The references: Dr. Bijan K. Mukherjee on Hindu Law of Religious and Charitable Trust (Tagore Law Lectures, 3rd. ed., 1970); Mulla’s Hindu Law (14th ed.); Ganapati Aiyer’s Hindu Religious Endowment (2nd ed.); Saraswathi Ammal and Another Vs. Rajagopal Ammal, , Saraswathi Ammal and Another Vs. Rajagopal Ammal, , Raj Kali Kuer Vs. Ram Rattan Pandey, Deoki Nandan Vs. Murlidhar, , M.D. Reddi v. D. Subba Rao AIR 1957 S.C. 797 , Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, , Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, , Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , The Poohari Fakir Sadavarthy of Bondilipuram Vs. The Commissioner, Hindu Religious and Charitable Endowments, , Mahant Shri Srinivasa Ramanuj Das Vs. Surajnarayan Dass and Another, , Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, , Seshammal and Others, Vs. State of Tamil Nadu, , Lakshmana, Pujari v.S. Ayyar (1923) 29 C.W.N. 112 (P.C.), (1889) L.R. 16 I.A. 137 (Privy Council) , 12 CWN 946 (Privy Council) , Srinivasa v. Evalappa L.R. 49 I.A. 237, Mundancheri Koman v. Achuthan Nair L.R.61 I.A. 405, (1939) 9 AWR 188 (Privy Council) , AIR 1938 195 (Privy Council) , Prakash Chandra Nag Vs. Subodh Chandra Nag and Others, , Haji Mahammad Nabi Shirazi and Others Vs. Province of Bengal and Others, , Commissioner of Income Tax Vs. Jogendra Nath Naskar and Another, and S. Kannan v. All-India Sai Samaj (1974) 1 M.I.J. 174. Continue reading
In order to establish the claim of pre-emption the petitioner pre-emptor has to establish the basic ingredients of Section 8 of the Act of 1955. In a case of pre-emption under Section 8 of the Act of 1955 a pre-emptor has to establish that a portion or a share of a plot of land of a raiyat was transferred to a stranger purchaser, that the petitioner pre-emptor was a bargadar, or a co-sharer or an adjacent land owner of the plot of land from which said transfer was made and that he filed said application within the prescribed time. The opposite party who is resisting said claim of pre-emption also knows what are the points in issue in an application for pre-emption under Section 8 of the Act of 1955. As such, the absence of those specific averments in the application did not prejudice the O. P. pre-emptee in taking his defence in the case. There was also no specific averment in the written objection of the pre-emptee that his vendor transferred his entire share in the suit tank. Under these circumstances there was no bar to adduce evidence by the parties in support of their respective claims on the point in issue.
In the case of Paschimbanga Bhumijibi Krishak Samity and others and subsequent decisions followed as referred by Mr. Roy it was held that ‘bastu’ land or land having dwelling house should not come within the purview of pre-emption under Section 8 of the Act of 1955. But admittedly, the suit property was a tank. In terms of West Bengal Land Reforms (Amendment Act) of 1981 land means land of several descriptions and includes tank, tank fishery etc. as defined in Section 2 (7) of the Act of 1955 with effect from 7th of August, 1969. As such, tank or tank fishery after said amendment has been brought within the fold of land as defined in the Act of 1955. After said amendment of the definition of land in the Act of 1955 whenever any portion or share of a plot of land of a raiyat whether agriculture or otherwise is transferred to a stranger purchaser, Section 8 may be attracted. Tank or tank fishery cannot be equated with ‘bastu’ land. As such, those case laws have no application in the facts of this case. [Calcutta High Court (Appellete Side) Basanti Mondal & Ors vs Srikanta Mondal Decided on 26 September, 2013 in C. O. No. 1110 of 2012 ]
S. 8 Right of purchase by co-sharer or contiguous tenant.—
(1) If a portion or share of a [plot of land of a raiyat] is transferred to any person other than a [co-sharer of a raiyatin the plot of land], [the bargadarin the plot of land] may, within three months of the date of such transfer, or] any [co-sharer of a raiyat in the plot of land] may, within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land [adjoining such plot of land]may, within four months of the date of such transfer, appiy to the [Munsif having territorial jurisdiction,] for transfer of the said portion or [share of the plot of land]to him, subject to the limit mentioned in [section 14M,] on deposit of the consideration money together with a further sum of ten per cent of that amount:
[Provided that if the bargadar in the plot of land, a [co-sharer of raiyat in a plot of land] and a raiyat possessing land [adjoining such plot of land] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them:]
[Provided further that where the bargadar does not apply for such transfer and] a [co-sharer of a raiyat in the plot of land] and a raiyat possessing land [adjoining such plot of land] both apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:
[Provided also] that as amongst raiyats possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred.
(2) Nothing in this section shall apply to—
(a) a transfer by exchange or by partition, or
(b) a transfer by bequest or gift, or hiba-bil-ewaz, or
(c) a mortgage mentioned in section 7,
(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or]
[(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.
Explanation.—All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.]
(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed o by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.
S. 9 Munsif to allow the application and apportion lands in certain cases.—
(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the- consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, cases or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or [share of the plot of land] be transferred to the applicant and on such order being made, the portion or [share of the plot of land] shall vest in the applicant.
