Case Law On Sale and Gift of Immoveable Property

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 8

1. A transaction would be a sale only if the entire consideration is money. — P.R.

Srinivasan v The Corporation of the City of Bangalore, 1957 Mys. L.J. 418 : ILR 1957
Mys. 167.

2. Incorrect recital regarding consideration by itself does not lead to an inference that
intention of parties was to convey title only on payment of consideration, or price can
be promised or paid at a later date also — Explained. — G. Hampamma v K.S.
Kalingappa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.

3. Dower due to a Muslim wife from her husband is valid consideration to support a
sale in favour or the wife in payment of the dower. — Union of India v K. Mohammed
Hussain, 1966(1) Mys. L.J. 279.

4. Muhammadan Law — Hiba-bil-iwaz — Gift for consideration is no gift but sale —


Transfer of property by Muhammadan husband to his wife in settlement of her claim of
mahr or dower debt is sale and not hiba or gift — If property so transferred is
immovable property of value of one hundred rupees or upwards, title to property can
be conveyed only by registered instrument, and not by mere oral agreement followed
by delivery of possession — Where Muhammadan wife was put in possession of
immovable property by her husband in settlement of his dower debt, and transfer was
not effected by registered instrument, but only by oral agreement, there is no
conveyance of title in favour of wife, and consequently sale effected by wife
subsequently to third party is invalid. Held: A gift given in lieu of mahr, if not
registered within the meaning of Section 17 of the Registration Act, such a gift is
invalid in the eye of law. — Smt. Marembi and Others v Umar sab and Another, 1998(4)
Kar. L.J. 643.

5. Oral sale of immovable properties over Rs. 100/- in value is of no effect and cannot
be specifically enforced. — Mallangowda and Others v Gavisiddangowda, 1959 Mys. L.J.
261 : ILR 1958 Mys. 746 : AIR 1959 Mys. 194.

6. The fact that under Section 54 of the Transfer of Property Act, a sale of property of
the value of less than Rs. 100 could be effected by mere delivery of possession does
not mean that when parties choose to write out an instrument of sale, such an
instrument need not be registered and the unregistered document cannot be used to
make out the character of the possession. Section 49 of the Registration Act and
Section 54 of the Transfer of Property Act prohibit such use. The vendee can prove by
independent evidence that he is in possession of the property, which formerly
belonged to somebody else, and that his possession can be traced to delivery of
possession by that other person pursuant to a transaction of sale. The benami nature
of a transaction or that the real title vests in the claimant has to be proved by evidence
a acceptable to a Court of law. Where the documents relating to the property are
inadmissible in evidence, custody of those documents by the claimant cannot have any
value. In a case where the circumstances and arguments relied upon by the claimant
are equally available to the alleged benamidar, the only safe course for the Court is to
give effect to documents relating to the property which are registered as required by
law. — K. Thimmiah v B.H. Nanjappa, 1965(1) Mys. L.J. 44.

7. RIGHT OF RECONVEYANCE Where the right to get a reconveyance was personal to


the promisee, it is a personal right and cannot be transferred. — Thippaiah v
Mallamma, ILR 1973 Mys. 738.

8. ABSENCE OF PROOF OF PAYMENT OF SALE CONSIDERATION — SALE NOT INVALID It


is well-settled principle of law that a deed of transfer of immovable property whether
by sale or mortgage which has been executed according to law and has been
registered, becomes operative to pass on the title and the property from transferor to
the transferee, namely, from the vendor to the vendee or the like, and further even if
in a deed, where, it is mentioned that consideration expressed in the conveyance has
been paid, but, as a matter of fact, it has been found that it has not been paid, does not
render the transaction to be void for want of consideration. Once the transferring of
immovable property has been done by a registered document, transaction becomes
complete and effective and the passing of title or interest is not postponed, even till
the future date of payment, until and unless there is an express covenant or term to
that effect, in the deed, agreed between the parties. If the consideration has not been
paid, then it is always open to the vendor to realise the consideration by legal means.
The deed in the present case does not show by any of its terms that the passing of
interest or title in the property had been postponed, instead, it is provided that vendor
by this deed transfers and conveys the absolute ownership of the property. So, the
deed unambiguously appears to be a sale deed. This deed does neither contain any
term in writing in it to indicate that the property transferred is a security and the
transfer of interest thereunder is suspended, nor does it provide that after the
repayment of the alleged loan, the property will stand or be reverted or be reconveyed.
No such term is contained therein. — Dr. ]acob Ijjzarus Chelly v Dokka Samuel,
1995(5) Kaj. L.J. 692A.

