The SC on August 13, 2021 {KRISHNA GOPAL TIWARY & ANR. vs. UNION OF INDIA & ORS.} held that a distinction exists between a mortgage by way of conditional sale and a sale with condition to repurchase. It was held that in the former the debt subsists and a right to redeem remains with the debtor but in case of the latter, the transaction does not evidence an arrangement of lending and borrowing, thus, right to redeem is not reserved.
It was held by the Bench, comprising of Justice HEMANT GUPTA & Justice A S BOPANNA that a reading of the document in the present case would show that the document was executed for the reason that the plaintiff has borrowed a sum of Rs.3,000/- for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year. It was held that the advance of loan and return thereof are part of the same document which creates a relationship of debtor and creditor. Thus, it would be covered by proviso in Section 58(c) of the Transfer of Property Act.
The SC also held that under Section 63(a) of the T.P. Act, the liability of mortgagor to pay for improvement will arise if the mortgagee had to incur the costs to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient or being made in compliance with the lawful order of any public servant or public authority. It was held that none of the eventualities arose in the present case compelling the mortgagor to pay for the improvements if any carried out by the mortgagee.
It was held that since the possession was given to the mortgagee, he has enjoyed usufruct from the mortgage property which compensates not only of the user of the land but also improvements made by him. It was held that the improvements were to enjoy the usufruct of the property mortgaged.
The SC further held that argument that plaintiff has filed suit for redemption after 20 years of execution of the document is not tenable as the suit for redemption can be filed within 30 years from the date fixed for redemption. It was held that the period of 30 years would commence on 22.2.1969 and the suit was filed in the year 1989, which is within the period of limitation.
In view thereof, the order of the First Appellate Court accepting the appeal of the defendants and dismissing the suit for redemption and so as the order passed by the High Court were set aside and the suit was decreed by the SC. It was directed that the plaintiff may pay or deposit the mortgage amount within three months of the receipt of copy of the order. The appeal was allowed by the SC.
]]>The SC on Aug 09, 2021 {Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors} held that Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. It was held that in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. It was also held that the Court while deciding such an application must have due regard only to the statements in the plaint. It was held that whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
It was held by the Bench, comprising of Justice Dr. Dhananjaya Y. Chandrachud & Justice M.R. Shah that to determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.
The SC held that since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.
It was held that it is relevant to note in the present lis that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007. Thus, it was held that the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, it was held that the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. It was held that the High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. It was held by the SC that an application under Order 7 Rule 11 must be decided within the four corners of the plaint. It was held that the Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d).
For the above reasons, the SC held that the plaint was not liable to be rejected under Order 7 Rule 11(d) and affirmed the findings of the Trial Court and the High Court. The court granted liberty to the appellant, who claims as an assignee of the bona fide purchaser of the suit property in an auction conducted by KSFC, to raise an issue of the maintainability of the suit before the Additional Civil Judge, Belgaum in OS No. 138/2008. It was directed that the Additional Civil Judge, Belgaum shall consider whether a preliminary issue should be framed under Order XIV, and if so, decide it within a period of 3 months of raising the preliminary issue. It was also directed that in any event, the suit shall be finally adjudicated upon within the outer limit of 31 March 2022.
The Supreme Court dismissed the appeal and affirmed the impugned judgment and order of the High Court dated 18 January 2021. Consequently, the application under Order 7 Rule 11 of the CPC stood dismissed.
]]>The SC on July 20, 2021 {Sayyed Ayaz Ali vs.Prakash G Goyal & Ors.} held that the definition of “decree” in Section 2(2) “shall be deemed to include the rejection of a plaint”. It was held that the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. It was held that the writ petition filed by the appellant was not maintainable and was liable to be rejected.
It was held by the Bench, comprising of Justice Dr. Dhananjaya Y. Chandrachud & Justice M.R. Shah that the High Court while exercising its revisional jurisdiction rightly accepted the plea of the first and second defendants that the Trial Judge, having allowed the application Order 7 Rule 11(d), was not justified in granting to the appellant-plaintiff liberty to amend the plaint by seeking appropriate reliefs and paying the court fee.
It was held by the SC that since the dismissal of the writ petition has been upheld on the ground that the order rejecting the plaint operates as a decree within the meaning of Section 2(2) of the CPC, the appellant is at liberty to take recourse to the remedy against the rejection of the plaint as prescribed by the CPC.
The SC therefore affirmed the judgment of the High Court rejecting the writ petition, however left it open to the appellant to pursue the remedy available in law.
The appeals were disposed of in the above terms by the SC.
]]>The SC on July 16, 2021 {K.P. NATARAJAN & ANR. vs MUTHALAMMAL & ORS.} held that while the parties can afford to remain negligent, the Court cannot. It was held that the High Court has found, after summoning the records from the trial Court that as a matter of fact, the trial Court failed to appoint a guardian for the third respondent/minor in a manner prescribed by law. It was held that the manner in which the trial Court disposed of the application under Order XXXII, Rule 3, is without doubt, improper and cannot at all be sustained, especially in the teeth of the Madras Amendment.
It was held by the SC Bench, comprising of Justice Indira Banerjee & Justice V. Ramasubramanian, that the learned Judge summoned the records from the trial Court after entertaining a doubt about the procedure followed by the trial Court in this case and found as a matter of fact that the trial Court failed to appoint a guardian for the third defendant as required by Order XXXII, Rule 3 CPC. It was held that the power of the learned Judge to call for the records and examine the same, in a revision under Section 115(1) of the Code is not and cannot be doubted or questioned by the petitioners. It was held by the SC that it is true that the learned Judge was dealing only with a revision petition arising out of an Order dismissing a petition under Section 5 of the Limitation Act, 1963. It was however held that but it does not take away or curtail the jurisdiction of the High Court to look into the records with particular reference to an important rule of procedure, especially when the same relates to something concerning persons under disability.
The facts of the present case before the SC were, a Civil Revision Petition was filed under Section 115 of the Code of Civil Procedure, 1908 (for short “the Code”), challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an exparte decree for specific performance, however the High Court found that the exparte decree was a nullity, as it was passed against a minor without the minor being represented by a guardian duly appointed in terms under Order XXXII, Rule 3 of the Code. Therefore, the High Court, exercising its power of superintendence under Article 227 of the Constitution, set aside the exparte decree itself on condition that the petitioners before the High Court/defendants pay a sum of Rs. 2,50,000/- representing the amount already spent by the decree holders in purchasing stamp paper etc. Aggrieved by the said order of the High Court, the decree holders were before the SC in this special leave petition.
The SC held that the contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the exparte decree itself, by invoking the power under Article 227, does not appeal to it. It was held that it is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code.
It was held by the SC that the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in Order XXXII, Rule 3, even in the absence of a specific contention being raised by the petitioners, was proper and as per law.
Therefore, the SC found no illegality in the order of the High Court warranting its interference under Article 136. Hence, this Special Leave Petition was dismissed by the SC.
]]>The SC on June 30, 2021 {R. JANAKIAMMAL vs. S.K. KUMARASAMY (DECEASED)} held that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question.
It was also observed by the Bench, comprising of Justice Ashok Bhushan and Justice R. Subhash Reddy that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. It was held that Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings.
In the present case, the Supreme Court did not find any error in the judgment of trial court and High Court holding that Suit was barred under Order XXIII Rule 3A CPC.
However, it was held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct.