(2) When any person acquires the right, title and interest of the transferee in [such plot of land] by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section (1) of section 8 on a [co-sharer of a raiyat in a plot of land] or a raiyat possessing [land adjoining the plot of land or bargadar].
(8) In making an order under sub-section (1) in favour of more than one [co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or bargadar] the Munsif may apportion the portion or [share of the plot of land] in such manner and on such terms as he deems equitable.
(4) Where any portion or share of a [plot of land] is transferred to the applicant under sub-section (1), such applicant shall be liable to pay all arrears of revenue in respect of such portion or share of the [plot of land] that may be outstanding on the date of the order.
(5) The Munsif shall send a copy of his order as modified on appeal, if any, under sub-section (6) to the prescribed authority for correction of the record-of-rights.
(6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed.
(7) Every appeal pending before an Additional District Magistrate at the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be disposed of by, the District Judge having jurisdiction in relation to the area in which the land is situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.
S. 10 Consequences of an order for transfer.—
On an order under section 9 being made—
(a) the right, title and interest of the raiyat and of the transferee or of the person mentioned in sub-section (2) of section 9 who acquires any right, title and interest in the [plot of land] shall vest in the raiyat whose application for transfer has been allowed by the Revenue Officer or by the Munsif or, after the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1971 (Act 3 of 1971), by the Additional District Magistrate, or after the commencement of the West Bengal Land Reforms (Amendment) Act, 1972, by the District Judge on appeal:
Provided that the transferee or the person mentioned in sub-section (2) of section 9 shall have the right to take away the crops which he might have grown on the land before the date of the order;
(b) the raiyat whose application has been so allowed shall be liable for any revenue accruing from the date of the order.
- an application under said Section 8 may lie whether on the ground of the petitioner being a co-sharer in the holding or on the ground of his possessing land adjoining such holding, it is incumbent on the petitioner to show that there was transfer of either a portion or share of a holding of a raiyat. The word “holding” has been defined by Section 2(6) of the said Act as meaning the land or lands held by a raiyat and treated as a unit for assessment of revenue. [Calcutta High Court Saranan Mondal And Anr. vs Bejoy Bhushan Ghosh on 15 March, 1979 Equivalent citations: AIR 1979 Cal 174 ]
- Further, under Sub-section (1) of Section 8 of the said Act, when there is a transfer of a portion or share of holding of a raiyat to any person other than a co-sharer in the holding, a co-sharer raiyat of the holding or a raiyat possessing land adjoining such holding may apply for transfer of the said portion or share of the holding to him. But that is subject to the limit mentioned in section 14M
- Under the provisions so substituted by the Amendment Act of 1981, non- agricultural lands would become ‘lands’ and the holders thereof would become ‘raiyats’ under and with the meaning of the Land Reforms Act of 1955 and in view of the over-riding effect given to the provisions of the Land Reforms Act under Section 3, even as it stood before, and now further fortified by Section 3 as substituted, right of pre-emption in respect of all lands, agricultural or non- agricultural, would be governed and regulated by Sections 8, 9 and 10 of the Land Reforms Act of 1955.
- Amended s. 2 (10), a “raiyat” may also hold apart from agricultural and/or homestead land, land which is being used for non- agricultural purpose and such land would also form a part of his holding and hence the same can also be pre- empted under s. 8 of the West Bengal Land Reforms Act, 1955 being the land of a “raiyati holding”
Pre-emption under Muhammadan law
What is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognizes pre-emption only with respect to full proprietary rights and that it does not recognise pre-emption with respect to lease-hold rights. We are of opinion that this contention is well-founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is thus stated at p. 207 :-
“There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a lease-hold interest in land.”
This statement of law is supported by a number of decisions to which reference may now be made. The earliest of these decisions is Baboo Ram Golam Singh v. Nursing Sahoy & others (1875) 25 Weekly Reporter (Sutherland) 43. In that case, mokureree land was sold land the owner wanted to pre-empt the sale. The court held that he mokurereedar did not stand in the same position as the malik and the law of pre-emption only applied to the sale of land of a malik i.e., proprietor. Therefore there could be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights.
The next case to which reference may be made is Phul Mohammad Khan v. Quazi Kutubuddin ILR  16 Pat. 519. In that case the Patna High Court held that Mahomedan Law of pre-emption did not apply to pre-empting Mukarrari and raiyati rights, the sale of such interests being not of full proprietary interest.
The next case to which reference may be made is Dashrathlal Chhaganlal v. Bai Dhondubai ILR  Bom. 460. There also the right of pre-emption arose by custom and was co-extensive with Mahomedan Law. The property sold in that case was a plot of land with two rooms on it in which the vendors had transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held. The High Court held that Mahomedan Law of pre-emption with which the custom of pre-emption was co-extensive applied only as between free-holders, that is to say, the neighbouring land in respect of which the custom was claimed must be freehold and the land sought to be pre-empted must also be freehold. It did not arise on the sale of leasehold interests in land.
The next case to which reference may be made is Rameshwar Lal Marwari v. Pandit Ramdeo Jha AIR 1957 Pat. 695. In that case raiyati land had been sold and a suit was brought to pre-empt that sale. The Patna High Court held that there could be no pre-emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre-emption might be sought under Mahomedan Law.