9. Consideration need not be solely money consideration though in an agreement, sale


price is the main consideration — If there are other considerations also by way of
reciprocal promise then a party chosing to enforce the contract cannot dissect the
same into two parts, namely, one which is favourable to him and the other which is
unfavourable/inconvenient to him — merely becasue definition of sale is restricted to
payment of prices the argument that the other consideration cannot be considered as
part of the agreement held to be not acceptable. — Indira Rai v Pamshumm Kallappa
Hande, ILR1988 Kar. 1307.
10. HOUSE PROPERTY WITH 'COMPOUND' According to dictionary meaning, compound
is an enclosed space with whatever buildings there are on it. Since it is enclosed there
is little point in speaking of a compound wall. In the instant case, the sale deed
describes the property in the schedule as house property with compound, etc.
Therefore, it is clear that the property sold is with compound which means "compound
wall". Compound by itself is used to refer to the wall. Therefore, absence of the word
"wall" after the house property with compound in the schedule cannot be made much
of. In cities sometimes all the four walls of the compound may not be owned by the
owner of the house which is enclosed with a compound. But when the property sold
under a sale deed is described as house property with compound and if one takes the
dictionary meaning of the word "compound", no further explanation is needed to
clarify that the house property and the enclosing compound wall are together sold
under the sale deed. It is not open to interpret that the walls of the compound do not
belong to the vendor. — Devikarani v Venkatesha Sastry, 1994(5) Kar. L.J. 99A.

11. Sale of immovable property — Execution and registration of sale deed — Plea that
consideration is not paid the vendee not put in actual 'possession — Remedy — Non-
payment of consideration by itself does not render the sale imperfect or invalid;
remedy to vendor is for recovery of the amounts and not for declaration of title and
possession — If actual possession not delivered to vendee, open to vendee to sue for
possession — Explained. — Sint. Therojamnia & Another v D.H. Sadashivaiah, 1990(3)
Kar. L.J. 504.

12. Future payment of consideration does not arrest passing of title if instrument
registered — Title gets conveyed as soon as instrument with stipulation of
consideration is registered — Non-delivery of possession does not affect conveyance of
title — Delivery of possession not , essential ingredient — Right to possession
incidental to right of ownership -Conveyance of title if dependent upon passing of
consideration, passing of title deferred till payment of consideration — Explained. — G.
Hampamma v K.b.Kalingapa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.

13. The plaintiff had entered into the transaction in question in order to liquidate the
loan which he had taken from the defendant-Bank. The document also discloses that
the transfer was made for a consideration which could have been best fetched. The
plaintiff in the document also admits that Rs. 3,000/-which was over and above the
debt of the Bank was received by him in cash. So far as the provision for reconveyance
is concerned it was agreed that if the plaintiff repays Rs. 13,000/- along with all the
expenses which the respondent-Bank had incurred by way of insurance charges, taxes,
repairs, etc., within 5 years, then the respondent-Bank will be obliged to reconvey the
property in his favour. The transaction in question was entered into between the
parties not in order to establish the relationship of debtor and creditor but was entered
only with the sole purpose of liquidating the existing loan. The document is in fact a
document of conveyance or sale with a condition to repurchase. — Basappa
Shivalingappa Revadigar (dead) by LRs. v Karnataka Bank Ltd., Kundgol, Dhanvad,
1994(5) Kar. L.J. 463.

14. If a sale property of less than Rs. 100 in value is effected by delivery of possession,
that sale is as provided by Section 54 of the Transfer of Property Act, a valid sale. It is
not rendered invalid by reason of the execution of an unregistered instrument of sale
recording it. — Govindappa and Another v Vishivanath alias Eshwarayya, 1961 Mys. L.J.
528 : ILR 1961 Mys. 942.