REUNION IN HINDU LAW
The Supreme Court held that the concept of reunion in Hindu Law is well known. It was further held that Hindu Joint Family even if partitioned can revert back and reunite to continue the status of joint family. It was held that the acts of the parties may lead to the inference that parties reunited after previous partition.
It was observed in present case by the SC that it is the case of the defendant No.1 that the compromise decree dated 06.08.1984 is nothing but implementation of agreement dated 08.03.1981. It was held that it is, thus, clear that the case of D1 is that there was partition of all properties standing in the names of three branches and allocated to different branches on 08.03.1981, which has been subsequently implemented by consent decree dated 06.08.1984. The SC held that when the D1 comes with the case that there was partition on 08.03.1981 of all immovable properties standing in the names of three branches, which was implemented on 06.08.1984, the conclusion is irresistible that family was joint and had the three branches were not part of joint Hindu family, there was no occasion for attempting any partition on 08.03.1981 as claimed by D1. It was held that the fact that defendant No.1 is coming with the case that there was partition on 18.03.1981 itself proves that three branches were joint till then as per case of D1 himself.
Thus, the SC held that in the year 1979 when residential property of Tatabad was obtained in the name of defendant No.1, all three branches were part of the joint Hindu family and the house property purchased in the name of one member of joint Hindu family was for the benefit of all. It was held by the SC that both the Courts below although accepted the partition dated 18.03.1981 as pleaded by D1 but erred in not considering the consequence of such pleading. It was held that when partition of all immovable and movable properties is claimed on 08.03.1981, the conclusion is irresistible that the family was joined till then. It was also held that the theory set up by D1 that all the three branches were separate after 07.11.1960 is denied/belied by claim of partition on 08.03.1981.
The SC further held that Tatabad residential property was for the benefit of all the three branches which is further proved from the fact that the consideration for the said amount was not paid by DW1 from his separate account or in cash. It was held that the amount was drawn from the private limited company Swamy and Swamy Plantation Private Limited in which all the three branches were shareholders and Directors. It was held that the Swamy and Swamy Plantation Company had not purchased the residential property at Tatabad for the company. It was further held that the Swamy and Swamy plantation private company is not the owner of the residential property and the residential property at Tatabad is a joint family property for the benefit of all the three branches.
The SC thus concluded that all three branches have equal share in the Tatabad residential property and this residential property being not a part of O.S.No.37 of 1984 (in which compromise decree was passed), there is no bar in seeking partition of the said property by the plaintiff. Accordingly the SC declared that plaintiff/defendant No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share in the suit property, and the appeals as such were partly allowed.
]]>The SC on October 13, 2020 {RAGHUNATH (D) BY LRS. vs RADHA MOHAN (D) THR. LRS & ORS.} held that the historical perspective of the right of pre-emption shows that it owes its originination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India. It was held that the pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. It was held that the pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right. It was held that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.
It was held by the Bench, comprising of Justice Sanjay Kishan Kaul, Justice Aniruddha Bose & Justice Krishna Murari, that it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. It was held that the loss of right mandated under Section 9 of the Act is absolute. It was also held that a plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. It was held that to do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right. It was held that this would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co-sharer will jump into the scene.
The singular question was framed for consideration in this appeal by the SC i.e. whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in the present proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions had taken place in the past involving the subject immovable property in the years 1945, 1946 and 1966.
The SC held that such a right is available once - whether to take it or leave it to a person having a right of pre-emption. It was held that if such person finds it is not worth once, it is not an open right available for all times to come to that person. It was held that this would itself be an impediment in exercise of the right of preemption in a subsequent transaction. It was held that these provisions may not impede the right of pre-emption in that particular transaction by a particular pre-emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre-emptor.
The question was whether this right of substitution can be exercised recurringly or only once. It was held by the SC that answer to the query is ‘only once’.
It was held that the dilemma, i.e. whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time. It was held that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. It was held that Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. It was held that what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades.
Resultantly, the impugned order was set aside by the SC and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 were upheld. It was held that as the original plaintiff has not challenged the sale effected by him on 5th November, 1966, the suit of respondent No. 1 (original plaintiff, now represented by his legal representatives) is thus barred by limitation. It was held that this puts an end to the legal battle which began 45 years ago.
The appeal, was accordingly, allowed.
]]>The SC on August 14, 2020 {M.C. MEHTA vs. UNION OF INDIA & ORS.} held that no doubt that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It was held that it cannot exceed its powers and take any action beyond its authorization by the court.
The SC Bench, comprising of Justice Arun Mishra, Justice B.R. Gavai & Justice Krishna Murari further held that it is apparent from the various orders passed by the Court from time to time and from the various reports of the Monitoring Committee that it was never authorized by the Court to take action against the residential premises that were not being used for commercial purposes. It was held that it was appointed only to check the misuser of the residential properties for commercial purposes. It was also held that after that, the Court directed that the Monitoring Committee should also look into the matter of “encroachment on the public land” and “unauthorized colonies” that have come up on the public land and were wholly unauthorized without sanction. It was held that at no point in time, this Court had empowered the Monitoring Committee to act visàvis to the purely residential premises.
The SC in present order only dealt with the authority of the “Monitoring Committee to seal the residential premises on the private land” particularly when they are not being used for the “commercial purpose”. Whether the Monitoring Committee could have sealed these residential premises was the only question which was examined in this order by the SC.
The Court held that power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. It was held that the Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. It was held that if there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It was held that it would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. It was held that the Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No.149, nor it could have directed the demolition of those residential properties.
The SC also held that Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law. It was held that when the statute prescribes a mode, the property's deprivation cannot be done in other modes since the Court did not authorize the Committee to take action in the matter. It was held that an action could have been taken in no other manner except in accordance with the procedure prescribed by law as laid down in the decisions of the Court.
It was held that it is quite apparent that particularly when the Monitoring Committee is not empowered to take action, the incumbents could not have been deprived of the due process of protection in accordance with law. It was held that as against the action of the Monitoring Committee, no appeal lies elsewhere. It was held that even High Court is not authorized to entertain any matter and scrutinize its action, such is the drastic step taken by the Court by way of an exceptional measure in public interest, and it is confined to the misuse of residential property for commercial purpose and encroachments and unauthorized construction on the public land, roads.
It was held that the report of the Monitoring Committee and findings recorded by it are of no use as it had no such authority to go into the various questions. It was held that the Court did not appoint the Monitoring Committee concerning each and every residential building on private land not misused for commercial purposes and to deal with the same. It was held that in the present matter, the Court itself is monitoring the matter for a limited public purpose. It was held that it has not taken away the powers of statutory authorities under the Act concerning other matters except specified in the order.
Accordingly, the SC quashed Report No.149 and other reports submitted subsequently in connection with Report No.149 and entire action of sealing pursuant thereto. The Court also quashed notices issued directing demolition and held that the Monitoring Committee had no power to look into the matter and to take any action. It was directed that the property sealed as per Report No.149 be desealed, and possession be restored to the owners forthwith, i.e. within three days.
However, the SC clarified that this order does not at all mean to belittle the yeomen service done by the Monitoring Committee for protection of Delhi.
]]>The SC on August 7, 2020 {HARI KRISHNA MANDIR TRUST vs STATE OF MAHARASHTRA AND OTHERS} held that the Appellant cannot be deprived of the subject strip of land being the private road without authority of law, as this would be a violation of Article 300-A of the Constitution of India, which prohibits deprivation of person from property without authority of law.
It was held by the SC Bench, comprising of Justice Indira Banerjee & Justice Indu Malhotra, that the Municipal Corporation was never shown as owner of the vacant plot or of any private road. It was held that even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. It was held on the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator.
