CAN A COPARCENER/CO-OWNER SELL HIS/HER SHARE IN A JOINTLY OWNED PROPERTY TO A THIRD PARTY? RIGHT OF PREEMPTION AGRICULTURE LAND VS RESIDENTIAL PROPERTY
Let us first see the provisions of the Transfer of Property Act 1882 and the Hindu Succession Act 1956. Section 22 of The Hindu Succession Act 1956 Section 22 of the Act is as under:- “22. Preferential right to acquire property in certain cases – (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.” OBITER Smt. Laxmi Debi v. Surendra Kumar Panda and Others by the High Court of Orissa. In this case the submission that Section 22 of the Act would not cover succession in respect of agricultural lands was rejected.It was observed and held that “It is clear that the Parliament had omitted the phrase “save as regards agricultural land” from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 FC 72 (K) would no longer hold good.” The High Court of Judicature at Allahabad, in Smt. Prema Devi vs. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp and Ors. held:- In List 2, Entry No. 18 is as follows:– “Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures […]
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WHAT IS THE PRINCIPLE OF OWELTY ? WHEN DO THE COURTS APPLY IT IN THE CASE OF CO-OWNED PROPERTY?
When is a property jointly owned and cannot be partitioned by metes and bounds what remedy is available to parties? In the case of a property that is jointly held by the family, or which may be inherited by the family which consists of more than one sibling of the deceased how to partition the property? One alternative is division by metes and bounds. This can be done by parties under a registered agreement by executing a Deed of Partition or if there is more than one property then it can be done by executing a Deed of Family Arrangement and followed by executing a Deed of Conveyance or the document which is needed in the matter applicable to the facts and circumstances of the case. It could be of the nature of a Deed of Release, Deed of Relinquishment, Deed of Gift, or Deed of Exchange as the case may be. The same should be done by way of a registered deed. Now when in the following events : for example, a bungalow is jointly owned by the respective families of four brothers who passed away. The legal heirs of three brothers want to sell their undivided share in the property. But one branch of the deceased brother is objecting to the sale; another example, a bungalow cannot be divided or partitioned by metes and bounds because the legal heirs are more, and the area is less; the objecting party does not reside in the said inherited property; In such a case land is locked so even the generation of income from the same. What to do in such a case? In such cases, courts apply the principle of Owelty: what it is? OWELTY : In regard to partitions, the ground upon which the jurisdiction of courts of equity, was maintainable as it constituted a part of its appropriate and peculiar remedial justice. It is, that courts of equity were not restrained, as, courts of law were, to a mere, partition or allotment of the lands and ‘other real estate between the parties according to their respective interests in the same, and having regard to the true value thereof; but courts of equity might, with a view to the more-, convenient and perfect, partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or, equality of partition, so as to prevent an injustice or avoidable inequality.” ‘Lawrence -on Equity Jurisprudenoe (1929), Vol. I pp. 1227, 1228, s. 1147, also contains the following passage:- , The ordinary method of partition is to decree a physical severance of the separate interests, no sale being authorised unless a fair, partition is otherwise impossible, or at least prejudicial. There was no power of judicial sale at common law. The Court ordering physical partition may make its decree effective by compelling mutual conveyances by the parties of their respective interests. Owelty of partition may be awarded to equalize the shares of the parties and may be decreed to be a lien on the excessive allotment. Though only when necessary to a fair partition, and it should be […]
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CONFLICT OF LAWS: CAN ARBITRATION OVERRULE RERA?
This is an important issue especially when the same tribunal namely MahaRERA has passed two controversial Orders on this issue. Let us see what is the provision of the Arbitration Act and what is an Arbitration proceeding. Arbitration Act : Power to refer parties to arbitration where there is an arbitration agreement.— (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to the arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Jurisdiction of RERA Now let us see provisions of The Real Estate (Regulation and Development) Act, 2016.( RERA) Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Act to have overriding effect.—The provisions of this Act shall have an effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Judicial pronouncements: Booz-Allen & Hamilton Inc vs Sbi Home Finance Ltd. & Ors on 15 April 2011 Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings is reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is arbitrable, the court where a suit is pending will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well-recognized examples of non-arbitrable disputes are (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offenses; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. It may be noticed that the […]
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DOES THE INVESTOR HAVE A REMEDY AGAINST ERRING BUILDERS UNDER REAL ESTATE AND REGULATION ACT ,2016 ( RERA) ?
