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the communication dated 4 th April, 2011 of the Regional Passport Office, Ministry of External Affairs, Government of India and seeking a mandamus for issuance of the passport, applied for by the appellant.-The letter dated 4 th April, 2011 appears to suggest that the name only of the biological parents can be written in the passport. The same would be contrary to Section 12 of the Adoption Act providing for the adopted child, from the date of adoption being deemed to be the child of adoptive parents.
LPA.No.357/2012 Page 1 of 16 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11 th May, 2012 + LPA No.357/2012 MS. TEESTA CHATTORAJ THROUGH HER MOTHER/NATURAL GUARDIAN SMT. RAJESHWARI CHATTORAJ ….. Appellant Through: Mr. M. Dutta, Advocate Versus UNION OF INDIA ….. Respondent Through: Mr. Ruchir Mishra, Advocate. CORAM :- … Continue reading
FAMILY LAW – APPEAL – EXPEDITION – Where the orders the subject of the appeal result in a radical change to the child’s living circumstances – Where a stay of the orders was refused – Where the application has been made without delay – Where expedition is not opposed by the Independent Children’s Lawyer and will not cause prejudice to the respondent father – Where the circumstances leading to expedition are marginal – Where expedition will not displace other appeals already listed for hearing – Application allowed.
[2012] FamCAFC 167 Coversheet and Orders Page 1 FAMILY COURT OF AUSTRALIA COX & PEDRANA [2012] FamCAFC 167 FAMILY LAW – APPEAL – EXPEDITION – Where the orders the subject of the appeal result in a radical change to the child’s living circumstances – Where a stay of the orders was refused – Where the … Continue reading
The position in Muslim Law is that at the moment of death of a Mohammedan, his estate devolves on his heirs and they take the estate as tenants-in-common in specific shares. Muslim Law does not recognize the theory of representation and the interest of each heir is separate and distinct. Therefore, there can be no presumption that acquisition of a property by one or more member(s) of the family is for the benefit of the entire family, unless there is proof to the contrary. The concept of a joint family is foreign to Muslim Law. It is however common in certain areas of Andhra Pradesh, formerly belonging to the Madras State, for descendant Mohammedans to live and trade together and to acquire properties together. There is nothing contrary to law in Mohammedan adult male members of a family carrying on trade for the benefit of all the interested members, including minors and females. The Courts have upheld such legal arrangements and the legal consequences as in law that follow from them. When an adult male member holds assets and carries on business on behalf all the persons interested therein, he stands in a fiduciary relationship to such other persons. Sections 23, 88 and 90 of the Trusts Act are applicable to such cases – Once part of the sale consideration under Ex.A9 came out of the joint funds, the said property inevitably took on the character of joint property. it is liable for partition.
THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR LETTERS PATENT APPEAL NO.141 OF 2002 01-03-2012 Shaik Mohd. Ali Ansari & others. Shaik Abdul Samed (Died) Per LRs. and others. Counsel for appellants : Sri Vedula Venkataramana Counsel for respondents : Sri Y.G.Krishna Murthy ? CASES REFERRED: 1) AIR … Continue reading
The Government of Gujarat, in exercise of its power under the Act of 1957 and the Rules, 1982 appointed appellant no.2 as the President of the Gujarat Revenue Tribunal vide order dated 16.4.1988. His appointment was challenged by the respondents herein, on the ground that the office of the Chairman, being a “judicial office” could not be usurped by a person who had been an Administrative Officer all his life. The validity of Sections 4 and 20 of the Act 1957 and Rule 3(1)(iii)(a) of the Rules 1982 was challenged the High Court committed an error by striking down the aforesaid rule, holding that the Secretary to the Government of Gujarat cannot be appointed as President of the Tribunal. It erred in holding that the Tribunal was a court and only a “Judicial Officer”, i.e., a Judicial Officer holding such equivalent post as is referred to in Rule 3(iii) of the Rules 1982 can be appointed as President of the said Tribunal.In view of the above, we do not see any cogent reason to take a view contrary to the view taken by the High Court. The appeal lacks merit and is, therefore, accordingly dismissed.