15. Title to property covered by a decree for specific performance passes only on the
execution and registration of the sale deed and not from the date of the decree or the
date of the deposit of the purchase money.In the absence of some provision in the sale
deed to the contrary, title passes with the execution and registration of the sale deed.
A sale deed which is executed by the Court in pursuance of a decree for specific
performance is a transfer by the Court on behalf of the judgment-debtor and the sale
deed so executed has got all the characteristics of a transfer inter vivos. — Mrs.
Christine Pais v K. Ugappa Shetty, 1965(2) Mys. L.J. 692.

16. Municipal Property Register is not title deed. Land Revenue Patta is not. — Hazarat
Asmruddin Durga v Hussein Ktian Saheb, 1966(1) Mys. L.J. 772.

17. Where the defendant purported to sell certain sites and convey title therein to the
plaintiffs and it was not disclosed in the sale deeds that the Sy. No. in which the sites
were situate had vested in the Government under Section 3 of the Inams Abolition Act
and that the only right the vendor had in those sites was to apply for being registered
as occupant thereof and that he was transferring only such right to the plaintiffs. Held,
there was a breach of the duty on the part of the vendor under Section 55(l)(a) of the
Transfer of Property Act and the plaintiffs were entitled to avoid the sale and claim
refund of the price paid by them. — Hanumappa v Munithimmiah, 1974(1) Kar. L.J. Sh.
N. 298.

18. In a suit for damages for breach of the implied warranty under Section 55(2) of the
Transfer of Property Act, the non-production of the sale deed is immaterial, where no
contract to the contrary is pleaded. Even if the vendee knew the defect in the title of
the vendor, still he can avail himself of the statutory warranty. In such a suit, the
cause of action arises on the date of dispossession and not on the date of the sale
deed. — Basappa v Kodliah, 1958 Mys. L.J. 491: AIR 1959 Mys. 46 : ILR1958 Mys. 237.

19. Contract of sale — Vendee's revocation of — Vendor's defective title as ground for
— Such ground is available to vendee to revoke contract even if he had prior
knowledge of defective title — Even where contract of sale is completed, vendee is
entitled to cancel contract and seek refund of purchase money, as statutory provision
deems implied contract for title — Where contract is only at executory stage, vendee
cannot be compelled to purchase, on ground that he was aware of defective title at
time of entering into contract of sale. The provisions of Section 55(2) of the Transfer of
Property Act deem implied contract for title and even in cases where there is a
completed contract of sale, the purchaser is entitled to cancel the contract and seek
the refund of purchase money. .... It is also open to the parties to waive the implied
warrantee of title by a contract to the contrary. However, in a contract where it is only
at an executory stage, it would not be proper in law to force upon the purchaser to
purchase the property on the ground that he was aware of the defective or imperfect
title at the time of agreement of sale. It does not prevent in law for the purchaser to
revise his opinion before the contract is concluded however with a qualified liability on
the purchaser to compensate any loss or damages which the vendor has sustained in
the course of such transaction for which the purchaser has equally contributed by his
folly. — R.L Pinto and Another v F.F. Menzes and Another, 2001(3) Kar. L.J. 571C (DB).

20. Section 55(4)(a) has no application to a case where in respect of the transfer of
property the prospective buyer is put in possession of the property. Such a case is
governed by the equitable principle on the basis of an implied agreement arising out of
taking over possession without paying the consideration amount. Where immediately
after agreement the prospective buyer is put in possession, the vendor is entitled to
interest on the unpaid purchase money. The circumstance that the vendor could not
remove the doubts over his title cannot be such a conduct on his part, which suffices to
relive the purchaser from the liability to pay interest wholly or in part. — Malkajappa
Bhimappa Bennur v Bhimappa Kashappa Parasannavar, 1965(2) Mys. L.J. 229.