The SC held that the finding of the High Court that it was never the case of the petitioner that the land had not vested, is misconceived. It was held that first of all there does not appear to be any admission of vesting on the part of the Appellant Trust. It was held that in any case land can only vest in accordance with law. It was held that if the land has not vested, a mistaken admission would make no difference, for there can be no estoppel against the Constitution of India, or any statute.
The SC held that the right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by the Court earlier. It was held that in view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. It was held that the appellant trust cannot be deprived of its property save in accordance with law.
It was observed that it has been established beyond any iota of doubt that the private road admeasuring 414 sq. meter area had never been acquired by the Pune Municipal Corporation. It was held that the right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. It was held however, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.
It was held that in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by the Court in Wazir Chand v. State of Himachal Pradesh, AIR 1954 SC 415. It was held that admittedly, no compensation has been offered or paid to the appellant Trust. It was held that as observed by the Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka, (2011) 9 SCC 1 49, even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. It was held that the State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. It was held that the Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. It was held that statutory authorities are bound to pay adequate compensation.
The SC held that High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.
It was held that in appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.
It was held that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. It was held that in a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.
The SC concluded that in the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator. It was held that the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act.
The appeal was therefore allowed by the SC, and the Judgment and order under appeal was set aside.
]]>The SC on July 31, 2020 {Ravinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors.} held that in present case it is not possible to conclude that the High Court in exercise of its appellate jurisdiction (second appeal) had undertaken proper analysis and scrutiny of the judgment of the first appellate Court in right perspective, much less keeping in mind the limited scope of jurisdiction to entertain second appeal under Section 100 of the Code of Civil Procedure, 1908. It was held that the impugned judgment is bordering on a casual approach by the High Court in overturning the well considered decision of the first appellate Court. It was held by the SC that although the impugned judgment runs into, the manner in which it proceeds leaves it to observe that it is cryptic. On this count alone, it was held that impugned judgment does not stand the test of judicial scrutiny.
It was observed by the Bench, comprising of Justice A.M. KHANWILKAR and Justice DINESH MAHESHWARI that the first appellate Court has justly opined that the parties had acted upon the stated family settlement and to the prejudice of the other party. It was held that the property in the name of plaintiff at Prem Basti was given to Sohan Singh (original defendant No. 2), which was otherwise in possession of Mohan Singh (original defendant No. 1). Further, it was held that the plot purchased by the plaintiff in the name of his son was given to Mohan Singh (original defendant No. 1) and his wife, but that plot was admittedly sold by them to one Surjit Kaur. It was held that being a case of a family settlement between the real brothers and having been acted upon by them, it was not open to resile from the same. It was held by the SC that they were estopped from contending to the contrary. It was held that this crucial aspect has been glossed over by the High Court, the second appeal has been disposed of in a most casual manner inasmuch as, the impugned judgment of the High Court merely contains extraction of the judgment of the trial Court and first appellate Court and of the relied upon judgments (precedents).
The SC held that settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. It was held that the object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
It was held that the Court restated that a family arrangement being binding on the parties, clearly operates as an estoppel, so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same.
The SC held that established facts and circumstances in the present case clearly establish that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. It was held by the SC that finding of fact recorded by the first appellate Court being unexceptionable, it must follow that the document Exhibit P6 was merely a memorandum of a family settlement so arrived at. Resultantly, it was held it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.
In the present case, the core issue involved in the appeal before the SC was: whether the document Exhibit P6 was required to be registered as interest in immovable property worth more than Rs.100/ was transferred in favour of the plaintiff?
Considering the above, it was held by the SC that the High Court committed manifest error in interfering with and in particular reversing the well considered decision of the first appellate Court, which had justly concluded that document dated 10.3.1988 executed between the parties was merely a memorandum of settlement, and it did not require registration. It was held that it must follow that the relief claimed by the plaintiff in the suit, as granted by the first appellate Court ought not to have been interfered with by the High Court and more so, in a casual manner.
Accordingly, it was concluded by the SC that it deems it appropriate to set aside the impugned judgment and restore the judgment and decree passed by the first appellate Court in favour of the plaintiffs (appellants herein). Accordingly, the appeal was allowed. Impugned judgment and decree of the High Court was set aside. The judgment and decree passed by the first appellate Court was restored in favour of the plaintiff (appellants herein) by the SC.
]]>The SC on July 17, 2020 {V. KALYANASWAMY(D) BY LRS. & ANR. vs L. BAKTHAVATSALAM(D) BY LRS. & ORS.} held that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. It was held that in the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. It was held that he must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. It was held that this is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. It was held that the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.
It was held by the Bench, comprising of Justice K.M. Joseph & Justice Sanjay Kishan Kaul, that in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. It was held that the language of the Section is clear and unambiguous. It was held that Section 68 of the Evidence Act, as interpreted by the Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.
It was also held that the Will must be proved under the Evidence Act and not with reference to plea of estoppel. It was held that while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. It was held that the evidence of PW1 would show that the respondents have failed to prove that the will is vitiated in this regard . Therefore, it was held that the will was indeed executed by R. Naidu and was his last will.
Order II Rule 2 CPC
The SC held that be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same.
Joint Family Property & Coparcener
It was also held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. It was held that by a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.
The SC held that even under the law prior to Hindu Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. It was held that as far as joint family property is concerned, there could be three situations. The first situation is where the family remains joint in which case the coparcener would have an interest. It was held that as far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. What the SC means is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. It was held that when such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. It was held that this may or may not be accompanied simultaneously with a metes and bounds partition. It was further held that in such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. It was held that the share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It was held that it also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. It was held that this power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It was held that it cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, it was held that the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property.
It was held by the SC, however, merely causing a Notice to be published, without there being evidence to show that the intended recipient became aware of it, may not suffice. It was held that though a Notice in a newspaper is purported to serve as Notice to the general public, what is required is Notice to the concerned coparcener. It was held that there cannot be a presumption that a person has read a particular newspaper, and even more importantly, that he has read the Notice.
The SC held that in present case as there was no division brought about by V. Rangaswami Naidu before his death, the Will would be invalid and therefore it would be the end of the road for the appellants. It was held that it is to be remembered that Rangaswami Naidu died on 1.6.1955, which was before the enactment of Hindu Succession Act, 1956. Thus, it was held that when he died, he left behind an interest in the Hindu joint family. It was held that when succession opened to his estate, it is therefore, the provisions of Section 3(2) of the Hindu Women’s Right to Property Act, 1937 which apply. It was held that a limited estate in other words sprung into being in favour of R. Krishnammal, his widow. It was held that this estate would bloom under Section 14 (1) of the H.S.A. into an absolute estate. It was held that when she compromised in giving up her rights over the property which included the plaint scheduled property in these cases, it conferred absolute rights in favour of the Lakshmiah Naidu branch. It was held that the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force.
It was also held that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. It was held that if, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. It was held that such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death.
The SC concluded that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. Accordingly, the appeal stood dismissed by the SC.
]]>The SC on July 9, 2020 {DAHIBEN vs ARVINDBHAI KALYANJI BHANUSALI (GAJRA)(D) THR LRS & ORS.} held that the whole purpose of conferment of powers under Order VII Rule 11 (a) is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court.
