Hon’ble Mr. Justice M.G.S. Kamal celebrates his 55th birthday today.
Hon’ble Mr. Justice M. G. Shukure Kamal: Born on 30th June, 1971 at Kodlipet, Kodagu District. Did his Primary & Secondary education both at Kodlipete and Suntikoppa of Kodagu District. Completed his PUC at Govt. Senior College, Madikeri and did his BAL.,LL.B. at Vidyavardhaka Law College, Mysuru. He was enrolled as an Advocate with the Karnataka State Bar Council on 05.08.1994. He appeared before the High Court of Karnataka, City Civil and Sessions Court, Chief Metropolitan Magistrate Courts, Debt Recovery Tribunals at Bengaluru, mainly in Civil, Criminal, Constitutional, Labour, Arbitration, Revenue and Wakf matters. His Lordship appointed as Additional Judge of the High Court of Karnataka and taken oath on 17.03.2021 and Permanent Judge on 30.09.2022.
Important judgments delivered by Justice M.G. Shukure Kamal.
Principles of Natural Justice. In the absence of any legal right, the principles do not apply. Authority passing resolution in favour of a person without any statutory backing can withdraw it without prior notice. Karnataka High Court.
Land Acquisition Act 1894. Land acquired and vested with the Government can NOT be withdrawn. Unless there is material to rebut statutory presumption, notification under Section 16(2) is evidence of taking possession. Karnataka High Court.
Land Acquisition Act, 1894. Market value. Amount awarded under consent award in respect of similarly situated land acquired for similar purpose can be treated to be the base price. Karnataka High Court.
A representative suit cannot be permitted to the withdrawn or compromised without complying with mandatory procedure under Order 1 Rule 8 (4) of the Civil Procedure Code. Karnataka High Court.
Education. Though admission deadline is inviolable if the authority extends it, admission of students beyond deadline is valid. Karnataka High Court.
Though a minor can be beneficiary/ recipient under a contract, he cannot be subjected to any obligation or burden of performance of any reciprocal promise. Karnataka High Court.
Action taken pursuant to and upon an insufficiently stamped document cannot be termed as illegal, null and void and nonest in the eye of law in the absence of any specific provisions thereof. Karnataka High Court.
Suit for specific performance. Merely because the agreement does not stipulate any time, the same cannot be expected remain unperformed for all the time to come. Karnataka High Court.
Bombay-Karnataka area. Succession among Hindus coming under the Bombay School of Inheritance. Sister was entitled for a share if the succession had opened prior to 1956. Karnataka High Court.
“Writ Petition seeking revision of voters list cannot be maintained except by the persons aggrieved.” Karnataka High Court, while dismissing the petition filed by MLA seeking rectification of voters list of his constituency.
Indian Succession Act. Succession Certificate cannot be issued in respect of immovable property in Karnataka. Authorities cannot insist on production of Succession Certificate for transfer of khata of the property bequeathed under a Will.
State or its authorities cannot levy tax on the properties belong to Union of India constructed after the commencement of the Constitution of India in view of Article 285. Karnataka High Court.
Limitation Act. When calculating the delay in filing an appeal, the time spent prosecuting a Civil Revision Petition that was dismissed on jurisdictional grounds must be excluded, as per Section 14. Karnataka High Court.
Karnataka Stamp Act. If a document is already adjudicated and the stamp duty is paid, the trial court cannot impound the same document again under Section 34 of the Act and direct payment of stamp duty and penalty for a second time. Karnataka High Court.
Upon execution of the sale deed and payment of stamp duty, the agreement to sell merges with the sale deed. No additional stamp duty is payable on the agreement unless the sale consideration differs between the two documents. Karnataka High Court.
Mere execution of lease-cum-sale deed and possession certificate without actual delivery of possession will not absolve the BDA to allot alternate site when the site itself is not handed over to the allottee. Karnataka High Court.
Land acquisition initiated under the 1894 Act. If compensation amounts in respect of majority of land holdings are not deposited as on the date of the commencement of the 2013 Act, the compensation is required to be determined as per the provisions of the said 2013 Act. Karnataka High Court.
BDA scheme for residential apartments. Purchaser of a residential property is liable to pay GST if booking is made prior to completion of construction. Karnataka High Court.
A court fee dispute in civil suit should be decided as a preliminary issue only if it affects the court’s pecuniary jurisdiction; otherwise, it can be considered along with other issues in the suit. Karnataka High Court.
Karnataka Court Fees and Suit Valuation Act. In partition suits, if a plaintiff claims joint possession, the suit can be valued under Section 35(2). The possession of one co-owner is presumed to be possession of all unless specifically excluded. Karnataka High Court.
Allotment of compensatory sites. Once a sale deed is executed and registered, the BDA loses all rights over the property. Unilateral cancellation of the sale deed by the authority is arbitrary, illegal, and unenforceable. Karnataka High Court.
Inordinate delay in land acquisition appeals requires valid justification. Mere plea of illiteracy or ignorance is insufficient. Prior compensation awards are not binding precedents unless land similarity is proven. Compensation enhancement must be based on independent valuation evidence. Karnataka High Court.
