Undivided Share of Co-Sharer in Property : High Court Answers and Explains the Legal Position
Undivided share of a co-sharer may be subject matter of sale but possession cannot be handed over to the vendee (purchaser) unless the property is partitioned.
Caravan Commercial Company v. Yashashwi Aggarwal [2017] GCtR 6552 (Delhi)
Supreme Court Explains the Effect of Appeal on Merits
It is held that when a higher forum entertains an appeal on merits, the doctrine of merger would apply. The doctrine of merger means that at one point in time, only one decree can subsist. If the order dismissing the objections has been set aside and the execution petition dismissed, there is no decree that could be executed, and as such, the question of extension of time would not arise.
Dr. Amit Arya v. Kamlesh Kumari [2025] GCtR 1897 (SC)
Law On Acquiring Rights in Immovable Property : Supreme Court Answers the Legal Issue
It has been held that there are various modes by which rights may be acquired in an immovable property such as sale, gift, mortgage, lease etc., which are from one living person to another. Rights may also be acquired by devolution of interest through a will or inheritance/ succession on death of the title/ interest holder. There is nothing in the M.P. Land Revenue Code, 1959 proscribing acquisition of rights under a will. Where there is no serious dispute raised by any natural legal heir, if any, of the tenure holder, in absence of any legal bar, mutation based on a will should not be denied as it would defeat the interest of Revenue.
Tarachandra v. Bhawarlal [2025] GCtR 1887 (SC)
Wills, Property, Litigations and Views of Courts
Written by Vishal
Introduction
Cases have arisen with respect to property ; cases have also arisen where there was a will in respect of property. A document [sometime a picked-up format] obtained with assurance that it protects rights is tested by Courts to see if it aligns with law ; people who draft wills [or those who collect the drafted wills] need to know how law would operate on their wills. Sections useful would be : S.63 of Indian Succession Act, 1925 (witnesses) ; S.59 of ISA, 1925 (sound mind) ; S.61 of ISA, 1925 (fraud/coercion).
In the case of Balathandayutham v. Ezhilarasan [2010] GCtR 6525 (SC) it was held that when a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. In this case, plaintiff questioned the subsequent will but suit was dismissed ; appeal was allowed and suit was decreed ; HC also agreed with view of first appeal and Supreme Court had also agreed with view of HC.
H. Venkatachala Iyengar v. B.N. Thimmajamma [1958] GCtR 487 (SC) has held that in a case where testator’s mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of testator’s free will and mind, the Court may consider that the Will in question is encircled by suspicious circumstances.
The case of Kavita Kanwar v. Pamela Mehta [2020] GCtR 784 (SC) is the next one ; case was around a property in Defence Colony in India's Capital Delhi. It was held that as per Section 63 of the Indian Succession Act,1925 the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Indian Evidence Act, 1872 (IEA has been repealed through BSA, 2023). Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate. The probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to the final satisfaction of the conscience of the Court.
The case of Leela Rajagopal v. Kamala Menon Cocharan [2014] GCtR 6526 (SC) was related to a will executed by mother ; in this case, even original will was not produced (as noted at page15). Both the parties engaged designated senior Advocates for their case. It was held that a Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration.
There is another interesting decision ; Ved Mitra Verma v. Dharam Deo Verma [2014] GCtR 6527 (SC). In this case, father executed will ; Litigation arose in the north-eastern part of India in Meghalaya. While appellate was represented by a non-designated Senior Advocate ; the opposite party was represented by a Designated Senior Advocate ; jurisdiction invoked in Supreme Court was the one under A.136 [and not the appeal]. Trial Court had found the will suspicious ; HC had set aside the decision of Trial Court. It was argued that will is "highly suspect". In this case, Sub Registrar had proved the execution of will ; will was registered. It was held that the exclusion of the other children of the Testator and the execution of the Will for the sole benefit of one of the sons by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the Testator that has to prevail. Some errors even if there are not treated material to invalidate a will.
Conclusion
The message of this article is to convey that a format so loftily dashed on the tables of clients or downloaded from internet and edited with insertion of certain details do not guarantee that the "will" becomes immune from scrutiny of Courts. Genuine wills exist ; a reading of the law and the judgments dealing with validity of will would be helpful in understanding the effect of the document called will.