It was held by the SC Bench, comprising of Justice L. Nageswara Rao & Justice Indu Malhotra, that the provision of Order VII Rule 11 is mandatory in nature. It was held that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. It was held that if the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
The SC however also held that the power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
The present appeal before the SC impugned Judgment and Order passed by a Division Bench of the Gujarat High Court, affirming the Order of the Trial Court, allowing the application under Order VII Rule 11(d), CPC holding that the suit filed by the Appellant and Respondent Nos. 9 to 13 herein ( referred to as the “Plaintiffs”) was barred by limitation.
The SC held that under Order VII Rule 11 CPC, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. It was held that having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). It was held that when a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
It was held that in exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
The SC held that the power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. It was held that if by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage.
It was held that the Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. It was held that Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. It was held that if a suit is not covered by any specific article, then it would fall within the residuary article.
The SC held that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued. It was held that the period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
The SC held that in present lis if the case made out in the Plaint is to be believed, it would mean that almost 99% of the sale consideration i.e. Rs.1,73,62,000 allegedly remained unpaid throughout. It was held that it is, however inconceivable that if the payments had remained unpaid, the Plaintiffs would have remained completely silent for a period of over 5 and ½ years, without even issuing a legal notice for payment of the unpaid sale consideration, or instituting any proceeding for recovery of the amount, till the filing of the present suit in December 2014.
The Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. It was held that even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. It was held that non-payment of a part of the sale price would not affect the validity of the sale. It was also held that once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground.
It was held by the SC that even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. It was held that the Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. It was held that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint was liable to be rejected under Order VII Rule 11 (a).
It was held that the delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. It was held that the suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs.
The Court held that the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed.
The SC held that the High Court rightly affirmed the findings of the Trial Court, and held that the suit was barred by limitation, since it was filed beyond the period of limitation of three years.
In view of the aforesaid discussion, the present Civil Appeal was dismissed with costs of Rs. 1,00,000/- by the SC.
]]>The SC on June 18, 2020 {SHAMITA SINGHA & ANR. vs RASHMI AHLUWALIA & ANR.} held that there is primacy of the Probate Court on the question of validity of a Will.
It was held by the Single Judge of SC, Justice Aniruddha Bose, that the outcome of the Probate proceeding would have impact on the suit for partition pending before the Delhi High Court. It was held that majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for.
In present case, the petitioner before SC in Transfer Petition u/s 25 CPC sought transfer of a suit for partition. It was the case of the petitioner that Probate Court has exclusive jurisdiction in matters relating to legality of a will and for that reason, her plea is that it would be expedient that the partition suit instituted in the Delhi High Court should be transferred to the Probate Court i.e. Bombay High Court. So far as the suit in the Delhi High Court is concerned, this has been instituted prior in time, on 18th September, 2014.
The SC held that a petition for transfer under Section 25 of the Code, is decided on consideration of the ends of justice. It was held that the “First past the post” is not the principle that can be applied in proceedings of this nature.
It was held that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well.
The SC accordingly directed that the suit filed in the Delhi High Court be transferred from the said High Court to the Bombay High Court.
]]>The SC on June 15, 2020 {THE INSPECTOR GENERAL OF REGISTRATION, TAMIL NADU AND ORS. vs K. BASKARAN} held that a statutory functionary exercising a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, as that is the ordinary mode of exercise of any administrative power. It was held that if a statutory authority empowers a delegate to undertake preparatory work, and to take an initial decision in matters entrusted to it, but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority’s own.
It was also held by the Bench, comprising of Justice UDAY UMESH LALIT and Justice INDU MALHOTRA, that a provision in a statute which is procedural in nature although employs the word “shall” may not be held to be mandatory if thereby no prejudice is caused. It was held that the determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And it was held that it has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
The appeals before the SC in present case raised common questions touching upon the interpretation of Section 47A of the Indian Stamp Act, 1899 (‘the Act’, for short) and the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968 (‘the Rules’, for short) as amended from time to time.
The SC held that the fixation of timeline of three months in Rule 7 to be purely directory. The SC held that conclusion by the High Court holding the said provision to be mandatory is set aside, and no benefit on that ground can accrue to the Respondents.
The SC further held that for exercising revisional power “suo motu” or “on its motion”, the concerned authority must be satisfied that an order has been passed by the authority or officer subordinate to it. It was held that if an infirmity or illegality is brought to the notice or knowledge of the revisional authority, through normal and regular process of reporting by the subordinate officer or authority, the power of revision can certainly be exercised.
It was held that while entertaining an appeal, if an obvious illegality is noticed by the revisional authority, it can certainly exercise suo motu power to undo the mistake, or rectify an error committed by the subordinate officer or authority, subject to such restrictions as are imposed on the exercise of the power by the statute. It was held that there is nothing in the scheme of the Act which purports to restrict the exercise of suo motu power under Section 47-A, and confines it to cases where knowledge of any illegality or infirmity in the proceedings undertaken by the subordinate officers must be gathered from sources other than through a pending appeal.
The question i.e. whether the appellate authority has power under Section 47A of the of the Indian Stamp Act, 1899 to enhance the market value of the property while deciding the appeal filed by the registrants - was answered in affirmative by the SC.
The SC held that the High Court completely erred in setting aside the exercise of power undertaken by the concerned authority. It was held that the exercise of power was definitely designed to obviate an obvious illegality and prejudice to the interest of the revenue. It was held that the exercise was, thus, absolutely correct, and there was no occasion to set aside the orders passed in pursuance thereof.
All the appeals were allowed by the SC. The order of the High Court under appeal was set aside and the orders passed by the appellate authority were restored.
]]>The SC on June 10, 2020 {BIKRAM CHATTERJI & ORS. vs. UNION OF INDIA & ORS.} directed that the banks and financial institutions to release loans to home buyers, whose loans have been sanctioned, notwithstanding the fact that their accounts are declared as NPAs. It was directed let there be restructuring of the loan amount. It was also directed that it may be released under the current norms of the RBI for releasing loans and the rates fixed by the RBI.
The SC Bench, comprising of Justice Arun Mishra & Justice U U Lalit also held that the NBCC is immune from any legal actions, and it requests the Courts/ Consumer Redressal Commission and other authorities not to permit impleadment of NBCC as respondent and not to issue summons to NBCC as they are doing the work under the supervision of the SC and are not answerable to any other court, tribunal, authorities. It was held that they are granted immunity to be sued in any other court or commission, and they are answerable to this Court only in the pending proceedings. Thus, it was held that they cannot be dragged in the litigation filed by existing home buyers, previous contractors, co-developers, landowners, banks, financial institutions, other lenders and creditors, and any Government authorities before any other Court/ Commission or Authority.
In the present case, the applications were filed by aggrieved parties before the SC in Amrapali Group case, wherein earlier number of directions were given by the SC, including: appointment of receiver; for completion of various stalled projects NBCC was appointed; registration of Amrapali Group of Companies under RERA was cancelled; and also the various lease deeds granted in favour of Amrapali Group of Companies by Noida and Greater Noida Authorities were also cancelled and rights were vested in Court Receiver.
The SC also directed that considering the current state of real estate, the projects are standstill, and in order to give impetus to such housing projects and mainly considering plight of home buyers and as pointed out by Noida and Greater Noida Authorities that 114 plots were allotted from 2005 onwards, most of projects are incomplete; it directs that rate of interest on the outstanding premium and other dues to be realized in all such cases at the rate of 8% per annum and let the Noida and Greater Noida Authorities do a restructuring of the repayment schedule so that amount is paid and Noida and Greater Noida Authorities are able to realize the same.