Land acquisition lapses under Section 11A of the 1894 Act if the award is not made within two years. Lapse of acquisition occurs automatically by operation of law when statutory conditions are not met. Karnataka High Court.
When delay in payment of the auction balance is caused by factors attributable to the auctioning authority such as dispute resolution, interest cannot be levied on the purchaser. Karnataka High Court.
Once a property is notified as Waqf property under the Waqf Act, the notification is binding on all parties unless challenged within the stipulated time and in the manner prescribed under the Act. Karnataka High Court.
Power to appoint and remove the Mutawalli is exclusively vested with the Waqf Board under the Waqf Act. Jurisdiction of the Civil Court in this regard is ousted. Karnataka High Court.
Objection regarding jurisdiction over the subject matter can be raised even in the second appeal. Objection with respect to territorial or local jurisdiction and pecuniary jurisdiction shall be raised at the earliest stage. Karnataka High Court.
Partition. Court cannot appoint an advocate for the purpose of division of the property. Division of property can be done either by a Collector or any Gazetted subordinate of the Collector deputed by him. Karnataka High Court.
Maintenance and Welfare of Parents and Senior Citizens Act. Bank, to which property is mortgaged, can file Writ Petition questioning the order cancelling the gift deed in favour of the borrower, to enforce the security interest. Karnataka High Court.
“Once a Waqf is always a Waqf’’ phrase cannot be used to justify adding properties to the Waqf list that were previously excluded. Karnataka High Court.
Maintenance and Welfare of Parents and Senior Citizens Act. Failure to challenge gift deeds in favour of other children does not constitute grounds for dismissing an application. Karnataka High Court.
Plea of adverse possession must be proved by independent evidence and the parties cannot depend on the documents of non-contesting parties. Karnataka High Court.
Once a suit is found to be barred by limitation, the Court cannot go into merits of the case and give findings on other issues. Karnataka High Court.
Purchaser of joint family property from one of the co-owners can assert his right under Section 44 of the Transfer of Property Act only to the extent of his vendor’s share though the entire property was sold to him. Karnataka High Court.
Respondent in an appeal can state that finding against him on a particular issue ought to have been in his favour without filing appeal or cross objection. Appellate court cannot reject the plea when cross appeal is not filed. Karnataka High Court.
Adopted son cannot divest shares in property already vested with members of the family to which he is adopted. Karnataka High Court.
Accident involving parked and moving vehicle. Foremost obligation/burden is on the owner of the vehicle which is parked on the road and prove that he had indeed complied with the requirement of Section 122 of MV Act. Karnataka High Court.
Statutory body allotting sites by merely mutating names of the allottees in the revenue records without causing execution and registration of title document will not confer any right. Karnataka High Court.
Land acquisition. Once award is passed, Land Acquisition Officer becomes functus officio and except carrying out clerical or arithmetical mistakes if any in the award, there cannot be any further re-consideration of the award. Karnataka High Court.
Khatha of property cannot be unilaterally cancelled alleging encroachment of Village Panchayat property without following the procedure under the Karnataka Panchayat Raj (Removal of Obstructions and Encroachment) Rules. Karnataka High Court.
Non consideration of application for production of additional evidence under Order 41 Rule 27 while disposing the appeal is a mistake and an error apparent on the face of the record providing “sufficient reason” for review. Karnataka High Court.
Post of primary school teacher is a ‘civil post’. Only the Administrative Tribunal and not the High Court has jurisdiction to deal with the issue pertaining to the selection. Karnataka High Court.
Acquisition of lands for BMRCL under the KIAD Act. Compensation is payable under the provisions of land acquisition Act, 2013 without deducting the Tax at source under the Income Tax Act. Karnataka High Court.
Writ of mandamus. To meet the ends of justice, Writ Court itself can grant relief to aggrieved persons without relegating them to the authorities. Karnataka High Court.
Societies Registration Act applies to educational institutions run by a religious mutt if the institutions are registered under the Act. Karnataka High Court.
Suit for bare injunction is not maintainable when defendant apart from denying title and possession of plaintiff sets-up title to himself. Karnataka High Court.
State or its authorities cannot levy tax on the properties belong to Union of India constructed after the commencement of the Constitution of India in view of Article 285. Karnataka High Court.
Indian Succession Act. Succession Certificate cannot be issued in respect of immovable property in Karnataka. Authorities cannot insist on production of Succession Certificate for transfer of khata of the property bequeathed under a Will.
“Writ Petition seeking revision of voters list cannot be maintained except by the persons aggrieved.” Karnataka High Court, while dismissing the petition filed by MLA seeking rectification of voters list of his constituency.
Orders and recovery certificates issued by the Real Estate Regulatory Authority are binding and enforceable as arrears of land revenue. The State must identify, attach, and auction the defaulting developer’s assets to satisfy homebuyers’ claims within a reasonable, court-fixed timeframe. Karnataka High Court.
In a suit for declaration, the Court can ‘mould the relief’ to order a partition among the legitimate branches of the lineage. The absence of certain legal heirs as formal parties does not preclude the Court from ordering a partition; their specific entitlements can be adjudicated and protected during the ‘Final Decree’ proceedings. Karnataka High Court.
