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Government denying my right to transfer of property bequeathed from my grandfather

Shivendra Pratap Singh

Advocate

04/03/2019

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Sir, my great grandfather, had taken a lease from the government and he erected a house over it. We have to reside in the same home since from the beginning. No question has been raised by the government when I bequeathed this land along with the house from my father. My father has died in the year 1978. Now I have sold this house to my friend and got registration in his name by sale deed.

No objection was raised by the government. Now I received a notice from the government to vacate the land and compensation for the house erected by my great grandfather. The government wants to resume this property on the basis that it was granted to my great grandfather. What is the remedy available to me?

Question from: Uttrakhand

It is not your ancestral property because the government granted it to your great grandfather. It was neither purchased nor bequeathed by your great grandfather. When the government gives a property on specific terms, conditions or limitations then it is governed by the said conditions. Your great grandfather was a licensee, and he had no right to transfer this property to any person by way of gift, sale or exchange.

If such property is, later on, declared or made freehold in favour of the licensee, then its nature has been changed. Now licensee becomes an owner of the property. In your case, it is not clear that it is made freehold or not. It would be best if you made some inquire from the revenue department regarding the freehold of this property. If it is not declared as freehold, then you have no transferable right in respect of this property.

There is a maxim in law, i.e. Nemo dat quod non habet it means  “no one gives what he doesn’t have”. If your great grandfather was a mere licensee, then he could not bequeath ownership to his descendants. When the property was bequeathed on your grandfather, he holds this property as a licensee. Therefore you have also held this property as a licensee.

In Azim Ahmad Kazmi v. State of U.P. [(2012) 7 SCC 278], the Supreme Court has held that the government grant of a lease of land is governed entirely by the terms of the grant. The Court took note of Section 3 of the Government Grants Act, 1895 which is to take effect according to its tenor notwithstanding any other law to the contrary.

In Chief Executive Officer v. Surendra Kumar Vakil[(1999) 3 SCC 555] , the Supreme Court has held that the grantee under the old grant terms is a mere occupier/licensee having no title over the land so as to entitle him to transfer the land to another person without prior consent of the authorities concerned.

Hence, you had no right to transfer this property by way of sale to any person. The government has the right to resume this property whenever it seems a requirement for any purpose because the government is the original owner of this property. You are a lessee. Therefore, you have no right to transfer this property until it is made freehold in your favour.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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