21. Section 55(4)(a) is based upon an established rule of law that it is the part of the
right of the owner of the property to receive rent and profits of the property owned
and that right continues until the title or ownership is lost. As the agreement of sale
does not confer any title or transfer any title in the suit schedule property agreed to be
sold, and the title continues to vest with the owner/vendor of the property agreed to
be sold, evenafter the agreement of sale, it is governed by Section 55(4}(a) of the T.P.
Act. — B.R. Midani v Dr. A.B. Asivathanarayana and Others, 1992(3) Kar. L.J. 207B
(DB) : ILR 1992 Kar. 2224 (DB).

22. Mere agreement of sale does not have the effect of creating or vesting title in the
plaintiff of the suit property. As per Section 55(4)(a) of the Transfer of Property Act,
the seller is entitled to the rent and profits of the property till the ownership thereof
passes to the buyer. — G.M. Chinnaswamy v Smt. P.K. Prqfulla, 1992(3) Kar. LJ/186B
(DB) : ILR 1992 Kar. 2294 (DB).

CASE LAW ON GIFT OF IMMOVEABLE PROPERTIES

ACCEPTANCE OF GIFT BY DONEE — INFERENCE.

There is nothing in Section 122 of the Transfer of Property Act to show that acceptance
of a gift should be express. Where the donee knew about the gift, being present at the
time of registration of the gift deed and did not object to it, it can safely be inferred
that the donee accepted the gift. — Lingaiah v Siddamma and Others, 1982(1) Kar. L.J.
34.

CONDITIONS IN GIFT DEED

If donor has voluntarily executed the deed and donee has accepted during his lifetime,
any condition imposed on donee for full and proper enjoyment of property gifted
becomes void while validity of gift deed remains intact — not control passing of title in
favour of donee — D. Venkatesha Cowda v State of Kamataka and Others, 1990(1) Kar.
L.J. 242.

Recital as to maintenance in gift deed in absence of specific recital reserving rights to


revocation on failure to perform condition mentioned in gift deed — Held, cannot have
the effect of making the gift a conditional gift enabling donor to revoke the same on
failure to perform such condition. — Narayanamma and Another v Papanna, 1988(1)
Kar. L.J. 80 : ILR 1987 Kar. 3892.

Recital as to maintenance in a gift deed in the absence of specific recital reserving


right to revocation on failure to perform condition mentioned therein — Held, not a
conditional gift deed — Only remedy available to the donor is to enforce the condition
in a Court of law — Donor cannot unilaterally cancel the gift deed. — Narayanamma
and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

The super adding of a condition to a gift is permissible in law under Section 31 of the
Act and acceptance of a gift by the donee is necessary for rendering the gift valid in
law, therefore, when a donee accepts a gift which is burdened by a condition that a
superadded, it is nothing but a donee agreeing to that condition and therefore, the
consequences provided in Section 126 of the Transfer of Property Act will have to
follow — Defeasance clause would not always affect the rule of perpetuity — It
depends on facts and circumstances of each case. — Govindamma v Secretary,
Municipal first Grade College, ILR 1986 Kar. 1175.

GIFT — DELIVERY OF POSSESSION.


Under the Transfer of Property Act, it is not necessary that possession of the property
gifted must be delivered forthwith. Thus, where under a document the right, title and
interest in the properties were vested in the donee, he becomes absolute owner,
though delivery of possession is postponed, and hence the document is not a will. —
Parvati and Another v Mrutyunjaya Gurupadayya and Another, 1983(1) Kar. L.J. 14.

REGISTERED GIFT DEED — DENIAL OF EXECUTION

Registered gift deed — Denial of execution of, by person by whom it purports to have
been executed — Burden of proof of execution is on party relying upon deed and
burden has to be discharged by calling at least one of attesting witnesses to prove
execution — Where burden has not been discharged, deed cannot be used as evidence
of gift. Held: Section 123 of the Transfer of Property Act, requires the specific mode in
the matter of execution of gift of immoveable property. That gift of immoveable
property can be made only by the execution of the registered deed attested by two
witnesses. .... The law prescribes the specific mode that it must be effected by a
registered instrument or deed signed by or on behalf of the donor and attested by at
least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the
production of at least one of the attesting witness to prove its execution. Compliance
with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make
gift deed admissible in evidence. .... None of the attesting witnesses of the deed has
been examined in this case to prove the execution thereof. The deed dated 29-11-1960
could not be used as evidence and its execution cannot be said to have been proved. —
Smt. Flora Margaret v A. Larwence, 2000(6) Kar. LJ. 27B.