To answer this query let us understand the provisions of RERA,2016 2(d) “allottee” in relation to a real estate project means the person to whom a plot, apartment or building, as ,he case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. FILING OF COMPLAINTS WITH THE AUTHORITY OR THE ADJUDICATING OFFICER (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the Rules and Regulations made thereunder against any promoter allottee or real estate agent as the case may be. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. (2) The form, manner, and fees for filing a complaint under sub-section (1) shall be such as may be specified by regulations. The first of such complaint was filed before Maharashtra RERA authority in COMPLAINT NO: CC006000000000789 Mahesh Parian vs Monarch Solitaire Facts: The Complainant has invested some amount in the residential Project known as ‘monarch Solitaire’ and reserved four apartments in the said Project in 2014. The said project is registered under MahaRERA registration No. P51700012008. The Complainant stated that after reservation of four apartments, Respondent neither gave his invested money back with interest nor is giving the possession of the apartments earmarked for him. Therefore, he prayed that MahaRERA pass an appropriate order for recovery of the principal amount with interest. Observation: documents entered into between parties Tribunal observed that the Complainant and Respondent have signed a ‘Memorandum of Understanding’ on 12s March 2014 from which it is seen that the Complainant is an investor in the said Project and not an allottee. The ‘Memorandum of Understanding’ mentions that when the complainant sells his apartments in the market then the profit from such a sale will be shared between the complainant and respondent in the ratio of 70:3O”. It means that the Complainant has the status of a ‘Co-promoter’ of the Project, as clarified in MahaRERA circular. NOTE: As per records of Maha-RERA this matter was subsequently withdrawn before Appellate Authority. Can draw a hypothesis that it was settled. Next came was M/s. Srushti Sangam Developers Pvt. Ltd vs Sarvapriya Leasing (P) Ltd. APPEAL NO. 000600000001 0557 Facts: The Promoter was developing a project namely Maulick Enclave at Chembur, Mumbai. lt is a redevelopment project consisting of residential premises and shops and offices. promoter and owner of the land had executed registered agreements of redevelopment in the year 2003. As the project was incomplete on 11 May 2017 i.e. on the day of application of RERA Act 2016. promoter has registered a project with [MahaRERA and it bears registration No. P518000J2986.] The investor cum allottee had paid a total sum of Rs.4,53,71,1001 […]
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MODEL TENANCY ACT AND ABSENCE OF DEFINITION OF “LEAVE AND LICENSE” DIFFERENCE BETWEEN LICENSE AND TENANCY HOW TO DETERMINE?
Model Tenancy Act 2020 does not contain definition of Leave and License, why? This question crops up in layman’s mind. The definition of Leave and License is found in Section 52 of Indian Easement Act,1882. It defines term License as under: “License” defined. -Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. Maharashtra Rent Control Act,2000 defines term Licensee as under 7 (5) “Licensee”, in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licenser, or a person conducting a running business belonging to the licenser or a person having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital, or sanitarium or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanitarium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of exigencies of service or provisions of residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increase for such premises, and any additional sum for service supplied with such premises or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions “licence”, “licenser” and “premises given on licence” shall be construed accordingly; Delhi Rent Control Act,1995 defines term is Section 2(n) (ii) any person to whom a licence as defined in section 52 of the Indian Easements Act, 1882 (5 of 1882 .) has been granted; I did not find more such provision in different states rent laws except this two. Under the English law the terms “tenant”, “licence” and “licensee” are not defined and so in every case where the English Courts are called upon to consider whether the relationship between the parties before them is that of landlord and tenant or licensor and licensee, they have always to decide […]
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