NOTE : Unfortunately, while writing this article use of AI has not been done ; no other reference material except full text decisions were referred.
Complaints under Consumer Protection Act, 2019 in Real Estate Sector : Supreme Court Examines Finer Legal Nuances
In an interesting Judgment where consumer issues arose in real estate sector, Supreme Court has discussed the law on Consumer Protection Act, 2019.
Consumer alleged that there was delay in handing over possession by the builder. Complaint was filed jointly by 91 consumers of the real estate project.
It was found that since project was in multiple blocks so when buyers of other blocks have not joined in complaint so complaint in representative capacity for those persons was found non-maintainable. While joint complaint in this case was permitted but complaint filed in representative capacity was not permitted due to certain reasons ; however, the complaint filed in representative capacity was allowed to be continued in a complaint of joint nature.
S.35 of CPA, 2019 and Order 1 Rule 8 of Code of Civil Procedure
Section 35(1)(c) of Consumer Protection Act, 2019 enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the benefit of”. Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest.
Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant is a consumer referred to in Section 2(5)(v), which defines a ‘complainant’ to mean one or more consumers, where there are numerous consumers having the same interest.
"Sameness of Interest" and Its Impact
Since “sameness of interest” is the prerequisite for an application under Order I Rule 8 read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the respondents to include in the consumer complaint, sufficient averments that would show sameness of interest.
Applying the law to this case it was held that in this case, it is not clear from the consumer complaint as to how (i) those who have accepted the compensation under protest; (ii) those who accepted without protest; and (iii) those who refused to accept the compensation, have the sameness of interest. It was also held that for allowing an application under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be considered.
There is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 of Code of Civil Procedure, 1908 even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter. There may be cases where only “a few consumers” and not “numerous consumers” have the same interest. There is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint. A joint complaint stands in contrast to a complaint filed in a representative capacity. For attracting the provisions of Section 35(1)(c) of Consumer Protection Act, 2019 the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having same interest. It does not mean that where there are only very few consumers having the same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints.
The proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer; (ii) by a recognised consumer Association; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority.
Case reference is Brigade Enterprises Ltd v. Anil Kumar Virmani [2021] GCtR 2900 (SC).
Property, Flats and The Impact of RERA After 2016
In case of Neelkamal Realtors Suburban Pvt Ltd v. Union of India [2017] GCtR 6261 (Bombay) the law related to properties was explained. It was held that the promoter is liable to pay interest on account of suspension or revocation of the registration under the Real Estate (Regulation and Development) Act, 2016 or for any other reason. it cannot be said that Section 18(1)(b) is violative of Articles 14 and 19(1)(b) of the Constitution of India. It also cannot be said to be a penal provision. Section 18 of Real Estate (Regulation and Development) Act, 2016 is compensatory in nature and not penal. It is not unreasonable to require the promoter to pay interest to the allottees whose money it is when the project is delayed beyond the contractual agreed period.
Property, Loan, Creation of Valid Mortgage : How Law Impacts the Transactions
In an interesting case, the law related to mortgage was discussed.
In Allahabad Bank v. Ley Bros [2010] GCtR 6260 (Kerala), it was held that "for the creation of an equitable mortgage, three conditions are required, i.e., (1) There should be a deed, (2) Deposit of title deeds and (3) An intention that the deed should be a security for the debt. It is not necessary that the mortgage should be created by a registered document. The very act of deposit of title deeds with the intention to provide the property as a security is sufficient to constitute equitable mortgage."
It is not necessary that the equitable mortgage by deposit of title deeds is created only by a registered deed. Going by S.58 (f) of the Transfer of Property Act, 1882 the very act of deposit of title deeds with the intention to furnish security for a debt is sufficient to create a mortgage.
It was also held that an equitable mortgage is created by deposit of title deeds and if that be so, they are mandatorily registrable.
No doubt, an agreement to create a mortgage is not compulsorily registrable, but if by the document, a mortgage is created, then, registration is mandatory.
