Operation of Transfer:
(Sec.8 of the Transfer of Property Act 1882)
“Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include,–
Where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;
Where the property is machinery attached to earth, the movable parts thereof;
Where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith;
Where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer.
Where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
The Supreme Court in Guru Foundation Rattan and sons, 1981 (4) SCC 634, observed as,
“Interminable, time consuming, complex and expensive court procedures implied jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 (Act for short).
However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep.
Experience shows and law reporters bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary.
Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with “legalese” of unforeseeable complexity. This case amply demonstrates the same.”
Vested Interest in property transfers
Sec.19 of the Transfer of Property Act, 1882.
Sec.19 Vested Interest:
“Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.”
A vested interest is not defeated by the death of the transferee before he obtains possession.
Contingent Interest in property transfers
Sec.21 of the Transfer of Property Act, 1882
Sec.21 Contingent Interest:
“Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.”
“Desertion is a ground for divorce”
The Madras High Court had an occasion to discuss the five essential factors which must be established under Sec.13(1)(i-b) of the Hindu Marriage Act 1955 to succeed in the petition for divorce on the ground of desertion are as follows:-
- The spouses must have parted or terminated all joint life;
- The deserting spouse must have an intention to desert the other spouse;
- The deserted spouse must not have agreed to the separation;
- The desertion must have been without cause;
- This state of affairs must be continued for at least two years immediately preceding the presentation of the petition.
(see 1997 (III) CTC 718)
In T.Rangaswami v. T.Aravindammal, AIR 1957 Mad 243, while dealing with the scope of the said section, Ramasamy, J., has held as follows:-
“In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserted spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home. In such cases the actual abandoning of the matrimonial home is not the act of the person against whom all allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behavior of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called “constructive” desertions.
The desertion may be terminated in the following ways:
- By resumption of cohabitation between the spouses;
- By the desertion becoming a separation of the spouses by agreement;
- By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation;
- By the deserting spouse becoming insane.”
“All Trustees shall act collectively”
In Narayanan Iyer’s Indian Trust Act 4th Edition (1992) the learned author has said thus:-
Managing Trustees:- Where there are more than one trustee, Section 48 of the Act lays down that all of them must join since one of them cannot act singly. Accordingly managing trustees have no power to create lease without concurrence of other trustees. See Abdul Rahman v. Angul Bala, AIR 1974 Cal. 16.
If all the trustees do not join in execution of the conveyance of the trust property, the conveyance is invalid and such a conveyance passed no title to the alienee. All trustees from one collective trustee and must exercise powers in joint capacity and not separately. Vide Supreme Court in Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633.
Consequently, a lease is transfer within the meaning of Section 15 of the Transfer of Property Act, created by one of the co-trustees is bad in law and does not convey any right, title or interest to the lessee defendant and he becomes a trespasser. See M/s. Karnataka Trader, Hubli v. Hiren Shamji, AIR 1987 Kar. 264.
Marriage is one of the necessary ‘samaskaras or religious rites’
The Division Bench of Madras High Court in Devulapalli Kameswara Sastri and others v. Polavarapu Veeracharlu, minor by his guardian Kodamachi Bhimanna, ILR 34 Mad. 422 has held thus:-
“The marriage of a member of the coparcenary is a family purpose; and where it is reasonably necessary on the part of a prudent manager to borrow money for such purpose, the transaction will bind the coparcenary whether they are Sudras or other classes.
Marriage is one of the necessary samaskaras or religious rites, in the case of Sudras as well as other classes. The necessity, which will justify an alienation by the manager is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper.”
In G.Gopalakrishnam Razu, minor by mother Bangaratta v. S.VEnkatanarasu Razu and 3 others, ILR 37 Mad. 273 a Full Bench of Madras High Court has concluded in the following manner:
“Marriage is obligatory on Hindus who do not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi and debts reasonably incurred for the marriage of a twice born Hindu male are binding on the joint family properties.”
In another Full Bench judgment of the Madras High Court in D.Srinivasa Iyengar v. Thiruvengadathaiyangar, ILR 38 Mad. 556 wherein the majority view is as follows:
“Marriage is an obligatory ceremony for Hindus who do not desire to adopt the life of a Sanyasi; and a fund for the expenses of the marriage of unmarried co-sharers should be set apart at the partition of the paternal estate.”
Christian Inheritance under the Indian Succession Act 1925
Sec.33: The Indian Succession Act 1925
- Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow—
(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;
(b) 1*[save as provided by section 33A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;
(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.
The Supreme Court in Krishna Kishore Firm v. The Govt of AP and others, AIR 1990 SC 2292 had occasion to consider the question as to what is the difference between the “lawful possession” and “legal possession”.
Their Lordships held thus:-
“True the appellant was neither owner nor lessee. Yet was his possession forbidden in law? Was there no excuse for his possession?
The error committed by High Court was to equate lawful with legal.
Legal and lawful, normally, convey the same sense and are usually interchangeable. What is legal is lawful, but what is lawful may be so without being formally legal.
“The principal distinction between the terms ‘lawful’ and ‘legal’ is that former contemplates the substance of law, the latter the form of law.”
To any of an act that it is lawful implies that it is authorised, sanctioned or at any rate not forbidden by law. (Black’s Law Dictionary.
Same thought about lawful has been brought out by Pollock and Wright by explaining that ‘Lawful possession’ means in legal possession which is also rightful or at least excusable.
Thus that which is not stricto legalo may yet be lawful. It should not be forbidden by law.
In fact, legal is associated with provisions in the Act, Rules etc. Whereas lawful visualises all that is not illegal against law or even permissible.
Lawful is wider in connotation than legal. Although provision in Specific Performance Act empowering a person or tenant to recover possession if he has been evicted forcibly by the landlord may be juridical and not lawful or a tenant holding-over is not in lawful possession unless landlord agrees or acquiesces expressly or impliedly but that does not alter the legal position about possession of a person not legal yet not without interest.”
Review Power of High Court under Order 47 Rule 1 of the Civil Procedure Code 1908
The Supreme Court while considering the scope of review power of High Court under Order 47 Rule 1 of CPC, in Meera Bhanja v. Nirmala Kumari Choudhury, held as under:-
“The review proceedings are not by way of any appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. The review petition of error apparent on the face of the record and not on any other ground. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions.
The limitation of powers on court under Order 47 Rule 1, CPC is similar to jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution.”