]]>The SC on May 19, 2020 {KAVITA KANWAR v. PAMELA MEHTA & ORS} held that the Trial Court has returned the findings against the appellant after due appreciation of evidence and the High Court has affirmed such findings after independent and thorough examination of evidence. It was held that there appears hardly any scope for disturbing such concurrent findings by entering into the process of re-appreciation of entire evidence.
It was further observed by the SC Bench, comprising of Justice A.M. Khanwilkar & Justice Dinesh Maheshwari, that the unexplained suspicious circumstances so found are: (a) that appellant, the major beneficiary, played an active role in execution of the Will in question and attempted to conceal this fact before the Court; (b) that there had not been any plausible reason for non-inclusion of the only son and other daughter of the testatrix in the process of execution of the Will and for excluding them from the major part of the estate in question; (c) that there was no clarity about the construction supposed to be carried out by the appellant; (d) that the manner of writing and execution of the Will with technical and legal words was highly doubtful; and (e) that the attesting witnesses were unreliable and there were contradictions in the statements of the witnesses.
It was further held that it remains trite that no one can convey a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet’. It was held that the testatrix never had any right over the property belonging to the appellant and could not have conveyed to the respondent No.1 any property which was of the ownership of the appellant or which might be acquired or raised by the appellant in future by her own funds. On this ground alone, it was held that the Will in question is required to be considered void as per Section 89 of the Succession Act, when the principal bequeathing stipulation in the Will suffers from uncertainty to the hilt.
The SC also held that even in a regular civil suit, mere non-filing of written statement by the defendant does not always lead to a judgment in favour of the plaintiff. It was held that when that regular civil suit usually leads to a judgment inter-partes and not in rem. Even then, the requirement of proof is not obviated. It was held that when the proceeding is solemn in nature like that for probate, which leads to judgment in rem, it is beyond the cavil that mere non-filing of caveat or opposition is not decisive of the matter. It was held that the propounder, in every matter for grant of probate, irrespective of opposition or even admission by any party, is required to satisfy the conscience of the Court, with removal of suspicious circumstances, if any.
The basic point for determination in this appeal before the SC was as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated 20.05.2003.
The SC held that, to cap all the suspicious circumstances, the equivocal stand of the appellant, as regards the third page of the Will and her assertion of having acted in accordance with the “directions” in the said third page of the Will, effectively knocks the entire case of the appellant down to the bottom. It was held that the suspicions arising because of the facts and factors noticed, including the unnatural exclusion of the respondents from estate; uncertain and rather in-executable stipulation about construction by the appellant for the purpose of the respondent No.1; active role played by the appellant in execution of the Will and yet seeking to avoid the factum of her role by incomplete and vague statements; and the witnesses having contradicted the appellant on material particulars etc., have not only gone unexplained but are confounded beyond repair with such vacillating stand of the appellant regarding the said third page of the Will of the testatrix.
In the ultimate analysis, the SC held that it is satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. It was held that the cumulative effect of these suspicious circumstances is that it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question. It was held that the appellant, while seeking probate, has not only failed to remove and clear the aforesaid suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance. It was held that the Will in question cannot be probated from any standpoint.
The SC held that result, inevitable, is that the appeal deserves to be dismissed. It was held that with the concurrent findings having been affirmed and when the appellant is found wanting in forthrightness at various stages of proceedings, costs ought to follow the result of dismissal of the appeal.
Accordingly, the appeal failed and was, therefore, dismissed with costs quantified at Rs. 50,000/- (rupees fifty thousand) by the SC.
]]>The SC on May 13, 2020 {JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS.} held that it is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence.
The SC Bench, comprising of Justice Krishna Murari & Justice Navin Sinha further held that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.
In the present case, an application was filed under Section 65 and 66 of the Indian Evidence Act by the appellants, seeking permission to prove the copy of the Will by way of secondary evidence, as the original Will which was handed over to the village patwari for mutation could not be retrieved. The High Court in revision dismissed the said application - which order was subject matter of challenge before the SC.
The SC held that in the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinizing the same opinion can be found as to the existence, loss or destruction of the original Will. It was held that while both the revenue officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will.
The SC held that it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. It was held that the High Court committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
The SC held that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and was set aside. The appeal accordingly stands allowed by the SC.
]]>The SC on May 6, 2020 {TRILOKI NATH SINGH v. ANIRUDH SINGH(D) THR. LRS & ORS.} held that finality of decisions is an underlying principle of all adjudicating forums. It was held, thus, creation of further litigation should never be the basis of a compromise between the parties. It was held that Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It was further held that the scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. It was held that the Court can be instrumental in having an agreed compromise effected and finality attached to the same. It was held that the Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 CPC before the Court.
The question arose in this appeal before the SC was as to whether the decree passed on a compromise can be challenged by the stranger to the proceedings in a separate suit.
It was held by the SC Bench, comprising of Justice Ajay Rastogi & Justice A.M. Khanwilkar, that after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC. It was held that as such, a right has been given under Rule 1A(2) of Order 43 to a party, who denies the compromise and invites order of the Court in that regard in terms of proviso to Rule 3 of Order 23 CPC while preferring an appeal against the decree. It was held that Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute.
The precise question that fallen for determination before the SC was as to whether the suit filed by the appellant-plaintiff in seeking a declaration against the decree of compromise dated 15th September, 1994 passed by the High Court of Patna in Second Appeal was maintainable in view of the provisions of Order 23 Rule 3 and Rule 3A CPC. It was the case of the appellant that a total of 3 Bigha 6 Katha 3 Dhurs was sold by Sampatiya to appellant-plaintiff for a sum of Rs. 25,000/ by a registered sale deed dated 6th January, 1984 and put the appellant-plaintiff in possession over the suit property, and without the knowledge of appellant and having left with no interest, Sampatiya fraudulently entered upon compromise decree dated 15th September, 1994.
The Court held that indeed, the appellant was not a party to the stated compromise decree. It was held that he was, however, claiming right, title and interest over the land referred to in the stated sale deed dated 6th January, 1984, which was purchased by him from Sampatiya judgment debtor and party to the suit. It was held that it is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. It was held that in the suit now instituted by the appellant, at the best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit. The SC held that, in other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6th January, 1984, allegedly executed by one of the party (Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. It was held that the trial Court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15th September, 1994 passed by the High Court in the partition suit.
The SC held that the appellant can only claim through his predecessor Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. It was held that merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. The Court held that assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It was held that it must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment.
Consequently, the SC held that the appeal is without substance and the same was accordingly dismissed.
]]>The Court held that even otherwise under the Land Reforms Act a person can be either a bhumidhar or an asami of an agricultural land in a village and all other kinds of lands and property vest in the Gaon Sabha. Reference if any in this context may be made to Hatti Vs. Sunder Singh, (1970) 2 SCC 841, Gaon Sabha Vs. Nathi, (2004) 12 SCC 555 and Ram Niwas Vs. Financial Commissioner, Delhi 2011 SCC OnLine Del 1338.
The Court held in view of judgment of SC in Gaon Sabha Vs. Nathi (2004) 12 SCC 555 that: (i) there cannot be even a slightest doubt that the Civil Court had no jurisdiction to entertain the suit which was filed seeking a declaration that the order of vesting of land in the Gaon Sabha was illegal; (ii) once the legal position is that the Civil Court had no jurisdiction to entertain the suit, the inevitable consequence is that the decree passed by the Civil Court in the earlier suit in that case, was wholly without jurisdiction; (iii) in such circumstances, the principle would come into play, that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be setup whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings and that a defect of jurisdiction strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties; and, (iv) therefore the finding that the order passed (in that case) under Section 7(2) of the Land Reforms Act vesting the property in the Gaon Sabha was illegal, recorded in the earlier Civil Suit, had to be completely ignored.
