Justice Jayant Banerji and Justice Tara Vitasta Ganju of the Karnataka High Court have ruled that flat owners can’t claim exclusive rights over common amenities like the clubhouse, roads, pathways and entrance and exit gates if their registered sale deeds permit residents of another project developed by the same builder to share those amenities.
On this ground, the Karnataka High Court at Bengaluru dismissed an appeal from two flat owners who were worried about their neighbouring housing society residents using their common facilities.
Additionally, the court rejected the flat owners’ argument about Section 11 of the Transfer of Property Act. The flat owners argued that their sale deed gave them exclusive rights to their flat, making any clause about sharing amenities with another housing society invalid.
The high court said that the flat owners didn’t receive an exclusive proprietary interest in the common amenities as their exclusivity was restricted to the ownership of their flats, leaving the clubhouse, roads and other facilities as common amenities to be shared. Therefore, the court concluded that there was no absolute interest in those common amenities that Section 11 could apply to.
Keep reading to understand why the flat owners lost the case.
What led to this dispute about shared common amenities?
The dispute arose from the sharing of clubhouse, roads, pathways, entrance and exit gates and other common amenities between the two adjacent real estate projects namely Arya Hamsa and Arya Hamsa Grande. Both of these projects were built by the same builder with the Arya Hamsa being built first.
The builder (Arya Gruha) made these constructions on a land in Kothnur Village, Uttarahalli Hobli, of Bangalore South Taluk.
The Bruhat Bengaluru Mahanagara Palike (BBMP) approved the Arya Hamsa project and it got the occupancy certificate in 2015 which is before the enactment of the Real Estate (Regulation and Development) Act, 2016 (RERA Act).
The subsequently developed “Arya Hamsa Grande” project was built adjacent to the Arya Hamsa Project and it was registered with K-RERA and the Occupancy Certificate for it was obtained on January 31, 2019. The two projects (Hamsa and Grande) were developed under separate Joint Development Agreements with different sets of landowners and were sanctioned under separate and independent sanction plans.
As a result, both the societies, Arya Hamsa and Arya Hamsa Grande, ended up being built next to each other, with Arya Hamsa Grande residents using the common facilities of Arya Hamsa.
Feeling aggrieved, the Arya Hamsa flat owners decided to take legal action against the builder. They questioned how the builder could allow residents of Arya Hamsa Grande to use the common amenities originally made for Arya Hamsa residents. Mr Ramnarain Krishna Copparam and Mr Muniswamappa Manjunath, directors of Arya Gruha, (builder), represented the builder in court.
The complaint was filed under Section 31 of the RERA Act, seeking the cancellation of registration granted to Arya Hamsa Grande and imposition of penalty under Sections 60 and 61 of the RERA Act for violation of Sections 4 and 14 of the RERA Act.
The Arya Hamsa flat owners argued that since both the projects (Arya Hamsa and Arya Hamsa Grande) are separate and yet share common facilities like Club House, roads, pathways, entrance and exit gates, originally designed for limited use, it infringed upon the appellants/allottees’ rights to enjoy their properties peacefully.
The Arya Hamsa flat owners lost the case both in the Karnataka RERA and the Karnataka RERA Appellate Tribunal. This led the Arya Hamsa flat owners to appeal to the Karnataka High Court. On July 9, 2026 Arya Hamsa flat owners who filed this case lost it in high court.
Why did the Arya Hamsa flat owners who filed this case lose it?
Subrata Mukherjee, Partner, SNG & Partners, a law firm, said to ET Wealth Online that the flat owners were unsuccessful as their contentions were not sustainable in view of the registered Sale Deed and the nature of the interest claimed by them.
Mukherjee explains why the Hon’ble Karnataka High Court rejected their contentions:
1. Section 11 of the Transfer of Property Act, 1882 – No absolute interest
The appellants (Arya Hamsa flat owners) contended that the restriction permitting other project/phase owners to use the common amenities was contrary to Section 11 of the Transfer of Property Act. The High Court rejected this contention, holding that Section 11 is not applicable to the case.