Property Sale, Housing Loans and The Fundamentals of Law
It has been explained in Union Bank of India v. Rajasthan RERA [2021] GCtR 3445 (Jaipur, Rajasthan) that in the event of direct conflict between the two central statutes giving overriding effect to the Act, ordinarily the subsequent legislation would prevail. As per S.11 of R E(R&D) Act, 2016 after a promoter executes an agreement for sale for any apartment, plot or building he shall not mortgage or create a charge on such apartment, plot or building and if any such mortgage or charge is made or created then notwithstanding anything contained in any other law for the time being in force, it shall not affect the right and interest of the allottee who has taken or agreed to take apartment, plot or building, as the case may be. RERA authority has the jurisdiction to entertain a complaint by an aggrieved person against the bank as a secured creditor if the bank takes recourse to any of the provisions contained in S. 13(4) of the SARFAESI Act, 2002.
Sale of Properties and Legal Principles
In case of Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Ltd [2015] GCtR 6259 (SC), the legal issues related to property acquired by Housing Board was explained. "Constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have. Even if they have no actual knowledge of it. Constructive notice means a man ought to have known a fact." It was explained that sale in favour of a person not belonging to Scheduled Caste is void as per the mandate of section 42 of the Rajasthan Tenancy Act, 1955.
Immovable Property and Taxation : Important Decisions
Here are some important decisions that deal with issue of service tax for renting of immovable properties under Indian taxation regime before CGST Act, 2017 came into force.
1. M/s Shubh Timb Steels Limited v UOI [2010] GCtR 5961 (P&H) : "It cannot be held that renting of property did not involve any service as service could only be in relation to property and not by renting of property. Renting of property for commercial purposes is certainly a service and has value for the service receiver."
2. HOME SOLUTIONS RETAILS LTD. v UOI [2011] GCtR 5962 (Delhi) : In this case, Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 1994 as amended by the Finance Act, 2007, Finance Act 2008 and Finance Act, 2010 were sought to be declared as ultra vires the Constitution of India as there is colourable exercise of power inasmuch as the Legislature does not have the legislative competence in this field as it basically pertains to List II of the Seventh Schedule of the Constitution of India. The petition was dismissed.
3. Retailers Association of India (RAI) v UOI [2011] GCtR 5963 (Bombay): "The notes on clauses when the Finance Bill of 2007 was introduced in Parliament would indicate that the intent of Parliament was specifically to bring the renting of immovable property within the fold of taxable services when used in course or furtherance of business or commerce."
4. N.K. Bhasin v Union of India [2017] GCtR 5964 (Lucknow, Allahabad) : Court has negatived the arguments that service tax on service of renting of property is exclusively covered by Entry 49 List II of Constitution of India and therefore, argument of lack of legislative competence has also been negatived.
Purchase of Property and Legal Implications : Supreme Court Unfurls Crucial Legal Aspects
In a recent decision, Hon'ble Supreme Court has explained some important aspects of purchase of property as well as on execution of decrees.
In Bhikchand v. Shamabai Dhanaraj Gugale [2024] GCtR 1350 (SC) it was reiterated that "if at a court auction sale in execution of a decree, the properties are purchased by a bona fide purchaser who is a stranger to the court proceedings, the sale in his favour is protected and he cannot be asked to restitute the property to the judgment debtor if the decree is set aside. The policy which prompts the extension of protection to the strangers who purchase at court auctions is based on a need to ensure that proper price is fetched at a court auction. The special protection afforded to a stranger who purchases at an execution sale is not extended to an assignee of the decree-holder auction purchaser. Persons who purchase at a court auction who are strangers to the decree are afforded protection by the court because they are not in any way connected with the decree. The reasons which prompt the courts to protect strangers who purchase at court auction sales also do not apply to assignees or purchasers from a decree-holder auction purchaser."
It was also explained that "the execution of a decree by sale of the entire immovable property of the judgment debtor is not to penalise him but the same is provided to grant relief to the decree holder and to confer him the fruits of litigation."
You can download this judgment full text free of cost from www.sci.gov.in.
Written by
Vishal
Delhi
Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.
Consumer Rights and Cases
Introduction
Ronald Dworkin in his book "Taking Rights Seriously" wrote that "individual rights are political trumps held by individuals." [Harvard University Press, 1977]
The article is a narration of how consumers have been able to assert their rights through laws.
Here is a short presentation of some useful points while dealing with cases under Consumer Protection Act.
In Puneet Singla v United Ltd [2019] GCtR 2833 (NCDRC) the case against property seller was allowed.
In Paramount Villas v Rohit Srivastava [2019] GCtR 4426 (NCDRC) the appeal against Order of SCDRC was allowed and direction was issued to SCDRC for time bound disposal.
