Case Note & Summary
The appellants, who are flat purchasers in a building, filed a suit seeking a declaration that a Deed of Conveyance dated 25th October 2004 executed between the original defendant No.1 (Nilkanth Ganesh Pethe) and original defendant No.3 (Pooja and Poonam Builders) in respect of a plot of land is illegal, bad in law, and not binding on them. They also sought a permanent injunction restraining the defendants from utilizing the conveyance deed. The learned Single Judge dismissed their Notice of Motion, leading to this appeal. The court considered whether the appellants have any right to challenge the conveyance deed. The court held that the appellants, as flat purchasers, have no privity of contract with the original owner and cannot question the vendor's title. The suit lacks a cause of action as the appellants have no right to seek such a declaration. The appeal was dismissed, affirming the order of the Single Judge.
Headnote
A) Property Law - Conveyance Deed - Right to Challenge - Transfer of Property Act, 1882 - Flat purchasers cannot challenge a conveyance deed executed by the original owner in favor of a developer as they have no right to question the vendor's title. The court held that the appellants, being purchasers of flats, have no privity of contract with the original owner and cannot seek to declare the conveyance deed illegal. (Paras 3-5)
B) Civil Procedure - Maintainability of Suit - Lack of Cause of Action - Code of Civil Procedure, 1908 - The suit for declaration that the conveyance deed is illegal and not binding is not maintainable as the appellants have no right to challenge the deed. The court held that the appellants failed to establish any right or interest that would entitle them to question the conveyance. (Paras 3-5)
Issue of Consideration
Whether the appellants, as flat purchasers, have a right to challenge the conveyance deed executed by the original owner in favor of a developer.
Final Decision
The appeal is dismissed. The order of the learned Single Judge dated 16th April 2009 dismissing the Notice of Motion is affirmed.
Law Points
- Flat purchasers cannot challenge vendor's title
- conveyance deed binding on parties
- no privity of contract
- no right to question title
- specific performance not sought
Case Details
2010 LawText (BOM) (03) 46
APPEAL NO.342 OF 2009 IN NOTICE OF MOTION NO.2691 OF 2008 IN SUIT NO.2314 OF 2008
Anil R. Dave, C.J., S.C. Dharmadhikari, J.
Mr. S.U. Kamdar, Senior Advocate with Mr. S.J. Ghogre for the appellants; Mr. Virag Tulzapurkar, Senior Advocate with Mr. Sanjay Jain, Mr. Rajmani Varma and Mr. Navdeep Vora i/by M/s. Navdeep Vora & Associates for the respondents
Shailaja Kamalakar Limaye and others
Nilkanth Ganesh Pethe and others
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Nature of Litigation
Civil suit seeking declaration that a conveyance deed is illegal and not binding on the plaintiffs, and for permanent injunction.
Remedy Sought
Appellants (original plaintiffs) sought a declaration that the Deed of Conveyance dated 25th October 2004 is illegal, bad in law, and not binding on them, and a permanent injunction restraining the defendants from utilizing the deed.
Filing Reason
The appellants, who are flat purchasers, challenged the conveyance deed executed between the original owner and a developer, claiming it was illegal.
Previous Decisions
The learned Single Judge dismissed the appellants' Notice of Motion on 16th April 2009.
Issues
Whether the appellants have a right to challenge the conveyance deed executed by the original owner in favor of a developer.
Submissions/Arguments
Appellants argued that the conveyance deed is illegal and not binding on them.
Respondents contended that the appellants have no right to challenge the deed as they are not parties to it.
Ratio Decidendi
Flat purchasers have no right to challenge a conveyance deed executed by the original owner in favor of a developer as they have no privity of contract or interest in the title of the vendor.
Judgment Excerpts
The appellants filed a suit in this court being Suit No.2314 of 2008 against the original defendants for a declaration that the Deed of Conveyance dated 25th October, 2004 executed between the original defendant No.1 and original defendant No.3 in respect of a plot of land No.442, TPS IV, Mahim Division, Mumbai is illegal, bad in law and not binding on the plaintiffs.
Procedural History
The appellants filed Suit No.2314 of 2008 in the Bombay High Court. They took out Notice of Motion No.2691 of 2008, which was dismissed by the learned Single Judge on 16th April 2009. The appellants then filed the present appeal under clause 15 of the Letters Patent.
Acts & Sections
- Transfer of Property Act, 1882:
- Code of Civil Procedure, 1908:
