Transfer

V.N. Sarin v. Ajit Kumar Poplai

FACTS:

● The appellant became a tenant of premises owned by a Hindu undivided family of which
respondent No. 2 was the head. On the partition of the family property, the said premises
fell to the share of respondent No. 1.

● An application was thereafter made to the Rent Controller by respondent No. 1 under s.
14(1) (e) of the Delhi Rent Control Act, 1958 (hereinafter called ‘the Act’), seeking on
the ground of personal need, the eviction of the appellant from the premises.

● The appellant resisted the application, inter alia, on the ground that respondent No. 1 had
acquired premises by ‘transfer’ within the meaning of s. 14(6) of the Act he was
precluded from taking advantage of s. 14 (1 ) (e) of the Act.

● After passing through various stages the matter went to the High Court which held that a
share acquired on the partition of a Hindu undivided family was not an ‘acquisition by
transfer’ contemplated by s. 14(6) of the Act.

● The appellant came to the Supreme Court by Special Leave petition.

ISSUE:

● Whether the partition of coparcenary property among the coparceners under Hindu Law
is a transfer within the meaning of S. 53 of the Transfer of Property Act, 1882, and
therefore, can it be said to be “an acquisition by transfer” within the meaning of s. 14(6)
of the Act?

RULE:

● The partition of coparcenary property does not amount to transfer. The joint family
members (all the coparceners) were enjoying the property rights and had an interest in the
property beforehand. The division of coparcenary property is the division of rights among
the coparceners, collectively into individual or specific rights.
HELD:

● The Supreme Court held that Section 14 (6) did not create a bar against the institution of
the application by respondent No. 1 for evicting the appellant, as the partition of
coparcenary property among the coparceners under Hindu Law is not a transfer within
the meaning of S. 53 of the Transfer of Property Act, 1882.

● S.14(1) (e)it cannot be held that a person who acquired property bypartition can fall
within the scope of its provisions even though the property which he acquired by partition
did in a sense belong to him before such transfer.

● That the partition of coparcenary property does not amount to transfer. The joint family
members (all the coparceners) were enjoying the property rights and had an interest in the
property beforehand. The division of coparcenary property is the division of rights among
the coparceners, collectively into individual or specific rights.

General Rules of Transfer

Zoroastrian Co-operative Housing Society Ltd v. District Registrar

FACTS:

● The Zoroastrian Co-operative Society was registered in 1926 under the Bombay
Co-operative Societies Act of 1925 and subsequently under the Gujarat Co-operative
Societies Act of 1961.

● The bye laws of the Society states that other members must belong to the Parsi
community in addition to complying with all the other byelaws.

● The son of a member of the society came to own Plot number 7 after his father passed
away.

● The son wanted to demolish the bungalow on Plot 7 and construct a commercial building,
this was rejected by the society as a violation of their byelaws.

● Later, the son sought permission to demolish the bungalow and erect residential flats to
be sold to Parsis, this request was agreed to by the society.
 ● The son had, several years later, begun negotiations with a non-Parsi builders association
to build the flats. This was in violation of the bye laws that restricted the sale of shares or
property to a non-Parsi.

● The society challenged this in front of the Board of Nominees who held that membership
could not be restricted to Parsis only. The society then challenged the order of the Board
before the Gujarat State Co-operative Societies Tribunal who held that the membership
restriction was violative of Article 300A of the Constitution and thus, invalid. When
challenged before the High Court of Gujarat, the appeal was dismissed, and the judge
held that the restriction was unfair and could be dealt with Sections 24 and 30 of the
Gujarat Co-operative Societies Act.

ISSUE:

● Whether the bye law restricting membership to Parsis was valid?

RULE:

● The Co-operative Societies Act provides that no society shall, without sufficient cause,
refuse admission to and person duly qualified under the provisions of the Act and its
byelaws.

● In the case of a housing society, there should be a bond of common habits and common
usage among the members. This bond is found most in community or caste groups in
India.

