Skip to main content

Principal of Custodia Legis or In the custody of the law explained

In Haji Hanif Hakam Vs. Debt Recovery Appellate Tribunal at Kolkata & Ors., the plaintiff being assignee of the residue of the unexpired period of the leasehold interest in the suit property submitted that Joint Receivers were appointed by the Hon’ble High Court for taking actual physical possession of the suit property and the suit premise is, therefore, custodia legis. The third respondent is aware of such possession by the Joint Receivers yet without obtaining the leave of the Court appointing the Joint Receivers, had filed a proceeding RDDB Act. Subsequently the suit property was put up for sale and sold by the Recovery Officer and therefore the sale is illegal, null and void.

The third respondent submitted that the Joint Receivers are not in actual physical possession of the immovable property. Although, the initial order was for actual physical possession, the same was later modified to mean that the Receivers will take constructive possession. Therefore, it cannot be said that, the Receivers are in actual physical possession of the suit property. He has relied upon 1996 Volume 11 Supreme Court Cases page 376 (Anthony C. Leo v. Nandlal Bal Krishnan & Ors.) and 2002 Volume 2 Calcutta High Court Notes page 522 (Bengal Peerless Housing Development Co. Ltd. v. Gopeswar Prasad Agarwal & Ors.) for the proposition that, when the Receiver is not in an actual physical possession, then, the dealings with regard to an immovable property cannot be struck down on the ground of the breach of the principles of custodia legis.

The Calcutta High Court held that the Division Bench in Bengal Peerless Housing Development Co. Ltd. (supra) has considered Kanhaiyalal (supra) as well as Anthony C. Leo (supra).

Court appointing a Receiver over a property to take actual physical possession thereof becomes custodia legis of such property. However, appointment of a Receiver does not mean that the property vests in the Receiver or the Court, even pendente lite. A person claiming any paramount right in respect of the property has to obtain the leave of the Court in custodia legis to establish such right. Such leave is required when the Court has appointed a Receiver to take physical possession of the property. A proceeding initiated without the leave of Court appointing the Receiver, when the Receiver is not in physical possession of the property, does not stand vitiated by absence of leave.

Comments

Post a Comment

Most viewed this month

Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title :  Bhagwant Singh vs  Financial Commissioner (Appeals) Punjab, Chandigarh,  CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh Date of Judgment/Order : 31.08.2022 Corum : Hon’ble Mr. Justice Sudhir Mittal Background A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings h...
Post a Comment
Read more

Power of Attorney holder can also file cheque bounce cases: Supreme Court

The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant. A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court. "We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said. The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner: "Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal...
1 comment
Read more

Christian who reconverts as Hindu SC will get quota benefits

Amid the controversy over “ghar wapsi”, the Supreme Court on Thursday ruled that a person who “reconverts” from Christianity to Hinduism shall be entitled to reservation benefits if his forefathers belonged to a Scheduled Caste and the community accepts him after “reconversion”. Citing articles by B R Ambedkar and James Massey, and reports by Mandal Commission and Chinappa Commission, the court said: “There has been detailed study to indicate the Scheduled Caste persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.” The bench of Justices Dipak Misra and V Gopala Gowda held that a person shall not be deprived of reservation benefits if he decides to “reconvert” to Hinduism and adopts the caste that his forefathers originally belonged to just because he was born to Christian parents or has a Christian spouse. Expanding the scope of a previous Constitution benc...
1 comment
Read more