In the present case, the assail was to judgment and decree dated 19th January, 2011 of the Court of Additional District Judge of dismissal of Regular First Appeal under Section 96 of the CPC preferred by the appellant / defendant (DDA) against the judgment and decree dated 1st February, 2005 of the Court of Civil Judge, Delhi, whereby the below Courts, allowed the suit of the predecessor of the respondents / plaintiffs against the appellant / defendant DDA and its officials as well as against the Union of India (UOI), restraining the appellant / defendant DDA and its officials from forcibly or illegally demolishing the room / khoka situated in Khasra No.2931/1661/2/1 in Khewat No.178, Khatauni No.479 of village Mehrauli, New Delhi. In second appeal, the HC was considering the said judgment of below Courts, and eventually set aside the decree of injunction passed by lower Court.
The suit, from which this Second Appeal arose before the HC, was filed by predecessor of the respondents / plaintiffs herein, against the appellant / defendant DDA, it officials and UOI, for permanent injunction to restrain the appellant / defendant DDA, its officials and UOI from demolishing the room in the suit property. However, undisputedly, there was an order dated 30th September, 1959, in earlier litigation, of vesting of subject land in the Gaon Sabha which was passed by the Revenue Assistant under the provisions of the Delhi Land Reforms Act, 1954, which had attained finality, as it was not challenged by the predecessor of the respondents/ plaintiffs in appropriate forum.
It was held by the HC that since the respondents / plaintiffs are admittedly in possession since long, whether it would be appropriate to maintain the decree for permanent injunction against the forceful dispossession, permitting appellant / defendant DDA to take legal recourse. The Court held, however on deeper consideration, it has decided against this course of action. It was held that the reason therefor is, that the respondents / plaintiffs, whose rights in the subject land stood extinguished more than half a century back on 30th September, 1959, have, by resorting to successive legal proceedings, continued in possession. It was held that else it is abundantly borne out from above that the respondents / plaintiffs are rank trespassers over public property. It was held by the HC that it is thus not deemed appropriate to, by continuing the decree for permanent injunction against forceful dispossession, perpetuate the said illegal possession of the respondents / plaintiffs any further. Accordingly, the appeal was allowed by the HC, setting aside the decree of perpetual injunction.
]]>The Delhi High Court on May 1, 2020 {NEERU DHIR AND ORS v. KAMAL KISHORE DHIR AND ORS} held in the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. It was held therefore, there was no occasion for the Court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. The Court held that on perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act.
The High Court observed that an instructive discussion on the scope of sub-section (3) of Section 4 of the Banami Act is found in Marcel Martins vs. M. Printer and Others (2012) 5 SCC 342, where the Supreme Court has elaborated the definition of the expression, ‘fiduciary capacity’ used in sub-section 3(b) of Section 4 of the Benami Act and concluded that for determining whether a relationship is based on a fiduciary capacity, the Court will have to take into consideration the factual context in which the question arises and only in that background, can any finding be returned. The High Court further held that any amendment to the Benami Transactions (Prohibition) Act, 1988 by virtue of Act 43 of 2016, that came into effect on 01.11.2016, cannot acquire retrospectivity.
In the present lis, the appellants/plaintiffs have questioned the judgment passed by the Single Judge of HC dismissing a suit, for partition and permanent injunction instituted by them against the respondents/defendants claiming that they are collectively entitled to 1/10th undivided share in the suit property, being barred by the Benami Transactions (Prohibition) Act, 1988.
The Division Bench of High Court held that if it goes strictly by the averments made in the plaint and the documents filed by the appellant/plaintiffs, it is of the opinion that the suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs are barred under Section 4(3) of the unamended Benami Act. It was held that the matter would require a more comprehensive consideration after permitting the parties to lead evidence in the case. The Court held that Order VII Rule 11 CPC was not the appropriate stage for testing the veracity of the pleas taken in the plaint and return any finding on the merits of the said plea taken by the appellants/plaintiffs in the plaint or to extensively examine the underlying intent of the parties on a perusal of the documents filed by the appellants. It was held by the HC that on a bare reading of the averments made in the plaint read in conjunction with the documents placed on record, it is of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. The Court held that at the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the Court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents.
In view of the aforesaid, the appeal was allowed by the Division Bench of the Delhi High Court. The impugned judgment of Single Judge was quashed and set aside. The suit was restored by the Division Bench of the High Court to its original position for being taken further from the stage at which the impugned judgment was passed by Single Judge.
]]>The SC on April 24, 2020 {SHIVAKUMAR & ORS. v SHARANABASAPPA & ORS.} held that the problems relating to the probative value of the Will (Ex. P.4) do not end with the abnormal features and curious factors (as mentioned in latter part). It was held that a close examination of the Will takes from abnormalities to mysteries too. It was held that in the opening passage of this document, the recital is to the effect that the testator was making the Will because so many accidents do happen. It was observed by the SC that the fact remains that the testator and his wife both died in the car accident on 20.05.1994 but, it would require travelling into an entirely mystical region to accept that while making the Will on 20.05.1991, the testator had the premonition that he would perish in a vehicular accident.
It was further held by the SC Bench, comprising of Justice A.M. Khanwilkar, Justice Hemant Gupta & Justice Dinesh Maheshwari, that the indisputable fact that page number 2 and page number 4 of the document in question (EX. P.4) do not carry the signatures of the testator whereas other pages do carry his signatures, places the document in conflict with, or at least non-compliant with, the requirement of clause (b) of Section 63 of the Succession Act. It was held that the document in question (Will) could be rejected outright for this reason alone.
In the present appeal, the following points arose for determination before the SC: i. As to whether the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document? ii. As to whether the High Court ought to have considered remanding the case to the Trial Court?
The SC after dealing with law, as developed, in regard to 'Will', has summarised the legal position, as mentioned hereinafter:
"11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:–
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’
7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
It was held by the SC that at least four unusual features of the document in question are evident on the face of the record. It was held that the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper, i.e. which are definitely not of the same colour and have not been picked up from the same stack; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4. It was held that it does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. It was further held that in fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. It was held that although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document.
It was held that when all the aforesaid abnormal, curious and rather mysterious circumstances are put together, the inescapable conclusion is that the document in question cannot be accepted as the last Will of the testator. It was held that the unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. It was observed by the SC that the High Court has stated such deduction after thorough examination of the material on record and, in its view, rightly so. It was held that it is noticed that all the features and factors indicated hereinabove are very much available on the face of the record. It was observed, however, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. It was held that the Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved.
It was further held by the SC that it is sought to be contented on behalf of the appellants that using of blank papers had not been the objection taken by the defendants. It was observed by the SC that the contention remains bereft of substance for the simple reason that the defendants indeed asserted that the document in question was a fabricated one. It was held that the likelihood of it being drawn on the available blank papers with signatures of the testator is nothing but a deduction that logically comes out of the examination of the document in question.
WHETHER REMAND WAS CALLED FOR
It was held by the SC that a conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It was observed that it is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It was held that it remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. It was further held that an order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. It was held that there could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.
It was held by the SC that as noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. It was held by the SC that the High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. It was held by the SC that there was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and was, rejected by the SC.
In the present appeal before the SC, the plaintiff-appellants have challenged the judgment and decree dated passed by the High Court of Karnataka at Bangalore whereby, the High Court reversed the judgment and decree dated 12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal.