REPORTABLE IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7208 OF 2012 State of Gujarat & Anr. … Appellants Versus Gujarat Revenue Tribunal Bar Association & Anr. … Respondents J U D G M E N T Dr. B.S. CHAUHAN, J.: 1. This appeal has been preferred against the impugned judgment and order … Continue reading
co-driver = Sh. Meghraj Singh, husband of respondent no.1/complainant, got his car insured with petitioner/o.p. and paid the insurance premium. It is alleged that the said car met with an accident where in husband of the respondent no. 1 died. The car was being driven by the driver ?= It is an admitted fact that deceased was travelling as co-driver and when accident was caused another person was driving the vehicle. It is not the case of petitioner, that driver who was driving the vehicle at the time of accident was not having a valid and effective driving licence. 12. Under these circumstances, as per terms and conditions of the policy, deceased was fully covered for a sum of Rs.2 lakhs. Hence, legal heirs of the deceased are fully entitled to receive the insurance claim.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2611 OF 2012 Alongwith (I. A. No. 1 of 2012) (for Stay) (From order dated 29.05.2012 in First Appeal No. 120 of 2010 of Uttarakhand State Consumer Disputes Redresdsal Commission, Dehradun) National Insurance Co. Ltd., Regional Office, Rajpura Road, Dehradun. Through … Continue reading
Hindu Law: Joint family properties – Partition of through family settlement – Sisters relinquishing their rights in properties in favour of their brothers – Consent decree based on family settlement – HELD: A partition by meets and bounds may not always be possible – A family settlement is entered into for a larger purpose of achieving peace and harmony in the family – It is not a case where settlement was contrary to any statutory provision or was opposed to public policy – Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law – Contract Act, 1872 – s.23. Deeds and Documents: Deed of `release’ – Relinquishment of right in property by sisters in favour of their brothers – HELD: Release by an heir other than coparcener does not need any consideration – s. 25 of Contract Act must be read and construed having regard to the fact situation obtaining in the case – Renunciation in Indian context may be or may not be for consideration – Contract Act, 1872 – s.2 (d) and 25 – Transfer of Property Act, 1882 – ss. 122 and 123. Contract Act, 1872: ss. 17 and 19 – `Fraud’ – Voidability of agreement – Suit by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit – HELD: When a fraud is alleged, particulars thereof are required to be pleaded – In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed – Besides, documents on record show that partition consequent upon consent decree had been acted upon – Papers were signed either in office of advocate or before Sub-Registrar – Both the courts below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties – No case of fraud or misrepresentation has been made out – Code of Civil Procedure, 1908 – Or. 6, r.4. Limitation Act, 1963: Schedule – Articles 59, 65 and 110 – Suit alleging fraud in obtaining deed of partition – Limitation – HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or not – In the instant case, it was required to be set aside – In view of Article 59, suit was barred by limitation. The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the suit properties on the ground that the same were self acquired properties of their father, `KS’. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respondents nos. 1 and 2 was that their father `KS’ alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. `KS’ had two wives namely `S’ and `V’ and in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of `KS’ by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) amongst the children of `KS’ from `S’ in terms whereof 1/3 share in the property shown as Item No.3 was allotted to their mother `S’ and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. `S’ died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No.2 of the suit properties. In the appeal the plaintiffs filed an application under Or.6 r.17 read with s. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 to the Schedule of the properties. The High Court dismissed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No. 2459 of 1982 being fraught with the elements of fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiffs-appellants could be said to have voluntarily made admissions in the said pleading; that the deed of partition and the deed of relinquishment being void ab initio and hit by Section 25 of the Indian Contract Act as for the said purpose passing of adequate consideration was necessary, love and affection being not the requisite consideration therefor and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment; that the partition of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents; that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be attracted and not Article 59 thereof. Dismissing the appeal, the Court HELD: 1.1 The source of title in respect of properties in suit is not in question, as