These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre-emption applies only to sales where they are of full ownership and preemptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership, vicinage or participation in amenities and appendages. Learned counsel for the respondent relied on AIR 1933 161 (Oudh) for the proposition that there could be pre-emption of leasehold interest also for that was a case of lease. Pre-emption there was claimed not under Mahomedan Law but under the Oudh Laws Act. That case therefore does not help the respondent. The law in our opinion is quite clear and it is that under the Mahomedan Law of pre-emption there must be full ownership in the land pre-empted and therefore the right of pre-emption does not arise on the sale of leasehold interest in land. It may be added that the preemptor also must have full ownership in order to maintain a suit for pre-emption, for reciprocity is the basis of Mahomedan Law of pre-emption. [MUNNI LAL Vs. BISHWANATH PRASAD AND OTHERS -(1968) AIR(SC) 450]
- Adverse Possession
- Advertisement Agreement
- Amalgamation Of Immovable Property
- Auction Of Property
- Bargadar [West Bengal]
- Benami Property
- Building And Construction Contract
- Cantonment & Military Property
- Capital Assets
- Capital Assets Transfer
- Capital Gain
- Company Amalgamation
- Cyber Law
- Enemy Property
- Family Settlement
- Gift [ Muhamadan]
- Government Grant
- Government Land
- Government Patta
- Heritage Property
- Hotel Accommodation
- Hypothecation & Mortgage
- Intellectual Property
- Land Acquisition
- Land Acquisition
- Market Value Of Property
- Mesne Profit
- Mining And Minerals
- Partition Of Property
- Pre- Emption
- Property & Real Estate
- Property Agreement
- Property Disputes & Specific Reliefs
- Property Insurance
- Property Of Minor & Lunatic
- Property Related Offences
- Property Taxation
- Protection Of Property Of Deceased
- Refuge Land
- Registration Of Property
- Rent Control
- Revenue Record & Mutation
- Rights Over Land Property
- Securitization Of Property
- Slum Areas
- Status Of Raiat/ Bhumidar/ Jamindar
- Succession Of Property
- Temple Management
- Transfer of Motor Vehicles
- Transfer Of Property
- Transfer Pricing
- Trust Property
- Vesting Of Property
- Wakf [ Muhamadan]
CONNECTED HIGH COURT RULES
Appendix I : Calcutta Original Side Rules
Appendix II : Madras Original Side Rules
Appendix III : Bombay High Court Original Side Rules
Appendix IV : Delhi High Court Rules and Orders
1. The Indian Easements Act, 1882
2. The Specific Relief Act, 1963
3. The Code of Civil Procedure, 1908
4. The Limitation Act, 1963
5. The Code of Criminal Procedure, 1973
6. The Transfer of Property Act, 1882 The Transfer of Property Act, 1882
“De Jure Belli ac Pacis,”
Title to Desert Land by Occupancy, Possession, and Prescription.
I. A great difficulty arises here respecting the right to property by uninterrupted possession for any certain time. For though time is the great agent, by whose motion all legal concerns and rights may be measured and determined, yet it has no effectual power of itself to create an express title to any property. Now those rights were introduced by the civil law; and it is not their long continuance, but the express provisions of the municipal law, which gives them their validity. They are of no force therefore, in the opinion of Vasquez, between two independent nations or sovereigns, or between a free nation and a sovereign: between a sovereign and an individual who is not his subject, or between two subjects belonging to different kings or nations. Which indeed seems true; and is actually the case; for such points relating to persons and things, are not left to the law of nature, but are settled by the respective laws of each country. As the unqualified admission of this principle would lead to great inconvenience, and prevent the disputes of kings and nations respecting the bounds of territory from ever being adjusted; in order to eradicate the seeds of perpetual warfare and confusion, so repugnant to the interests and feelings of every people; the settlement of such boundaries is not left to the claims of prescriptive right; but the territories of each contending party are, in general, expressly defined by certain treaties.
II. To disturb any one in the actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the King of the Ammonites demanded the lands situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah opposed his pretentious by proving his own possession of the same for three hundred years, and asked why he and his ancestors had for so long a period neglected to make their claim. And the Lacedaemonians, we are informed by Isocrates, laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena.
Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, “that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers, he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretensions, empty talking, and the latter treats them as idle tales and fables. With these opinions Cicero, in his 2nd book of Offices, agrees, asking “what justice there can be in depriving an owner of the land, which he has for many ages quietly possessed?”
III. Can it be said, in order to justify the disturbance of long enjoyed possessions, that the rightful owner INTENDED to assert his claim, when he never manifested such intention by any outward visible act? The effect of right which depends upon a man’s intentions can never follow from a bare conjecture of his will, unless he has declared and proved it by some express and visible act. For actions being the only evidence of intentions, intentions can never of themselves alone without such acts be the object of human laws. No conjectures indeed respecting the acts of the mind can be reduced to mathematical certainty, but only to the evidence of probability at the utmost. For men by their words may express intentions different from their real ones, and by their acts counterfeit intentions which they have not. The nature of human society, however, requires that all acts of the mind, when sufficiently indicated, should be followed by their due effects. Therefore the intention, which has been sufficiently indicated, is taken for granted against him who gave such indication.