It was held by the SC that having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened.
It was held by the SC that the document in question falls flat at the very first question that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. It was further held that this is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act.
In the ultimate analysis, It was held by the SC that it is satisfied that the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document, and there was no reason for the High Court to remand the case to the Trial Court. Accordingly the appeal was dismissed by the SC.
]]>The SC on April 24, 2020 {FIRM RAJASTHAN UDYOG & ORS. v. HINDUSTAN ENGINEERING & INDUSTRIES LTD.} held that the Award passed in present case was merely for the declaration of the price of the land, which would be subject to the agreement and it was not necessary for the respondent to get the sale deed executed at the price so determined by the Arbitrator. It was held that what was thus executable was the agreement, and not the Award. It was held that the relief granted by the Court below for execution of the sale deed in terms of the Award, is thus outside the realm of law, as the Award did not contemplate the transfer of land in favour of the respondent, but only determined the price of land.
It was further held by the SC Bench, comprising of Justice U U Lalit & Justice Vineet Saran, that the specific performance could only be of the Agreement dated 01.02.1980 and not of the Award dated 09.06.1985. It was held that even the operative portion of the Award also does not give any direction for execution of the sale deed. It was observed that it was after the passing of the Award that the respondent could have fallen back on the agreement for execution of the sale deed, which respondent did by filing the suit for specific performance, but abandoned such claim by withdrawing the suit unconditionally.
It was observed by the SC that it is noteworthy that the reference to Arbitrator was only with regard to the determination of price of land of 145 bighas or the compensation to be awarded to the appellant by the respondent for the said land, which is clear from the very observation of the Arbitrator in award that the parties had “referred their dispute regarding determination of compensation of land to me as Sole Arbitrator”, meaning thereby the Arbitrator was to declare the price of land/compensation to be paid for the land by the respondent to the appellant, and nothing more.
It was observed that after the passing of the Award by the Arbitrator dated 09.06.1985, which was later confirmed and made Rule of the Court by the Rajasthan High Court on 01.12.1993 and the Special Leave Petition filed by the appellant against the said order was dismissed on 29.03.1994 and the Award had attained finality, the respondent filed a Civil Suit No.60 of 1996 for specific performance of the Agreement dated 01.02.1980. It was held by the SC that it was this suit for specific performance of agreement under which a direction could have been issued for execution of the sale deed in terms of the Agreement dated 01.02.1980. However, it was observed that the same was unconditionally withdrawn on 13.02.2006, on an application filed by the respondent on 06.02.2006. It was held that with the withdrawal of such suit for specific performance, the matter with regard to the execution of the sale deed in terms of the Agreement dated 01.02.1980 came to an end. It was further held that the effect of withdrawing Civil Suit No. 60 of 1996 would be that the plaintiff therein (respondent herein) had abandoned its claim of execution of the sale deed in terms of the Agreement dated 01.02.1980, which would be clear from the provisions of Rule 1(4) of Order XXIII CPC.
It was held that it is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, it was held that the Arbitrator in its Award had only declared the price of land and nothing more. Thus, it was held that the question of execution of a sale deed of the land at the price so declared by the Arbitrator in its Award, could not be directed.
ISSUE INVOLVED
In the factual matrix of the present appeal, the only question which arise for determination before the SC was as to whether the reference to the Arbitrator, in terms of the Agreement dated 01.02.1980, was merely for fixation of price of land to be sold by the appellant to the respondent in terms of the agreement, and if that be so, could a direction to execute the sale deed have been issued vide order dated 04.07.2016, even though the Civil Suit No. 60 of 1996 seeking specific performance of Agreement dated 01.02.1980 filed by the respondent was unconditionally withdrawn by the respondent on 13.02.2006. It was answered in negative by the SC.
It was held that going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was held that it is only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. It was held that the Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.
In the present case, on 05.01.1995, ADJ Bharatpur allowed the execution application of the respondent and directed the appellant to execute a registered sale deed and hand over the possession of land in question to the respondent. On 04.07.2016, the impugned order (subject matter of present appeal before the SC) was passed by the Rajasthan High Court in Civil Revision Petition, whereby order of ADJ Bharatpur dated 05.01.1985 was upheld. Both of which orders were set aside by the SC.
Accordingly, the impugned judgment of the Rajasthan High Court dated 04.07.2016, upholding the order of the Additional District Judge dated 05.01.1995 was quashed, and the appeal was allowed by the SC.
]]>Supreme Court of India
Justice R. Subhash Reddy & Justice Mohan M. Shantanagoudar
The SC on April 17, 2020 {Anjuman E Shiate Ali & Anr. v. Gulmohar Area Societies Welfare Group & Ors.} held that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. It was held that the 4 plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of the appellant-Society in its entirety and approval was taken for dividing such land into 61 plots. It was held that it is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It was also held that it is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. It was further held that the Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. It was held that the appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.
It was held that, it was rightly held by the High Court, that the two plots, which are shown as open spaces/garden, in the approved layout, cannot be allowed to be used for the purpose of construction. It was held that having had the benefit of such approved layout, and after making constructions in all the plots, except these two plots, which are left towards open space/garden, the appellants cannot claim that they are entitled to make constructions, based on development plan prepared by MHADA, for the entire JVPD Scheme, which covers more than 5,80,000 sq. yards. It was held that there is no such concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder.
Further held that during the relevant time, MMC Act, 1888 (Bombay Act No.3 of 1888) was in force. It was held that to divide the land into complete plots, statutory approvals were required for the layout as per Section 302 and 302-A of the said Act. It was held that as such, the open spaces, which were left towards open space and garden in the approved layout were in conformity with the Regulation No. 39 of 1967 DCR and Sections 302 and 302A of MMC Act.
In the present case, the issue which is required to be considered by the SC is whether the two sub-plots bearing Nos. 3/14 and 6/11, which are shown as open spaces/garden in the approved layout of 1967, can be allowed to be utilized for constructions, in view of the subsequent development plan prepared by MHADA. The said was answered in negative by the SC.
Consequently, it was held by the SC that there is no merit in the appeals, accordingly, the appeals were dismissed.
]]>Justice Hemant Gupta & Justice L. Nageswara Rao
The SC on March 19, 2020 {DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS.} held that there is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. It was held that a party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.
It was held that in the present case as well, the Will was in possession of the beneficiary and was stated to be lost. It was held that the Will is dated 30th April, 1980 whereas the testator died on 15th January, 1982. It was also held that there is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. It was held that Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. It was further held that the plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. It was held that the execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit.
It was opined that once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.
It was further held that onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. It was held that once the Will has been proved then the contents of such document are part of evidence, and thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. It was held that the witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It was held that it is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. It was held that the statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar’s office.
It was further held that the judicial verdict will be based on the consideration of all the unusual features and suspicious circumstances put together and not upon the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution. It was also held that the Will was executed for the exclusion of the natural heirs - the suspicious circumstances found by the High Court to deprive the natural heirs by the testatrix was not found to be sufficient in earlier judgment by the SC.
It was held that the High Court has clearly erred in law in interfering with the concurrent findings of fact recorded by both the Courts below. It was held that the entire judgment runs on misconception of law and is, therefore, not sustainable in law. Accordingly, the same was set aside and the decree of the First Appellate Court was restored by the SC.