The Karnataka High Court has observed as follows “The interested Allottees had no exclusive rights over the common areas. The only sharing that is envisaged is with respect to facilities available in the common areas such as roads, club house and entertainment facility in any phase by any of the owners of units in the Project. The interest that is being referred to by the Allottees is not created on the flat that has been allotted to them, but on the common facilities such as the club house and other easementary facilities as provided to the Allottees by the Respondents. Since such an interest is not an absolute interest and would not attract the provisions of Section 11 of the T.P Act”.
2. Section 29 of the Indian Contract Act, 1872 – No uncertainty
The appellants (Arya Hamsa flat owners) also argued that the clauses permitting shared use of the amenities were void for uncertainty under Section 29 of the Indian Contract Act. The Hon’ble High Court rejected the argument, observing that “This provision would be inapplicable in a case where a Sale Deed clearly sets out the sale consideration and the transfer and has been duly registered. In any event and as stated above, the Sale Deed has not been challenged in a Civil Court by the Allottees.”
3. Express Clause in the Registered Sale Deed – Decisive factor
The registered Sale Deed dated November 3, 2015 was central to the Karnataka High Court’s decision. It expressly contemplated the use of identified common amenities—including roads, the Club House and Entertainment Facility—by owners of units in different phases. Having consciously agreed to these terms, the appellants could not subsequently assert an exclusive right inconsistent with the covenant contained in their own registered Sale Deed.
According to Mukherjee, the flat owners did not lose merely because the amenities were shared with another project; they lost because their registered Sale Deed expressly permitted such sharing. The high court also noted that the Sale Deed had not been challenged by the flat owners before a Civil Court.
Mukherjee says: "Accordingly, the high court treated the express terms of the registered Sale Deed as decisive in determining the nature and extent of their rights over the common amenities."
Karnataka High Court order discussion
A summary of the judgement is as follows:
Arya Hamsa’s sale deed created exclusive right for the flats, not the common amenities
The Karnataka High Court said that the Supreme Court in the case of Indu Kakkar v. Haryana State Industrial Development Corpn. Ltd. ((1999) 2 SCC 37), while interpreting this provision has held that Section 11 of the Transfer of Property Act voids restrictions on enjoyment only if the transfer creates an absolute interest in favour of the transferee.
In the present case, the high court explained the provision would be inapplicable as the interested allottees (Arya Hamsa) had no exclusive rights over the common areas. The only sharing that is envisaged is with respect to facilities available in the common areas such as roads, club house and entertainment facility in any phase by any of the owners of units in the project.
The high court explained that the interest being referred to by the allottees (Arya Hamsa) is not created on the flat that has been allotted to them, but on the common facilities such as the club house and other elementary facilities as provided to the allottees by the respondents (Arya Gruha, builder).
The high court said: “Since such an interest is not an absolute interest, it would not attract the provisions of Section 11 of the T.P Act.”
Arya Hamsa flat owners did not challenge the sale deed which mentioned sharing of common amenities
The high court observed that the Arya Hamsa allottees themselves had agreed to the sharing of the facilities in the sale deed, which is a validly executed contract and is binding on the parties. The registered sale deed was not challenged by the allottees of Arya Hamsa in any court of law.
Both the Karnataka RERA Authority as well as the Karnataka RERA Appellate Tribunal after examining this contention found that the Arya Hamsa allottees have agreed to sharing of the facilities in the sale deed.
Arya Hamsa flat owners argued about uncertainty in sale deed but high court rejected it
Section 29 of the Contract Act provides that certain agreements would be void because of uncertainty. Section 29 of the Indian Contract Act applies where a contract is so vague or uncertain that the parties' obligations cannot be determined.
The high court found the contention of the counsel for the appellants/allottees of Arya Hamsa that the sale deed is void due to ‘uncertainty’ in terms of Section 29 of the Contract Act, without any merit.
The high court explained that Section 29 provision would be inapplicable when a sale deed clearly sets out the sale consideration and the transfer and has been duly registered.
The Karnataka High Court said: “In any event and as stated above, the Sale Deed has not been challenged in a Civil Court by the allottees (Arya Hamsa).”
Thus on these grounds, the high court rejected the Arya Hamsa flat owners' appeal. Thus, until they appeal again or file a case challenging the sale deed itself, they need to share their common amenities with residents of Arya Hamsa Grande.