● The concept of public policy in the present context must be looked for under the Act and,
in the absence of any such provision, it cannot be held that the byelaws are opposed to
public policy.

HELD:

● The Supreme Court held that so long as an approved byelaw stands, it could not be held
that the formation of that society is against public policy and the society cannot be
directed to amend basic bye laws relating to membership.
 ● It was further held that the Constitutional goal of doing away with religious and
sex-based discrimination must be achieved by legislative intervention and not by a court
coining a theory that whatever is not consistent with the theory of the Constitution can be
held to be against public policy.

● The court recognised that the son became a member only on the death of his father and
upon doing so, he subscribed to the bye laws. He accepted all the restrictions placed on a
member.

● Ultimately, the court allowed the appeal, set aside all previous judgements and upheld the
right of the Society to insist that property under the Society must be dealt with in
accordance with the bye laws.

Rajes Kanta Roy v. Santi Debi

FACTS:

● Ramani Kanta Roy had three children, Rajes, Rabindra and Ramendra. Ramani also had a
significant amount of property to his name.

● Rabindra died in 1938 without naming a legal representative and left behind his widow,
Santi Debi.

● In 1934, Ramani created an endowment of some of his properties and appointed his three
sons as shebaits

● After Rabindra died, Santi Debi filed a suit against the family in 1941 on the grounds that
she was entitled to function as a shebait in place of her husband.

● The suit was terminated recognising Santi Debi’s right as a co-shebait.

● A few years later, Ramani and his sons filed a suit against Santi Debi, based on the fact
that the marriage between Santi and Rabindra was null as it was between persons with
prohibited degrees.

● During that suit, Ramani executed a registered trust deed for all his properties in July,
1945.
 ● Rajes was appointed to hold the properties under trust. After this, the father died.

● The suit was settled in December of 1946 and Santi Debi gave up her rights under the
1941 case and agreed to receive a monthly allowance of Rs. 475 payables for the rest of
her life.

● If the payment was defaulted, however, she could move forward with the execution of the
deed.

● Payment was defaulted after February 1948, and she filed suit asking for appropriate
measures to ensure justice.

● The case was heard in a Subordinate Court as well as the High Court of Calcutta before
being appealed to the Supreme Court.

ISSUE:

● Whether Santi Debi should be entitled to the monthly maintenance?

● Whether Santi Debi can execute the previous sale deed?

● Whether Rajes’ objections regarding the marriage between Santi Debi and Rabindra are
valid?

RULE:

● The interest in the present deed was a contingent one, it would be vested only once the
contingency of the deed ceases, and this would be only if either the dues specified in the
deed were discharged or if the interest of the deed were to cease.

HELD:

● The Supreme Court held that Santi Debi had sacrificed all her rights with relation to the
property of Ramani Kanta Roy.

● The court further overruled the objection that the marriage between Santi Debi and
Rabindra was ultra vires.
 ● The court further clarified that Santi Debi would be entitled to claim maintenance after
the execution of the decree as then the interest of the sons would become a vested one.

Omniplast Pvt. Ltd vs Haryana State Industrial

FACTS

The challenge in the present writ petition is to the clause 12 incorporated in the conveyance deed
executed by the respondent Corporation in favour of the petitioner contemplating that the
petitioner seeks specific written approval from Haryana State Infrastructure and Industrial
Development Corporation ('HSIIDC' for Short) before creating any charge or mortgaging the
freehold land or building as illegal, arbitrary, unjust, discriminatory and unconstitutional.

CONTENTIONS OF PARTIES
In reply filed on behalf of the respondent hsiidc, it is averred that a conveyance deed was
executed by the corporation in favour of the petitioner on 9.10.2009. The terms of the
conveyance deed including seeking permission to mortgage has been accepted by the petitioner.
Therefore, the petitioner cannot be permitted to challenge the terms of the conveyance deed at
this point of time... Learned counsel for the respondent... Submits that as per section 31 of the
transfer of property act, 1882, the corporation continues to have an interest an charge over the
property till such time as all its dues are cleared like enhancement of price of the plot and other
dues. It was contended that once an agreement, i. E. , conveyance deed has been executed, the
terms and conditions of such agreement are binding and cannot be avoided. A conveyance deed
was executed by the corporation in favour of the petitioner on 9.10.2009, the clause have been
accepted by the petitioner at the time of execution of the said deed and as such, there can be no
challenge subsequently.

HELD

... The deed of conveyance had not created any absolute interest in favour of the allottee in
respect of the plot conveyed. For a transferee to deal with interest in the property transferred, as
if there were no such direction regarding the particular manner of enjoyment of the property, the
instrument in favour of the transferee has been created. This is clearly discernible from section
11 of the tp act. The section rests on the principle that any condition which is repugnant to the
interest created is void and when property is transferred absolutely, it must be done with all its
legal incidents. That apart, 31 of the tp act is to meet the with the shall or in case a uncertain
event shall not may be event aforesaid contention ... On a transfer of an that it shall cease to exist
in case a [indu ] property section interest enough therein created condition superadded happen,
specified happen. Specified uncertain kakkar

Undoubtedly, once a conveyance deed has been executed, the terms and conditions therein are
binding upon the parties. The HSIIDC has not given up its interest unequivocally in the plot
allotted to the petitioner as it is subject to claim enhanced compensation and also charges against
the said plot. Therefore, Section 31 of the Transfer of Property Act comes into operation.
HSIIDC has to safeguard its interest to ensure that the allottee/ transferee complies with the
clauses of the allotment like raising of construction within specified time, completion of the
project for which the Industrial Plot was allotted...In the event of default by an allottee, the
corporation should have right to recover the amount from the secured creditor as well...In the
absence of the permission, the charge or interest of the Corporation against the plot allotted
cannot be enforced. Thus, it cannot be said that the said condition imposed by HSIIDC is illegal.

KOKILAMBAL V. N. RAMAN

Facts: The settlement deeds created by Koiklambal in favour of the deceased Varadan... clearly
says that since Kokilaambal had no son, and her husband Konicka Mudaliyar during his life time
has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of
love and affection, she has settled that the income derived from the properties, i.e., Door No. 43,
KakKaran Basin Road, shall be enjoyed by herself and Varadan absolutely...The appellant No. 1
further settled that she would not alienate the property but both of them reserve the right to
alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the
properties in question will vest absolutely after the death of the appellant No. 1...”

Settlement is one of the recognised modes of transfer of moveable and immoveable properties...
The Courts have accepted such mode as legal and valid mode of transfer of properties. Courts
have emphasised that in order to find out the correct intent of the settlor, the settlement deed has
to be read as a whole and draw their interference of its content. Therefore, it has always been
emphasised that the terms of the settlement should be closely examined and the intention of the
settlor should be given effect to. Sometimes there is absolute vesting and sometimes there is
contingent vesting as contemplated in Sections 19 and 21 of the transfer of property act 1882. In
order to ascertain the true intention of the settlor one has to closely scrutinise the settlement
deed, whether the intention of the settlor was to divest the property in his lifetime or to divest the
property contingently on the happening of a certain event.

“These settlement deeds, in our opinion, clearly make out that Varadan was not made absolute
owner of the property during the life time of the settlor, Kokilambal...The settlor, Kokilambal
had not completely divested her right in favour of the deceased Varadan but it was contingent
one that it would vest after her death. Therefore, the intention of the settlor was very clear that
the settlement was to come into effect after the death of settlor, Koiklambal...On account of the
death of Varadan , Kokilambal who was the settlor remained the sole owner of the suit property
because settlement deed had come to an end on account of the death of settled, Varadan.
Therefore, she had the right to execute a fresh deed of settlement in favour of appellant Nos. 2 &
3. Thus, we do not find that subsequent settlement made by the appellant No. 1 in favour of
Appellant Nos. 2 and 3 suffers from any illegality...