When cancellation may be ordered – Section 31 | Specific Relief Act

“Two kinds of benami transactions are generally recognised in In­dia. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the trans­feree holds the property for the benefit of the person who has con­tributed the purchase-money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention, of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase-money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance.”

2. Distinction between:

Though most of the present day Hindu pub­lic temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either be­cause of the eminence of its founder or because of other circumstances.

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They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case, the temple would clearly be a public temple.

If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases, the true character of the particular temples is decided on the basis of various cir­cumstances. In those cases the Courts have to address themselves to vari­ous questions such as:

(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?

(2) Are the members of the public entitled to worship in that temple as of right?

(3) Are the temple’s expenses met from the contributions made by the public?

(4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples?

(5) Have the management as well as the devotees been treating that temple as a public temple.”

4. Person—Scope of:

The word ‘person’ in Section 31 of the Specific Relief Act is wide enough to encompass person seeking derivate title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree of contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first become known to him. Admittedly, the suit was filed in 1981 beyond three years from the date of knowledge thereby the suit is hope­lessly barred by limitation. The decree of the appellate Court and the order of the High Court, therefore, are not illegal warranting interference.

4. Validity of:

Sale deed executed as a sham document without any intention to be acted upon and without any consideration, out of dissatis­faction for the son. Sale deed continues to be in possession of vendor is invalid.

5. Suit for specific performance:

The judgments reported in Jagdeo Singh and others vs. Bisambhar and others (supra) and Smt. Hirmala Bala Dasi and another vs. Sudarsan Jana and others (supra) permit one or more co-contractors to file a suit seeking specific performance. There cannot be any debate over this proposition. The present respondents 1 and 2 were and are co-contractors with deceased appellant No. 1 and his wife insofar as the fresh agreement dated 20-12-1981 is concerned and accord­ingly they filed suit for specific performance, after realising that the vendors have not abided by the said agreement and have executed sale deed dated 19-1 1-1982 in favour of deceased-appellant No. 1 and his wife. I, therefore, find that the suit for specific performance filed by the present respondents 1 and 2 cannot be said to be improper. In view of provisions of either sections 15 or section 31, on the basis of sale deed dated 19-11-1982 obtained by the deceased appellant No. 1 and his wife, they cannot con­tend that they have established title and interest in immovable property. It is therefore apparent that the rights of present appellants to seek specific performance of agreement under section 15 of the Specific Relief Act flow­ing from agreement dated 5-12-1980 was extinguished because of subse­quent agreement and in any case, the sale deed in their favour was void­able. I, therefore, find that in view of section 31 of the Specific Relief Act, the present respondents 1 and 2 were entitled to seek relief of declaration of cancellation of the said sale deed.