IV. But to proceed to proofs derived from actions. A thing is understood to be abandoned, when it is cast away; except it be under particular circumstances, as throwing goods overboard in a storm to lighten a ship, where the owner is not supposed to have abandoned all intention of recovery, should it ever be in his power. Again, by giving up or cancelling a promissory note, a debt is deemed to be discharged. Paulus the Lawyer, says, a right to property may be renounced not only by words, but also by actions, or any other indication of the will. Thus, if an owner knowingly make a contract with any one who is in possession, treating him as if he were the rightful proprietor, he is naturally supposed to have relinquished his own pretensions. Nor is there any reason, why the same rule may not take place between sovereign princes, and independent states, as between individuals. In the same manner, a Lord by granting certain privileges to his Vassal, which he could not legally enjoy without a release from his former obligations, was supposed by such act to have given him his freedom. A power derived not from the civil law only, but from the law of nature, which allows every man to relinquish what is his own, and from a natural presumption that a person designed to do the act which he has given manifest proofs of his intention to do. In this sense, Ulpian may be rightly understood, where he says, that ACCEPTILATION or the verbal discharge of a debt is founded upon the law of nations.
V. Even omissions, taking all proper circumstances into consideration, come under the cognizance of the law. Thus the person, who knowing of an act, and being present at the commission of it, passes it over in silence, seems to give his consent to it; this was admitted by the Mosaic Law. Unless indeed it can be shewn that the same person was hindered from speaking either by fear or some other pressing circumstance. Thus a thing is accounted as lost when all hope of recovering it is given up; as for instance, if a tame animal, which was in our possession, be seized and carried off by a wild beast. Goods too lost by shipwreck, Ulpian says, cease to be considered as our own, not immediately, but when they are lost beyond all possibility of being reclaimed, and when no proofs of the owner’s intention to reclaim them can be discovered.
Now the case is altered, if persons were sent to inquire after the lost goods, or property, and a reward was promised to the finder. But if a person knows his property to be in the possession of another, and allows it to remain so for a length of time, without asserting his claim, unless there appear sufficient reasons for his silence, he is construed to have entirely abandoned all pretensions to the same. And to the same purpose he has said elsewhere, that a house is looked upon to be abandoned on account of the long silence of the proprietor.
The Emperor Antoninus Pius, in one of his rescripts, said there was but little justice in claiming interest upon money after a long period; for the length of time elapsed was an indication that the debtor had been excused from payment, from some motive of kindness.
There appears something similar to this in the nature of custom. For apart from the authority of civil laws, which regulate the time and manner of custom, and its introduction, it may arise from the indulgence of a sovereign to a conquered people. But the length of time from which custom derives the force of right, is not defined, but left to the arbitrary decision of what is sufficient to indicate general consent. But for silence to be taken as a valid presumption that property is deserted, two things are requisite: it must be a silence with a knowledge of the fact, and with a perfect freedom of will in the person concerned. For a silence founded in ignorance can have no weight; and where any other reason appears, the presumption of free consent must fail.
VI. Although the two requisites already named may be produced, yet other reasons have their weight; among which length of time is not the least important. For in the first place, it can scarcely happen, that for a great length of time a thing belonging to any one should not some way or other come to his knowledge, as time might supply many opportunities. Even if the civil law did not interpose to bar remote pretensions, the very nature of things would shew the reasonableness of a shorter period of limitation being allowed to present than to absent claimants. If impressions of fear were pleaded by any one in excuse, yet their influence would not be of perpetual duration, and length of time would unfold various means of security against such fears, either from resources within himself, or from the assistance of others. Escaping beyond the reach of him he dreaded, he might protest against his oppression, by appealing to proper judges and arbitrators.
VII. Now as time immemorial, considered in a moral light, seems to have no bounds, silence for such a length of time appears sufficient to establish the presumption that all claim to a thing is abandoned, unless the strongest proofs to the contrary can be produced. The most able Lawyers have properly observed, that time according to the memory of man is not an hundred years, though probably it may not fall far short of that space. For a hundred years are the term beyond which human existence seldom reaches; a space, which in general completes three ages or generations of men. The Romans made this objection to Antiochus, that he claimed cities, which neither he himself, his father, nor his grandfather had ever possessed.
VIII. From the natural affection which all men have for themselves, and their property, an objection may be taken against the presumption of any one’s abandoning a thing which belongs to him, and consequently negative acts, even though confirmed by a long period of time, are not sufficient to establish the above named conjecture.
Now considering the great importance deservedly attached to the settlement of CROWNS, all conjectures favourable to the possessors ought to be allowed. For if Aratus of Sicyon thought it a hard case, that PRIVATE possessions of fifty years’ standing should be disturbed, how much weightier is that maxim of Augustus, that it is the character of a good man and a good subject to wish for no change in the present government, and, in the words, which Thucydides has assigned to Alcibiades, to support the constitution, under which he has been born? But if no such rules in favour of possession could be adduced, yet a more weighty objection might be found against the presumption, drawn from the inclination of every one to preserve his own right, which is the improbability of one man’s allowing another to usurp his property for any length of time, without declaring and asserting his own right.
IX. Perhaps it may reasonably be said, that this matter does not rest upon presumption only, but that it is a rule, introduced by the voluntary law of Nations, that uninterrupted possession, against which no claim has been asserted, will entirely transfer such property to the actual possessor. For it is most likely that all nations by consent gave their sanction to such a practice, as conducive to their common peace. The term uninterrupted possession therefore has been very properly used to signify, as Sulpitius says in Livy, “that which has been held by one uniform tenour of right, without intermission.” Or as the same author, in another place, calls it, “perpetual possession, that has never been called in question.” For a transitory possession creates no title. And it was this exception which the Numidians had urged against the Carthaginians, alleging that as opportunity offered, sometimes the Kings of the Numidians had appropriated to themselves the disputed possessions, which had always remained in the hands of the stronger party.