MODE OF TRANSFER

Gift — Transfer of property under — Mode of transfer — Gift deed may provide for
transfer of existing property to donee at future date and/or on happening of certain
events — Intention of donor to be gathered by reading deed as a whole — No word
thereof to be ignored as meaningless — Effect to be given to every part of deed —
Where gift deed in favour of two minor donees jointly concludes with words "you shall
enjoy property and live as you wish after you have attained majority and got married",
the words to be interpreted that gift would take effect oniy when donees marry on
attaining majority — Property not conveyed to donees as marriage between them did
not take place. Held: A reading of Section 123 along with Sections 122 and 5 of the Act,
it appears to me that in the matter of gift also, transfer or conveyance of the property
may be provided to take place in present or in future. The gift deed may also provide
that the transfer may be effective on the happening of certain conditions in future. In
other words, person making the gift may provide that the interest in gifted property
will stand conveyed or transferred as per deed either in present or in future. In the
deed, it has to be looked into to ascertain the intention of the parties, whether the
transfer has been effected in present or in future, Expression lastly used in the
document, "you shall enjoy the above mentioned property and live, as you wish after
you attained majority and got married". These expressions have to be taken as
controlled by the expression used earlier that the intention of the author is that the
right and title as an absolute owner of the property should pass on to the donees on
the fulfilment of those conditions. That as the document appears to have been
executed with the object of the marriage and the effect of it is that donees could get
absolute ownership under the deed on the fulfilment, of both the conditions, namely,
attaining the age of majority by both of them and they getting married and until and
unless this had so happened, the property had to remain in possession of the husband
of the donor. This action shows that till the happening of the condition, namely, the
attaining the age of majority by the two donees and their getting married, the property
had to remain in possession of the husband of the donor, so, the property had not been
transferred to the donees, the transfer could take effect only on the donees attaining
majority and getting married. That as the marriage did not takes place in the present
case and the plaintiff did not marry the defendant's daughter, deed did not become
effective to transfer the title of the property to the plaintiff and defendant 1 and the
title of the property re-examined with the donor. Mere execution of the deed of
cancellation at subsequent stage will not lead to the conclusion that the gift deed had
been acted upon. The deed cancelling the gift deed might have been executed as a
matter of mere precaution and for safety protection. — Hutchegowda v Smt. Jayamma
and Another, 1996(2) Kar, L.J. 751.

ATTESTATION OF GIFT DEED

In the present case, the gift deed in question has been registered and the necessary
endorsements are made by the Sub-Registrar. P.W. 2 has sworn that he had attested
the deed. But he has nowhere stated in his evidence that the executrix namely,
Gangavva affixed her signature or mark to the gift deed in his presence or
acknowledged to him, that she had affixed her signature or mark to the gift deed.
Therefore, his evidence does not satisfy the ingredients of definition 'attested'. Hence,
it will have to be held that attestation by P.W. 2 and another person as required by
law, has not been proved. Therefore, though Gangavva appears to have admitted
execution of the gift deed as is seen from the endorsement of the Sub-Registrar, it will
have to be held that the gift deed, though registered, does not satisfy the ingredients
of Section 123 main part. When that is so, no title in law can be said to have passed
from Gangavva to the plaintiffs, even assuming that Gangavva did have such title to
transfer. — Anant Somappa Pattar v Kalappa Devendrappa Yarakad, 1987(2) Kar. L.J.
Sh. N. 177: ILR 1985 Kar. 1432.

Gift - proof of attestation. Where the attestor called as witness says he does not know
who else attested and there is no other evidence, held, the gift deed was not proved as
required by law. — Kempamma v Honnamma, 1979(1) Kar. LJ. Sh. N. 85.

You might also like