TaxTMI 
TaxTMI 
2007 (5) TMI 657
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....gistered lease deed dated 30.9.1921; that the lessee put up several structures thereon and was in possession and enjoyment thereof as absolute owners; that G. Anraj Sankla, proprietor of Giridharilal & Son was declared as insolvent in Insolvency Case No. 7 and 12 of 1940 on the file of the District Judge, Civil & Military Station, Bangalore and the Official Receiver took charge of the insolvent's properties including the said land with buildings (for short 'suit property'); that the Official Receiver put up the suit property for sale by auction; that M. Bhowrilal, father of plaintiff was the highest bidder and the sale of the right, title and interest of Anraj Sankla that is, his leasehold rights, in regard to the suit property in favour of M. Bhowrilal was confirmed on 25.8.1941 and Sale Certificate was issued to him on 29.8.1941 which was duly registered. After the death of his father on 21.7.1969, he came into possession and enjoyment of the suit property. According to the appellant though the lease was one in perpetuity, it was an absolute grant and since no premium or rent was fixed, the enjoyment was to be perpetual and absolute. When matters stood thus, the Comma....
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....n not to seek possession of the suit property? (4) Whether the Defendants prove that the suit is barred by time? (5) Whether the Defendants prove that suit is not maintainable for the reasons stated in para 12 of the Written Statement. (6) Whether the defendants prove that suit is bad for non- joinder of necessary parties? (7) Whether the defendants prove that court fee paid is insufficient? (8) What relief the parties are entitled to. Plaintiff examined himself as PW1 and got exhibited Ex.P1 to Ex.P43. The Defendants also examined one witness. After appreciating the oral and documentary evidence, the trial court decreed the suit in part. It answered the first issue against the plaintiff by holding that plaintiff had not acquired ownership. It held issues (2) to (6) against the defendants. It held that issue No. (7) did not survive for consideration. As a consequence, it rejected the prayer for declaration of title and granted the relief of possession to the Plaintiff and ordered a separate enquiry regarding mesne profits. 5. Feeling aggrieved, the defendants filed RFA No. 181/1996 before the High Court. The High Court by judgment ....
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....ease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promises or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, Lessee, Premium and Rent defined - The transferor is called the Lessor, the transferee is called the Lessee, the price is called the Premium, and the money, share, service or other thing to be so rendered is called the Rent. Thus the essential ingredients of a lease are : (a) There should be a transfer of a right to enjoy an immovable property; (b) Such transfer may be for a certain term or in perpetuity; (c) The transfer should be in consideration of a premium or rent; (d) The transfer should be a bilateral transaction, the transferee accepting the terms of transfer. 8. In this case the plaintiff claims that the suit land was leased in perpetuity by the General Officer Commanding, Madras District, Bangalore under Ex.P1 dated 30.9.1921. Condition II provides that the lessee can erect buildi....
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....minable at the will of the owner, and therefore, at best a tenancy at will. The absolute discretion to resume the land at any time without assigning any reason, and absence of any express grant in perpetuity and absence of any consideration, militates against the instrument being construed as a lease in perpetuity. The learned Counsel for appellant submitted that courts have taken the view that existence of a mere provision for forfeiture for non-payment of rent or other specified breach, in a deed granting permanent lease, will not make the lease non- permanent. Such line of decisions, may not assist the appellant as a provision for determination of the lease for a specified breach, is in no way comparable to reservation of an absolute right to resume at will without assigning any reason, in a lease without consideration. We, therefore, affirm the finding that Ex.P1 is not a lease in perpetuity. We, however, desist from examining the further question whether the lease itself was invalid for want of consideration, as such a contention was not raised in the written statement nor urged before the trial court or High Court. Re : Point (ii) 10. The plaintiff has produced the orig....
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....nter vivos (transfer from one living or juristic person to another living or juristic person) and Condition V deals with devolution by succession or by operation of law including auction sales confirmed by court. Only transfers in violation of Condition IV are void. No penal consequence is specified for failure to comply with Condition V. Therefore, it is not possible to hold that the auction sale of the leasehold right in favour of Bhowrilal was void for want of notice to the lessor. Re : Points (iv) and (v) 12. In this case the plaintiff approached the Civil Court with a specific case that he was the owner of the suit property and that he was illegally dispossessed by the defendants in September 1975 and sought a declaration of title as absolute owner and for delivery of possession. He also contended that as the suit was filed within 12 years from the date of dispossession, the suit was within time. The plaintiff admitted in the plaint that the suit property was leased to M/s S. Giridharilal & Son and his father purchased only the leasehold right in a court auction in 1941. Therefore, the trial court rightly found that the plaintiff did not establish ownership to the suit p....
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....6 dated 30.1.1980 and Ex.P31 dated 9.3.1981, all referring to the subject "resumption of defence land (suit property)", plaintiff requests the defendants to take immediate steps to resolve the question of compensation. These letters clearly show that the suit land was already resumed by the defendants in terms of the lease and that plaintiff was seeking only compensation and nothing more. In fact, the plaintiff specifically stated thus in Ex.P31 dated 9.3.1981: I have already expressed that I have no objection for the resumption of the land in question provided suitable compensation for the property created on the land is paid to me. Again in Ex.P34 dated 11.5.1981 and Ex.P35 dated 16.11.1981, the plaintiff, with reference to the subject of resumption of the suit land, requested that compensation be paid to him at the earliest. Alternatively, he requested that resumption may be cancelled. 16. It is thus seen from 1975, when the plaintiff alleges that he was forcibly dispossessed from the suit property, till 1981 there is no whisper in any of the letters written by the plaintiff (either personally or through counsel) about any forcible dispossession in September, 1975. On t....