X. But here another question, and that of considerable difficulty, arises, which is, to decide, whether, by this desertion, persons yet unborn may be deprived of their rights. If we maintain that they MAY NOT, the rule already established would be of no avail towards settling the tranquillity of kingdoms, and security of property. For in most things some thing is due to the interests of posterity. But if we affirm that they MAY, it then seems wonderful that silence should prejudice the rights of those, who were unable to speak, before they had any existence, and that the act of OTHERS should operate to their injury. To clear up this point, we must observe that no rights can belong to a person before he has any existence, as, in the language of the schools, there can be no accident without a substance. Wherefore if a Prince, from urgent motives of policy, and for the advantage of his own native dominions, and subjects, should decline to accept an additional sovereignty, or for the same reasons, should relinquish that, which he had already accepted, he would not be charged with injuring his heirs and successors, then unborn, who could have no rights before they had a natural existence.
Now as a sovereign may EXPRESSLY declare a change of his will respecting such dominions, so that change may, in certain cases, be implied without such declaration.
In consequence of such a change either expressed or implied, before the rights of heirs and successors can be supposed to have any existence, the possession may be considered as entirely abandoned. The case here has been considered according to the LAW OF NATURE: for the civil law, among other fictions, introduced that of the law’s personating those, who are not yet in being, and so preventing any occupancy from taking place to their prejudice; a regulation of law established upon no slight grounds in order to preserve estates in families, although every means of PERPETUATING property to individuals, which prevents its transfer from hand to hand, may in some measure be detrimental to the public interest. From whence it is a received opinion, that length of time will give a property in those fees, which were originally conveyed, not by right of succession, but by virtue of primitive investiture. Covarruvias, a lawyer of great judgment, supports this opinion with the strongest arguments in favour of primogeniture, and applies it to estates left in trust. For nothing can prevent the civil law from instituting a right, which, though it cannot be lawfully alienated by the act of one party without consent of the other, yet, to avoid uncertainty in the tenure of present proprietors, may be lost by neglect of claim for a length of time. Still the parties thus deprived may maintain a personal action against those, or their heirs, through whose neglect their right has been forfeited.
XI. It is an inquiry of importance whether the law of usucaption and prescription, if it prevail in a prince’s dominions, can be applied to the tenure of the crown, and all its prerogatives. Many legal writers, who have treated of the nature of sovereign power according to the principles of the Roman civil law, seem to affirm that it may be so applied. But this is an opinion to which we cannot accede in its full extent. For to make a law binding upon any one, it is requisite that the legislator should possess both power and will. A legislator is not bound by his law, as by the irrevocable and unchangeable controul of a superior. But occasions may arise that will demand an alteration or even a repeal of the law which he has made. Yet a legislator may be bound by his own law, not directly as a legislator, but as an individual forming part of the community: and that too according to natural equity, which requires that all the component parts should bear a reference to the whole. We find in holy writ, this rule observed by Saul in the beginning of his reign.
Now that rule does not take place here. For we are considering the lawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the whole community. Nor indeed can any such intention in the lawgiver be presumed to have existed. For legislators are not supposed to comprehend themselves within the rule of the law, except where the nature and subject of it are general. But sovereignty is not to be compared with other things; it so far surpasses them in the nobleness of its end, and the dignity of its nature. Nor is any civil law to be found which either does, or designs to comprehend sovereign power within the rules of prescription.
“De Jure Belli ac Pacis,”
Part I General Principles as to Legal Estates, Equitable Interests and Powers
1. Legal estates and equitable interests.
2. Conveyances overreaching certain equitable interests and powers.
3. Manner of giving effect to equitable interests and powers.
4. Creation and disposition of equitable interests.
5. Satisfied terms, whether created out of freehold or leasehold land to cease.
6. Saving of lessors’ and lessees’ covenants.
7. Saving of certain legal estates and statutory powers.
8. Saving of certain legal powers to lease.
9. Vesting orders and dispositions of legal estates operating as conveyances by an estate owner.
10. Title to be shown to legal estates.
11. Registration in Middlesex and Yorkshire as respects legal estates.
12. Limitation and Prescription Acts.
13. Effect of possession of documents.
14. Interests of persons in possession.
15. Presumption that parties are of full age.
16–18.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Infants and Lunatics
19. Effect of conveyances of legal estates to infants.
20. Infants not to be appointed trustees.
21. Receipts by married infants.
22. Conveyances on behalf of persons suffering from mental disorder and as to land held by them in trust.
Dispositions on Trust for Sale
23. Duration of trusts for sale.
Trusts of land
24. Appointment of trustees of land.
25. Power to postpone sale.
26. Consents to the execution of a trust for sale.
27. Purchaser not to be concerned with the trusts of the proceeds of sale which are to be paid to two or more trustees or to a trust corporation.
