnLine Kar 2282, decided on 15-11-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Anjani Kumar Mishra, J. dismissed an appeal being devoid of merits.

The appellant has alleged that he met with an accident and got fractured and subsequently the defendant mislead him by obtained his signature by fraud on the pretext of awarding him compensation which was with the intention of executing a sale deed in the defendant’s favour for which no sale consideration till date has been paid to him. He also alleged that the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act making it cognizable only by the Revenue Court.

Going by the evidences presented, it was seen that the date on which the sale deed was executed, the defendant withdrew from the bank an amount equivalent to the sale amount. Also before the execution of the sale deed, the appellant’s name was recorded over the land in question thus the suit for cancellation of the sale deed needed no declaration of title making it cognizable by the Civil Court. Further when a sale deed was cancelled the revenue entry prior to it revives leaving no room for further declaration.

Accordingly, there was no question as to jurisdiction and henceforth the Court did not find any reason to interfere with the findings of the lower court. [Ram Pal v. Adesh Kumar,2018 SCC OnLine All 2925, 02-07-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Sanjay Kumar, J. set aside a trial court order abating a title suit ruling that declaration of voidability of a document is within the jurisdiction of a Civil Court.

Petitioner before this Court was the plaintiff in a title suit filed in trial court for cancellation of registered sale deed allegedly executed by her father in favour of the respondent-defendant. The petitioner’s submission before trial court was that the land in dispute is joint family property and that her aged had lost his consciousness for the last six months before his death. The respondent-defendant taking advantage of his mental condition executed the sale deed by committing fraud and forgery. The trial court, noting the submissions of the petitioner, abated the said suit in terms of Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Aggrieved thereby, the instant petition was filed for quashing the said order.

The High Court noted that the petitioner’s father neither received any consideration money nor executed any document nor affixed his thumb impression on the purported sale deed. The court relied on full bench decision in Ramkrit Singh v. State of Bihar, 1979 SCC OnLine Pat 30 and observed that if a document has to be set aside, civil suit would be maintainable; but a mere declaration of title or a mere declaration that the document is void can be done by the consideration authority. In the instant case, the purported sale deed was voidable and therefore it was within the jurisdiction of civil court to cancel or set aside the said document.

The Court noted that cancellation of purported sale deed was sought by petitioner on the grounds of fraud and forgery which could be determined only after recording evidence of the parties. As such, the impugned order was set aside and trial court was directed to proceed with the suit. [Gangotri Devi v. Bhukhan Singh,2018 SCC OnLine Pat 1984, decided on 02-11-2018]


Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Asha Arora, J. dismissed a revisional application filed by the petitioner assailing the order of the learned Additional District Judge who reversed the order of the learned Civil Judge granting a decree of pre-emption in favour of the petitioner.

The petitioner filed a case under Section 8 of West Bengal Land Reforms Act 1995, for pre-emption in respect of land which was transferred in favour of the opposite party (OP) by the predecessor-in-interest under a registered sale deed. Petitioner sought pre-emption of the land in question on the ground of adjoining ownership. The application for pre-emption was contested by the OP contending that the petitioner had waived his right, if any, by becoming an attesting witness to the above-mentioned registered sale deed. The application for pre-emption was allowed by the trial court. However, the Additional District Judge reversed the order of the trial court. Aggrieved thus, the petitioner was before the High Court in revision.

The High Court perused the record and found that the petitioner was indeed the attesting witness in the registered deed of sale of the land in question in favour of the OP. The Court relied on the decision of the Supreme Court in Jagad Bandhu Chatterjee v. Nilima Rani, (1969) 3 SCC 445, wherein it was held, under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. A waiver amounts nothing more than an intention not to insist upon the right. The acquiescence in the sale by any positive act amounting to relinquishment of pre-emptive right have the effect of forfeiture of such a right. The High Court was of the opinion that by being an attesting witness to the sale deed, the petitioner by his act and conduct acquiesced to the sale of land sought to be pre-empted. Such an act impliedly amounted to relinquishment of pre-emptive rights and thus the petitioner had waived his right. In such circumstances, the High Court found no irregularity with the order impugned. Therefore, the revision was dismissed. [Tusar Kanti Basu Chowdhury v. Nil Kamal Basu Chowdhury,2018 SCC OnLine Cal 3433, decided on 08-06-2018]