In the present case, the challenge before the SC in the present appeal is to an order passed by the High Court of Punjab & Haryana on 27th March, 2014 whereby the concurrent findings of fact recorded by both the courts below were set aside and the suit filed by the respondent-plaintiff was decreed. The said judgment of HC was set aside by the SC, and the suit consequentially stand dismissed.
]]>Justice Deepak Gupta & Justice L. Nageswara Rao
The SC on April 3, 2020 {BHAGWAT SHARAN (DEAD THR.LRS.) v. PURUSHOTTAM & ORS.} held that the law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgment in Bhagwan Dayal vs. Reoti Devi (AIR 1962 SC 287). It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family.
After referring catena of judgments, it was held by the SC that the law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.
It was held that there is cleavage of opinion as to whether two brothers of a larger group can form a joint family. It was held that but assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. It was held that to prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.
It was held that it is apparent that there is no pleading that Mangat Ram and Sons constituted a HUF. It was held that there is no allegation that this family had some property as its nucleus. It was held that since there is no allegation that Mangat Ram and his four sons constituted a HUF, the fact that Lal Chand left the family to live by himself, would not in any manner mean that there was a disruption of the joint family status. It was held that a disruption would arise only if there was an allegation that earlier there was a HUF.
It was further held that an admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It was held that an admission is not conclusive as to the truth of the matters stated therein. It was further held that it is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It was held that it can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.
It was held that the plaintiff and defendant nos. 1-3 by accepting the bequest under the Will elected to accept the will. It was held that it is trite law that a party cannot be permitted to approbate and reprobate at the same time. It was held that this principle is based on the principle of doctrine of election. In respect of Wills, it was held that this doctrine has been held to mean that a person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will.
It was held that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". It was held that where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order. It was also held that the doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. It was held that any party which takes advantage of any instrument must accept all that is mentioned in the said document.
It was held that the plaintiff having elected to accept the Will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect.Accordingly, in view of the above, the appeals filed by the appellant(s) were dismissed by the SC.
In the present case, the trial court decided all the issues in favour of the plaintiff and decreed the suit holding that all the properties were joint family properties and that plaintiff had 2.38% share in the same. The contesting defendants filed an appeal in the High Court of Madhya Pradesh, and accordingly the decree by the trial court was set aside by the HC. The judgment of the HC - dismissing the suit of the plaintiff- was sustained by the SC as aforesaid.
]]>Justice Hemant Gupta & Justice L. Nageswara Rao
The SC on March 19, 2020 {NAND RAM (D) THROUGH LRS. & ORS. v. JAGDISH PRASAD (D) THROUGH LRS.} held that the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. It was held that the appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, it was held that such suit would fall within Article 67 of the Limitation Act. Further held that such suit having been filed on 13th March, 1981 within 12 years of the determination of lease by efflux of time on 23rd September, 1974, the same is within the period of limitation. Thus, it was held that the findings recorded by the High Court were clearly erroneous in law and the same cannot be sustained and were, thus, set aside by the SC.
It was held that the respondent continued to be in possession of the land leased vide registered lease deed dated 22nd September, 1954. It was also held that the respondent has admitted the ownership of the appellants before the Reference Court and such plea operates as estoppel against the respondent in respect of the title of the appellants. It was held, however, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, it was held that the respondent has denied his status as that of a tenant but claimed title in himself. It was further held that the respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. Further held that the respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. It was held that the respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. It was held that the question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by the SC in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. (2020 SCC OnLine SC 37).
The assail in the present appeal was to an order passed by the High Court of Delhi on 12th November, 2010 whereby the appeal filed by the defendant was allowed and the suit for possession of land comprising in Khasra No. 9/19 measuring 3 Bighas 11 Biswas was dismissed.
In view of above, the appeal was allowed and the suit was decreed by the SC; while setting aside the judgment of the HC, whereby it was erroneously held by the HC that the suit is barred by limitation in terms of Article 66 of the Limitation Act.
]]>Chief Justice S A Bobde, Justice S Abdul Nazeer and Justice Sanjiv Khanna
The SC {MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHER v. VIJAY BODANA AND OTHERS} holds that the writ petition challenging the orders dated 12th May 2008 and 24th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. It was held that in the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. Further hold that the impugned judgment notices that many of these bonafide owner/purchasers had completed the construction and some houses were in advanced stages of construction. It was held that while the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third party rights by wrongly applying the principle of promissory estoppel and lis pendens. It was held that Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Further held that considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. It was held that in view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs. Accordingly the judgment of the HC was set aside by the SC.
Further held that the Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. It was held that stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Further held that normally opposition and prejudice should not be presumed, unless there are grounds and reasons. It was held that given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation.
In the present case, the quashing and setting aside of the order dated 12th May 2008 of the Commissioner, Ujjain and the order dated 24th September 2008 of the Deputy Director, Town and Country Planning, Ujjain approving the change in the layout plan of Indira Nagar, Ujjain by the High Court was assailed before the SC. In view of above, the appeal was allowed by the SC, and the residential plots were restored to owners/ purchasers.
]]>Justice L. Nageswara Rao & Justice Deepak Gupta
The SC {M. Vanaja v. M. Sarla Devi} holds that mandate of the Hindu Adoptions and Maintenance Act 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions mentioned in Chapter I of the Act of 1956. It was further held that the two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. It was held that the consent of the wife is mandatory for proving adoption.
The points that arises for consideration in present lis were whether the Appellant has proved that she has been adopted by the Respondent and Respondent’s husband, whether she is entitled to a declaration that she is the daughter of the Respondent and Narasimhulu Naidu, and whether the Appellant is entitled to partition of the properties belonging to Narasimhulu Naidu. The SC, while dismissing the appeal, held in negative.
]]>Supreme Court of India
Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M. R. Shah & Justice S. Ravindra Bhat
The SC {INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL & ORS. ETC.} was considering the correct interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'the Act of 2013'), vide reference to the five Judges Bench. Overruling the earlier dicta of three judges bench of the SC of 2014, which ruled in favour of lapsing of land acquisition proceedings, while, answering the reference it was held by the SC:
"In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
3. The word ‘or’ used in Section 24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).
7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."
The reference was accordingly answered by the SC.
]]>Justice Sanjay Kishan Kaul & Justice K M Joseph
The SC {D.B. BASNETT (D) Through LRs v. THE COLLECTOR East District, Gangtok, Sikkim & Anr.} holds that following the procedure of Section 4(1) of the Land Acquisition Act, 1894 (akin to Section 5(1) of the local Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful. It was held that the law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land.
It was held that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. Further held that the appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. On account of the judgment of the SC in LAO v. M. Ramakrishna Reddy, (2011) 11 SCC 648, where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.
In the present case, the sum and substance of the claim made by the appellants was that the procedure envisaged under the Sikkim Land (Requisition and Acquisition) Act, 1977 had not been invoked or followed. The plea raised was that no notice of acquisition was ever published, nor any process followed for the same. Respondent No. 2 sought to raise a defence to the suit of the bar of limitation. The appeal was allowed by the SC holding possession of the government on the land of the appellant as illegal.
]]>JUSTICE MOHAN M. SHANTANAGOUDAR & JUSTICE R. SUBHASH REDDY
The SC {Sajan Sethi v. Rajan Sethi} holds that having raised the dispute of the common areas, when such claim is considered by framing an issue, which are in accordance with the pleadings and evidence on record, it is not open for the appellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit. It was held that having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas.
In the present case, the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant / defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. Therefore, the SC held that once the defendant raised the said aspect cannot challenge the finding arrived by the courts below, on the count, that the said issue is not the part of the suit.
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