28. Powers of management, &c. conferred on trustees for sale.
29. Delegation of powers of management by trustees for sale.
30. Powers of court where trustees for sale refuse to exercise powers.
31. Trust of mortgaged property where right of redemption is barred.
32. Implied trust for sale in personalty settlements.
33. Application of Pt. I. to personal representatives.
Undivided Shares and Joint Ownership
34. Effect of future dispositions to tenants in common.
35. Meaning of the statutory trusts.
36. Joint tenancies.
37. Rights of husband and wife.
38. Party structures.
39. Transitional provisions in First Schedule.
Part II Contracts, Conveyances and other Instruments
40.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41. Stipulations not of the essence of a contract.
42. Provisions as to contracts.
43. Rights protected by registration.
44. Statutory commencements of title.
45. Other statutory conditions of sale.
46. Forms of contracts and conditions of sale.
47. Application of insurance money on completion of a sale or exchange.
48. Stipulations preventing a purchaser, lessee, or underlessee from employing his own solicitor to be void.
49. Applications to the court by vendor and purchaser.
50. Discharge of incumbrances by the court on sales or exchanges.
Conveyances and other Instruments
51. Lands lie in grant only.
52. Conveyances to be by deed.
53. Instruments required to be in writing.
54. Creation of interests in land by parol.
55. Savings in regard to last two sections.
56. Persons taking who are not parties and as to indentures.
57. Description of deeds.
58. Provisions as to supplemental instruments.
59. Conditions and certain covenants not implied.
60. Abolition of technicalities in regard to conveyances and deeds.
61. Construction of expressions used in deeds and other instruments.
62. General words implied in conveyances.
63. All estate clause implied.
64. Production and safe custody of documents.
65. Reservation of legal estates.
66. Confirmation of past transactions.
67. Receipt in deed sufficient.
68. Receipt in deed or indorsed evidence.
69. Receipt in deed or indorsed authority for payment to solicitor.
70. Partial release of security from rentcharge.
71. Release of part of land affected from a judgment.
72. Conveyances by a person to himself, &c.
73.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
74. Execution of instruments by or on behalf of corporations.
74A.Execution of instrument as a deed
75. Rights of purchaser as to execution.
76. Covenants for title.
77. Implied covenants in conveyances subject to rents.
78. Benefit of covenants relating to land.
79. Burden of covenants relating to land.
80. Covenants binding land.
81. Effect of covenant with two or more jointly.
82. Covenants and agreements entered into by a person with himself and another or others.
83. Construction of implied covenants.
84. Power to discharge or modify restrictive covenants affecting land.
Part III Mortgages, Rentcharges, and Powers of Attorney
85. Mode of mortgaging freeholds.
86. Mode of mortgaging leaseholds.
87. Charges by way of legal mortgage.
88. Realisation of freehold mortgages.
89. Realisation of leasehold mortgages.
90. Realisation of equitable charges by the court.
91. Sale of mortgaged property in action for redemption or foreclosure.
92. Power to authorise land and minerals to be dealt with separately.
93. Restriction on consolidation of mortgages.
94. Tacking and further advances.
95. Obligation to transfer instead of re-conveying, and as to right to take possession.
96. Regulations respecting inspection, production and delivery of documents, and priorities.
97. Priorities as between puisne mortgages.
98. Actions for possession by mortgagors.
99. Leasing powers of mortgagor and mortgagee in possession.
100. Powers of mortgagor and mortgagee in possession to accept surrenders of leases.
101. Powers incident to estate or interest of mortgagee.
102. Provision as to mortgages of undivided shares in land.
103. Regulation of exercise of power of sale.
104. Conveyance on sale.
105. Application of proceeds of sale.
106. Provisions as to exercise of power of sale.
107. Mortgagee’s receipts, discharges, &c.
108. Amount and application of insurance money.
109. Appointment, powers, remuneration and duties of receiver.
110. Effect of bankruptcy of the mortgagor on the power to sell or appoint a receiver.
111. Effect of advance on joint account.
112. Notice of trusts on transfer of mortgage.
113. Notice of trusts affecting mortgage debts.
114. Transfers of mortgages.
115. Reconveyances of mortgages by endorsed receipts.
116. Cesser of mortgage terms.
117. Forms of statutory legal charges.
118. Forms of statutory transfers of legal charges.
119. Implied covenants, joint and several.
120. Form of discharge of statutory mortgage or charge.
121. Remedies for the recovery of annual sums charged on land.
122. Creation of rentcharges charged on another rentcharge and remedies for recovery thereof.
Powers of Attorney
123.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
124.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
125. Powers of attorney relating to land to be filed.
126–129.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part IV Equitable Interests and things in Action