Partnership Act. Unless otherwise agreed between the parties or unless contrary intention appears, the property brought in as a capital contribution or business of a firm by a partner shall be treated as a property of the firm. Karnataka High Court.
A document evidencing the transfer of an interest in immovable property to a partnership firm, towards a partner’s share, does not require compulsory registration under the Registration Act. Karnataka High Court.
Karnataka Stamp Act. While determining the market value of a leased property, registration authorities cannot rely solely on the guidance value. They are required to consider any restrictive clauses in the lease such as limitations on use, transfer, or enjoyment which may diminish the property’s value in comparison to an unencumbered freehold property. Karnataka High Court.
Representation of the People Act. The non-disclosure of substantial immovable assets in the affidavit constitutes a ‘material non-compliance’. Since the right to know the financial antecedents of a candidate is a fundamental right of the voters, any significant suppression of wealth or property ownership vitiates the election process. Karnataka High Court.
Transfer of Property Act. A sale of joint family property executed by a single co-owner, who obtained exclusive mutation of the property in their name through the suppression of other legal heirs, is binding only to the extent of that co-owner’s actual share. A purchaser from such a co-owner does not acquire a valid title over the entire property. Karnataka High Court.
Mohammedan Law. ‘A living person has no heir’. Partition of property among heirs is only possible upon the death of the owner. A living person cannot effect a ‘partition’ of his property with his heirs, as no one is an heir to a living person. Karnataka High Court.
The right of pre-emption under Mahomedan Law requires strict and literal compliance with the dual formalities of Talab-i-Mowasibat and Talab-i-Ishhad. A co-sharer who remains in joint possession and asserts their demand immediately upon the knowledge of a sale to a stranger, while invoking witnesses and offering the same price paid by the stranger, is entitled to a decree of pre-emption. Karnataka High Court.
Suit for declaration. A mere misdescription of a property, such as a wrong survey number in a title deed or a compromise decree, will not vitiate a transaction or negate ownership if the identity of the property is otherwise established by the evidence on record, including boundaries and the clear intent of the parties. Karnataka High Court.
A person who enters upon a property as an agent, caretaker, or agricultural laborer cannot assert ownership against the true owner. Such possession is ‘permissive’ in nature and remains the constructive possession of the owner. Karnataka High Court.
Order 23 Rule 1(3) CPC. The discretionary power to permit withdrawal of a suit with liberty to file a fresh suit cannot be invoked where the alleged ‘formal defect’ relates to a mere imperfection in the pleadings which can be cured by way of an amendment to the plaint. Karnataka High Court.
In a suit for cancellation of a sale deed where the deed itself reflects the property’s value, the court fee must be paid ad valorem on that stated value. Valuation based on land assessment applies only when no material exists to determine market value. Karnataka High Court.
Karnataka Excise (General Condition of Licences) Rules. A legal heir can claim transfer of an excise licence only if the licence was valid and subsisting on the date of the original licence holder’s death. A lapsed or expired licence cannot be revived through renewal to create such a right. Karnataka High Court.
Land Acqusition Act. A final notification is unsustainable if the State Government fails to duly consider the report submitted by the Special Land Acquisition Officer under Section 5A(2) and the objections filed by the landowners. The preliminary notification may remain valid, allowing the State to restart the acquisition process from the stage of Section 5A. Karnataka High Court.
‘Criminal Law. Investigation agencies dishing out charge sheet under public pressure only to quench and quell the public angst resuling in perfunctory and lopsided investigation requires introspection’. Karnataka High Court, while acquitting the accused in tripple muder case.
Title in immovable property cannot be created solely through a ‘varadhi’ (report) or revenue entries. The presumption of truth attached to revenue entries is rebuttable and can be nullified by producing valid, legally acceptable evidence, such as a deed of sale. Karnataka High Court.
A will bequeathing property for which occupancy rights were granted under the Karnataka Land Reforms Act is deemed to be an ‘alienation’ and is invalid if it violates a statutory condition of non-alienation attached to the grant of those rights. The property vests with the State Government free from all encumbrances. Karnataka High Court.
Karnataka Land Reforms Act. Married daughters are entitled to share in tenanted lands for which occupancy rights were granted to their father, as the grant benefits all legal heirs. The definition of word ‘family’ in Section 2 (12) would not be a bar to claim share in the said property. Karnataka High Court.
‘’Doctrine of lost grant’’ is a legal fiction developed to confer title by prescription, even when a right cannot be established through immemorial use. The presumption of a lost grant is not absolute unless the right originated legally, was exercised openly and peacefully, and was valid and enforceable against all. Karnataka High Court.
If a vendor refuses to register a sale deed that has already been executed, the appropriate remedy is to seek registration under the Registration Act. A suit for specific performance seeking such relief is not maintainable. Karnataka High Court.
The burden to prove that a Will was properly executed, including the testator’s signature as required lies fully on the person who relies on the Will. While appellate court can adjust relief to account for later developments to ensure justice, it will not accept late efforts to bring in additional evidence unless it is backed by necessary foundational material. Karnataka High Court.
Daksha Legal 