In ARCIL v Mohammed Yagup [2019] GCtR 4427 (NCDRC), the Order of SCDRC was found correct and the petition challenging the Order of SCDRC was rejected pointing out the scope of interference and its extent.
In Cholamandalam MS General Insurance Co. Ltd v Rohtash Saini [2019] GCtR 4428 (NCDRC), insurer thought of challenging the Order of SCDRC. The challenge made by insurer was rejected and it was explained when terms and conditions of insurance policy do not stand violated.
Post Offices cannot claim themselves above law ; nor employees of Post Offices can believe so. In Post Office, HPO v Rasendubhai Shantilal Parekh [2019] GCtR 4429 (NCDRC), the Order passed against Post Office was upheld and the manner of conducting its activities by employees of Post Office also got exposed.
Frivolous appeals need to be dismissed with sufficient imposition of costs. In Dr. Swaroop Gopal v Goli Venkateshwar Rao [2019] GCtR 4430 (NCDRC), the appeal was dismissed and costs was also imposed. It was held that "object of the Consumer Protection Act is to dispose of the matter summarily."
Prolonging a case is an old ploy. In K.P. Asewal v Dwarika Project Ltd [2019] GCtR 4431 (NCDRC) this ploy was nipped in the bud. It was held that "when a case is called for hearing and the party is repeatedly not present, the court is under no obligation to keep the matter pending indefinitely.Consumer Courts should not waste time in hearing matters pending endlessly, which otherwise can be put to proper use in other cases that are genuine and require speedy disposal. The very purpose of constituting Consumer Courts gets defeated, if parties are encouraged to prolong litigation."
SBI is a public sector bank whose employees thrive on public money being spent on luxurious facilities for SBI's employees; but whether customer service is its goal ? One can do some fact-check by going through State Bank of India v Sushma Goyal [2019] GCtR 4432 (NCDRC) where an innocent Indian customer was forced to opt for litigation due to actions of SBI. It was held that "in Revision Petition it is not permitted to reappreciate or reconsider the evidences and reach to a different conclusion."
It is a matter of common knowledge that if an insurance claim is paid then it affects the personal financial benefits of some employees of insurance company. So, many specific employees of United India Insurance Company know that if they pay a genuine insurance claim, then some employees who are supposed to bring premium but unable to bring premium or too lazy to bring premium then those employees of United India Insurance Company may not get personal financial benefits for themselves. In Sona Agencies v Canara Bank [2019] GCtR 4433 (NCDRC), the so called public services by a loss making government general insurance company got exposed. In that case, a genuine insurance claim was repudiated by some employees of this loss making insurance company. This forced the customer to go to long drawn process of litigation. It was held that "act of the Insurance Company in issuing the policy at the office address and not inspecting the location even once, prior to the issuance of the policy, and also repeatedly renewing them at the very same office address, amounts to deficiency in service and is also contrary to the regulations laid down by the IRDA, specially in the light of the fact that the policies were meant to cover the risk of stocks which are obviously kept at the godowns and not at the office premises." Due to wrong actions of some employees of this insurance company in this case, customer has to take trouble of litigation and huge financial loss of public money also occurred because if that claim was not repudiated by those employees of this government general insurance Company, then the interest liability could have been avoided.
Conclusion
While there is still a long way to go for real consumer rights in India, yet some distance has been travelled. A journey starts when we begin.
For real estate companies and airlines company , the rare use of S.72 of Consumer Protection Act, 2019 by consumer fora across India serves as a blessings for cash-rich real estate companies and becomes a curse for innocent Indian customers.
Hope something positive emerges.
Written by
Vishal
Delhi
Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.
Supreme Court Explains Law on Unregistered documents
Hon'ble Supreme Court has given numerous judgments.
In K.B. Saha & Sons Pvt Ltd v Development Consultant Ltd [2008] GCtR 4223 (SC) it has been held thus : -
"1. A document required to be registered, if unregistered is not admissible into evidence under S.49 of Registration Act
2.Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to S.49 of Registration Act, 1908.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in Immovable property of the value of one hundred rupees and upwards.5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
Written by
Vishal
Delhi
Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.
Scope of Section 9 of Arbitration and Conciliation Act, 1996 Answered in a recent Judgment passed in July 2026 S.9 of Arbitration and Concil...