130. Creation of entailed interests in real and personal property.
131. Abolition of the rule in Shelley’s case.
132. As to heirs taking by purchase.
133.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
134. Restriction on executory limitations.
135. Equitable waste.
136. Legal assignments of things in action.
137. Dealings with life interests, reversions and other equitable interests.
138. Power to nominate a trust corporation to receive notices.
Part V Leases and Tenancies
139. Effect of extinguishment of reversion.
140. Apportionment of conditions on severance.
141. Rent and benefit of lessee’s covenants to run with the reversion.
142. Obligation of lessor’s covenants to run with reversion.
143. Effect of licences granted to lessees.
144. No fine to be exacted for licence to assign.
145. Lessee to give notice of ejectment to lessor.
146. Restrictions on and relief against forfeiture of leases and underleases.
147. Relief against notice to effect decorative repairs.
148. Waiver of a covenant in a lease.
149. Abolition of interesse termini, and as to reversionary leases and leases for lives.
150. Surrender of a lease, without prejudice to underleases with a view to the grant of a new lease.
151. Provision as to attornments by tenants.
152. Leases invalidated by reason of non-compliance with terms of powers under which they are granted.
153. Enlargement of residue of long terms into fee simple estates.
154. Application of Part V. to existing leases.
Part VI Powers
155. Release of powers simply collateral.
156. Disclaimer of power.
157. Protection of purchasers claiming under certain void appointments.
158. Validation of appointments where objects are excluded or take illusory shares.
159. Execution of powers not testamentary.
160. Application of Part VI. to existing powers.
Part VII Perpetuities and Accumulations
161. Abolition of the double possibility rule.
162. Restrictions on the perpetuity rule.
163.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
164. General restrictions on accumulation of income.
165. Qualification of restrictions on accumulation.
166. Restriction on accumulation for the purchase of land.
Part VIII Married Women and Lunatics
167–170.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
171.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part IX Voidable Dispositions
172.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
173. Voluntary disposition of land how far voidable as against purchasers.
174. Acquisitions of reversions at an under value.
Part X Wills
175. Contingent and future testamentary gifts to carry the intermediate income.
176. Power for tenant in tail in possession to dispose of property by specific devise or bequest.
177.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
178.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
179. Prescribed forms for reference in wills.
Part XI Miscellaneous
180. Provisions as to corporations.
181. Dissolution of a corporation.
182. Protection of solicitor and trustees adopting Act.
183. Fraudulent concealment of documents and falsification of pedigrees.
184. Presumption of survivorship in regard to claims to property.
186. Rights of pre-emption capable of release.
187. Legal easements.
188. Power to direct division of chattels.
189. Indemnities against rents.
Redemption and Apportionment of Rents, &c.
190. Equitable apportionment of rents and remedies for non-payment or breach of covenant.
191.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
192. Apportionment of charges payable for redemption of tithe rentcharge.
Commons and Waste Lands
193. Rights of the public over commons and waste lands.
194. Restrictions on inclosure of commons.
Judgments, &c. affecting Land
195.Equitable charges in right of judgment debt, &c.
196. Regulations respecting notices.
197. Notice of memorials registered in Middlesex and Yorkshire.
198. Registration under the Land Charges Act, 1925, to be notice.
199. Restrictions on constructive notice.
200. Notice of restrictive covenants and easements.
Part XII Construction, Jurisdiction, and General Provisions
201. Provisions of Act to apply to incorporeal hereditaments.
202. Provisions as to enfranchisement of copyholds, &c.
203. Payment into court, jurisdiction and procedure.
204. Orders of court conclusive.
205. General definitions.
206. Forms of instruments and examples of abstracts.
207. Repeals as respects England and Wales.
208. Application to the Crown.
209.Short title, commencement, and extent.
FIRST SCHEDULE Transitional Provisions
SECOND SCHEDULE Implied Covenants
THIRD SCHEDULE Forms of Transfer and Discharge of Mortgages
FOURTH SCHEDULE Forms relating to Statutory Charges or Mortgages of Freehold or Leasehold Land
FIFTH SCHEDULE Forms of Instruments
SIXTH SCHEDULE Epitomes of Abstracts of Title
(1)In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:—
(i)“Bankruptcy” includes liquidation by arrangement; also in relation to a corporation means the winding up thereof;
(ii)“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; “convey” has a corresponding meaning; and “disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning;
(iii)“Building purposes” include the erecting and improving of, and the adding to, and the repairing of buildings; and a “building lease” is a lease for building purposes or purposes connected therewith;
(iiiA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv)“Death duty” means estate duty . . . and every other duty leviable or payable on a death;
(v)“Estate owner” means the owner of a legal estate, but an infant is not capable of being an estate owner;
(vi)“Gazette” means the London Gazette;
(vii)“Incumbrance” includes a legal or equitable mortgage and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and “incumbrancer” has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;
(viii)“Instrument” does not include a statute, unless the statute creates a settlement;
(ix)“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; . . and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same . . .; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;
(x)“Legal estates” mean the estates, interests and charges, in or over land (subsisting or created at law) which are by this Act authorised to subsist or to be created as legal estates; “equitable interests” mean all the other interests and charges in or over land . .; an equitable interest “capable of subsisting as a legal estate” means such as could validly subsist or be created as a legal estate under this Act;
(xi)“Legal powers” include the powers vested in a chargee by way of legal mortgage or in an estate owner under which a legal estate can be transferred or created; and “equitable powers” mean all the powers in or over land under which equitable interests or powers only can be transferred or created;
(xii)“Limitation Acts” mean the Real Property Limitation Acts, 1833, 1837 and 1874, and “limitation” includes a trust;
(xiii) “ Mental disorder ” has the meaning assigned to it by section 1 of the Mental Health Act 1983 ] , and “ receiver ”, in relation to a person suffering from mental disorder, means a receiver appointed for that person under art VIII of the Mental Health Act 1959 or Part VII of the said Act of 1983 ] of that Act; ]
(xiv)A “mining lease” means a lease for mining purposes, that is, the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes;
(xv)“Minister” means the “Minister of Agriculture and Fisheries”;
(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;
(xvii)“Notice” includes constructive notice;
(xviii)“Personal representative” means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the court;
(xix)“Possession” includes receipt of rents and profits or the right to receive the same, if any; and “income” includes rents and profits;
(xx)“Property” includes any thing in action, and any interest in real or personal property;
(xxi)“Purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property except that in Part I of this Act and elsewhere where so expressly provided “purchaser” only means a person who acquires an interest in or charge on property for money or money’s worth; and in reference to a legal estate includes a chargee by way of legal mortgage; and where the context so requires “purchaser” includes an intending purchaser; “purchase” has a meaning corresponding with that of “purchaser”; and “valuable consideration” includes marriage and formation of a civil partnership,] but does not include a nominal consideration in money;
(xxii)“Registered land” has the same meaning as in the Land Registration Act 2002; . .
(xxiii)“Rent” includes a rent service or a rentcharge, or other rent, toll, duty, royalty, or annual or periodical payment in money or money’s worth, reserved or issuing out of or charged upon land, but does not include mortgage interest; “rentcharge” includes a fee farm rent; “fine” includes a premium or foregift and any payment, consideration, or benefit in the nature of a fine, premium or foregift; “lessor” includes an underlessor and a person deriving title under a lessor or underlessor; and “lessee” includes an underlessee and a person deriving title under a lessee or underlessee, and “lease” includes an underlease or other tenancy;
(xxiv)“Sale” includes an extinguishment of manorial incidents, but in other respects means a sale properly so called;
(xxv)“Securities” include stocks, funds and shares;
(xxvi)“Tenant for life,” “statutory owner,” “settled land,” “settlement,” “vesting deed,” “subsidiary vesting deed,” “vesting order,” “vesting instrument,” “trust instrument,” “capital money,” and “trustees of the settlement” have the same meanings as in the Settled Land Act, 1925;
(xxvii)“Term of years absolute” means a term of years (taking effect either in possession or in reversion whether or not at a rent) with or without impeachment for waste, subject or not to another legal estate, and either certain or liable to determination by notice, re-entry, operation of law, or by a provision for cesser on redemption, or in any other event (other than the dropping of a life, or the determination of a determinable life interest); but does not include any term of years determinable with life or lives or with the cesser of a determinable life interest, nor, if created after the commencement of this Act, a term of years which is not expressed to take effect in possession within twenty-one years after the creation thereof where required by this Act to take effect within that period; and in this definition the expression “term of years” includes a term for less than a year, or for a year or years and a fraction of a year or from year to year;
(xxviii)“Trust Corporation” means the Public Trustee or a corporation either appointed by the court in any particular case to be a trustee or entitled by rules made under subsection (3) of section four of the Public Trustee Act, 1906, to act as custodian trustee;
(xxix)“Trust for sale,” in relation to land, means an immediate . . . trust for sale, whether or not exercisable at the request or with the consent of any person . .; “trustees for sale” mean the persons (including a personal representative) holding land on trust for sale; . .
(xxx)“United Kingdom” means Great Britain and Northern Ireland;
(xxxi)“Will” includes codicil.
RERA vs HIRA
The West Bengal Housing Industry Regulation Bill 2017 was passed by the state assembly, on August 16, 2017, although it missed the July 31 deadline by the centre, for adoption of the Real Estate (Regulation and Development) Act (RERA) 2016, in all states.The bill aims to offer consumers protection from building and housing promoters. Once notified by the West Bengal government, all housing projects above 500 sq metres or eight apartments, need to be registered with the state regulator, the Housing Industry Regulatory Authority (HIRA). The bill proposes to bring the HIRA in place, over the next 60 days. The real estate industry body CREDAI Bengal said as reported that The Real Estate Act came into force on May 1, 2017 and the state government is to notify the rules.
- West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.[ To be replaced by West Bengal Housing Industry Regulation Act, 2017]
- Consumer Protection Act, 1986
- Competition Act, 2002
- The Real Estate (Regulation and Development) Act, 2016 (“RERA”)
STATE LAW VS CENTRAL LAW
IF a central Act is considered to be a complete code with respect to regulation and development of real estate in India, West Bengal Act would be repugnant due to mere existence of RERA.
- Hoechst Pharmaceuticals v. State of Bihar, 1983 (4) SCC 45
- Offshore Holdings Private Limited v. Bangalore Development Authority, C.A. No. 711 of 2011, decided on January 18, 2011 (Supreme Court)
- M/s Innoventive Industries Limited v. ICICI Bank[SC-decided on August 31, 2017]
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was held to be a complete code in the case of Pegasus Assets Reconstruction Private Limited v. Haryana Concast Limited, C.A. No. 3646 of 2011, decided on December 29, 2015 (Supreme Court);
The Banking Regulation Act, 1949 was held to be a complete code in the case of ICICI Bank Limited v. Official Liquidator of APS Star Industries, AIR 2011 SC 1521;
The Foreigners Act, 1946 was held to be exhaustive in Martinez Montsant Joan v. Union of India, 2009 (5) ALT 120.
M/s Innoventive Industries Limited v. ICICI Bank, (C.A. No. 8337 of 2009, decided on August 31, 2017) (Supreme Court);
Deep Chand v. State of U.P., AIR 1959 SC 648; Ch. Tika Ramji v. The State of Uttar Pradesh, (1956) SCR 393.
Animal Welfare Board of India v. A. Nagaraja, C.A. No. 5387 of 2014, decided on May 7, 2014 (Supreme Court).
State of Orissa v. M. A. Tulloch & Co., (1964) 4 SCR 461.