the same have all along been treated as joint family properties by both the branches of `KS’ through his two wives `S’ and `V’. This is evident from the records of O.S. No. 2459 of 1982. The fact that in the said suit, the properties of `KS’ were described as the joint family coparcenary properties is not in dispute. Even otherwise, in view of the well-settled principle of law that when a son gets a property from his father, as soon as sons are born to him, a joint family is constituted. It is not a case that sons from either side of the family were born before the Hindu Succession Act 1956 came into force. [para 23 and 26] [323-A,F,G. 326-A,B] Mst. Rukhmabai v. Lala Laxminarayan and Others 1960 (2) SCR 253 – relied on. 1.2 The earliest deed of partition dated 22nd July, 1957 was a registered document. A perusal of the averments made in the plaint categorically goes to show that the partition referred to therein related to the partition effected in 1957. The admissions made by the appellants in their pleadings in Suit No. 1760 of 1990 themselves are sufficient to hold that the property was a joint family property and by reason of the said deed of settlement culminating in passing of the compromise decree dated 20.12.1982, a valid consent decree was passed. [para 25] [325-D,F,G] 1.3 It may be true that although the properties were described as coparcenary properties and both the branches were granted equal share, but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some `give and take’ was necessary for the purpose of arriving at a settlement. A partition by meets and bounds may not always be possible. A family settlement is entered into for achieving a larger purpose, viz., achieving peace and harmony in the family. [para 24] [324-E,F] Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others (2006) 4 SCC 658; Govt. of A.P. and Others v. M. Krishnaveni and Others (2006) 7 SCC 365 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726 – relied on. 1.4 When there arises a question as to whether the suit was to be regarded as having adjusted by way of mutual agreement so that it can be disposed of on the said terms, in the event of a dispute, the consideration is different. However, where a settlement had been arrived at and a decree was passed on the premise that the said compromise was lawful, the same cannot be permitted to be reopened only on the question as to whether the properties were joint properties or self-acquired properties of the common ancestor. A consent decree was passed in Suit No. 2459 of 1982 pursuant to a settlement arrived at between the two branches. The properties were divided half and half through a deed of partition (Ext. D-6). Indisputably, the said consent decree has been acted upon and ten sale deeds and some lease deeds have been executed and, therefore, question of reopening entire Suit No. 2459 of 1982 by setting aside the decree passed therein would not arise. [Para 23 and 39] [323-G, 324-A,B, 336-B,C,D] 2.1 In the instant case, the basis for the entire suit being commission of fraud in obtaining the consent decree in suit No. 2459 of 1982, it was obligatory on the part of the plaintiffs in Suit No. 1760 of 1990 to pray for setting aside the said decree. The pleadings of the appellants in the suit in which they were parties are binding on them in the subsequent proceedings proprio vigore. Unless fraud was proved, they could not have got rid of the same. When a fraud is alleged, as provided in Order 6, r.4, Code of Civil Procedure, 1908, the particulars thereof are required to be pleaded. In suit No. 1760 of 1990 no particulars of the alleged fraud or misrepresentation have been disclosed. The plea of fraud raised therein is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representations, who made the representations and what type of representations were made, have not been stated. [para 23, 35-36] [324-C,D, 331-D,E,F,G] A.C. Ananthaswamy v. Boraiah (2004) 8 SCC 588 – relied on. 2.2 If a fraud or misrepresentation is to be attributed, the same must be attributed to the entire family representing both the branches and not to respondent No.1 alone. They must have thought that by reason of such averments a settlement can be brought about. The averments made in the suit filed by one branch were accepted by the other branch without any demur whatsoever. [para 25] [325-G, 326-A] 2.3 Before the deed of partition was entered into, on 15th July, 1983 a special power of attorney was executed by plaintiff no.2 in favour of respondent No.1. A clear recital was made therein that she had agreed to relinquish her interest and the power of attorney was being executed pursuant thereto. Power of attorney need not necessarily be preceded by a regular deed. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways. A power of attorney need not disclose the purpose for which the relinquishment is made or the consideration thereof. [para 28-29] [326-D,E,F,G,H] 2.4 Section 19 of the Contract Act 1872 provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. [para 33] [330-A,B] Prem Singh v. Birbal and Others (2006) 5 SCC 353 – relied on. 2.5 In the plaint of Suit No. 1760 of 1990, execution or validity of the documents including the registered power of attorneys and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed between 1983 and 1985 are not in question. There are a large number of documents brought on record by the parties wherefrom a positive knowledge of execution of the partition deed (Ext. D-6) on the part of the sisters is possible to be attributed. These documents in categorical terms go to show that the partition effected in 1983 had been acted upon. Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar. It was, therefore, done at a public place. No signature was obtained on the blank paper. Plaintiff-appellant No. 1 in her deposition before the trial court admitted that each of the sisters had been given one rupee and their signatures were obtained on the partition deed dated 5th August, 1983. She was fluent in English and signed the documents in English. Both the courts below have come to the conclusion that the sisters jointly had taken a stand that they would not claim any share in the property. One of the sisters, who wanted a share in the property, had been paid a sum of Rs. 40,000/- and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition was executed with the knowledge that they had been signing the deed of partition and no other document. The plaintiff-appellants never stated that any fraud or misrepresentation had been practiced in regard to the character of the documents. No case of fraud or mis-representation has been made out. It was, therefore, difficult to arrive at a conclusion that the plaintiffs-appellants were not aware of the nature of the document or that any fraud had been practiced on them. These findings have a direct bearing on the question as to whether the deed of partition as also the power of attorneys were vitiated by reason of any fraud or misrepresentation on the part of respondents Nos. 1 and 2. It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. [para 29-32, 37 and 54] [327-D-F, 329-E,F 332-A-D, 343-F] Prem Singh v. Birbal and Others (2006) 5 SCC 353 – relied on. 3. It is not a case where the settlement was contrary to any statutory provision or was opposed to public policy as envisaged under Section 23 of the Contract Act. The court shall apply the statute for upholding a compromise unless it is otherwise vitiated in law. It is not required to go into the question as to whether the contents of the said settlement are correct or not. Only in a case where fraud on the party or fraud on the court has been alleged or established, the court shall treat the same to be a nullity. [para 40] [336-D,E,F] Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath Bhokare (2005) 10 SCC 465; Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others (2006) 5 SCC 638; Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) Through LRs. and Others (2005) 11 SCC 314 – relied on. Sundar Sahu Gountia and others v. Chamra Sahu Gountia and others AIR 1954 Orissa 80 – held inapplicable. Ganpatbhai Mahaijibhai Solanki v. State of Gujarat and Ors. 2008 (3) SCALE 556 – referred to. 4.1 A deed of `release’ for a consideration is a transaction. When, a release is made for consideration, the particulars of consideration and other particulars are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the cases. Renunciation in Indian context may be for consideration or may not be for consideration. [para 43 and 45] [337-D,E,F, 338-E] Smt. Manali Singhal and another v. Ravi Singhal and others AIR 1999 Delhi 156; Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another (1967) 1 SCR 275; Chief Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel AIR 1968 Madras 159; The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai AIR 1977 Madras 10- referred to. De’ Souza’s Conveyancing, page 1075 – referred to. 4.2 Section 25 of the Contract Act contains several exceptions, that is to say : (i) if it is in writing; (ii) if it is registered or (iii) if the same has been executed on account of natural love and affection. The deed of partition is both in writing and registered. The fact that the parties are near relatives is not in dispute. The love and affection of the sisters on the brothers has categorically been accepted by plaintiff No. 1 in her deposition. [para 47] [340-C,D,E] 4.3 Assuming that the consideration of rupee one shown in the deed of partition is no consideration in the eye of law. However, a partition deed is per se not a void document. No such plea was raised. No issue has been framed. No evidence has been adduced. No ground has been taken even in the memo of appeal before the High Court. Validity of the partition deed (Ex. D-6) by reference to the recitals of the release of shares by other daughters has not been questioned. The parties knew the nature of the document. Appellants and other sisters being highly educated were supposed to know the contents thereof. Their husbands are well-off in the society. The transaction, therefore, was transparent. Furthermore, the mother was alive. She was also a party to the deed of partition. She must have played a pivotal role. She might be anxious to see that family properties are settled. Release by an heir other than a co-parcenar does not need any consideration. A release is valid even without consideration. [para 44 and 48] [338-B,C,D, 340-F,G, 341-A] 4.4 The High Court, therefore was correct in not allowing the appellants to raise the plea of consideration. As defined in s.2(d) of the Contract Act, 1872, consideration, even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promisee or by the transferor to the transferee. Love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act. [para 51 and 53] [342-C,D, 343-D] Mt. Latif Jahan Begam v. Md. Nabi Khan AIR 1932 Allahabad 174; Gauri Shanker v. M/s. Hindustan Trust (Pvt.) Ltd. and Others (1973) 2 SCC 127; M/s. John Tinson and Co. Pvt. Ltd. and others v. Mrs. Surjeet Malhan and another AIR 1997 SC 1411 – referred to. Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278 – Distinguished. 5. Applicability of Article 65 or Article 110 of the Limitation Act, 1963 on the one hand, and Article 59 thereof, on the other, would depend upon the factual situation involved in a case. A decree for setting aside a document may be sought for in terms of Section 31 of the Specific Relief Act, 1963. Applicability of Article 59 would indisputably depend upon the question as to whether the deed of partition was required to be set aside or not. In the instant case, it was required to be set aside. It is not a case where the deed of partition by reason of purported wrong factual contention raised in the plaint leading to grant of a consent decree was void ab initio. It was not. The effect of it would be that the same was required be set aside. In view of Article 59 of the Limitation Act, the suit was barred by limitation. [para 57] [344-G, 345-B,C,D,E] Prem Singh v. Birbal and Others (2006) 5 SCC 353; M/s. Bay Berry Apartments Pvt. Ltd. & Anr. v. Shobha & Ors. 2006 (10) SCALE 596; and Utha Moidu Haji v. Kuningarath Kunhabdulla and Ors. 2006 (14) SCALE 156 – referred to. G.V. Chandrasekhar, N.K. Verma and Anjana Chandrashekar for the Appellants. S.S. Javali, T.N. Rao, S. Balaji, Madhusmita, V.H. Ron and Gurudatta Ankolekar for the Respondents., 2008(9 )SCR297 , , 2008(9 )SCALE144 , 2008(8 )JT510
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. _3635_ OF 2008 (Arising out of SLP (C) No. 4055 of 2006) Ranganayakamma and another …. Appellants Versus K.S. Prakash (D) by L.Rs. and others …. Respondents JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. This appeal is … Continue reading
Mohammedan Law – ss. 226 and 232 – Suit for pre-emption on the ground of vicinage – On the basis of agreement for sale of the suit property – Entertainability of – Held: Suit not entertainable as no cause of action arose to file the suit – Cause of action would arise only when the suit property is actually sold and not when there is merely an agreement to sell – Transfer of Property Act, 1882 – s. 54. Pre-emption – Right to pre-emption – Nature of – Held: Such right is a weak right – There are no equities in favour of pre-emptor – Courts can not go out of their way to help the pre-emptor – Equity. In the insant matter, the question for consideration was whether a suit for pre-emption on the ground of vicinage could be entertained when only an agreement for sale has been entered into in respect of the suit property. Allowing the appeal, the Court HELD: 1.1 On a plain reading of Sections 226 and 232 of the Mohammedan Law, it is clearly evident that the right of pre-emption can only accrue to an owner of immoveable property when another immoveable property is sold to another person. Section 232 of the Mohammedan Law indicates that sale alone gives rise to pre-emption. In view of the admitted fact that merely an agreement for sale was entered into by appellant No.3 in favour of appellant Nos.1 and 2 in respect of the suit property, the question of exercising any right of pre-emption by the respondents could not arise at all. A suit for pre-emption brought on the basis of such an agreement for sale must be held to be without any cause of action as there was no right of pre-emption in the respondents which could be enforced under the law. [Paras 10 and 11] [233,G-H; 234,D] 1.2 Section 54 of Transfer of Property Act says that a contract for sale does not, of itself, create any interest in or charge on immoveable property. Therefore, where the parties enter into a mere agreement to sell, it creates no interest in the suit property in favour of the vendee and the proprietary title does not validly pass from the vendor to the vendee and until that is completed, no right to enforce pre-emption arises. Therefore, the suit for pre-emption brought on the basis of such an agreement was without any cause of action as there was no right of pre-emption in the respondents which could be enforced under the law. [Para 11] [234,B-D] Radhakishan Laxminarayan Toshniwal, vs. Shridhar Ramchandra Alshi and Ors. AIR 1960 SC 1368 – referred to. 1.3 If ultimately the sale deed is executed, it would be open for the respondents to apply for pre-emption of the suit property, provided that under the law they are permitted to maintain the suit for pre-emption. [Para 15] [235,E] 2. There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. It would be open to the pre-emptee, to defeat the law of pre-emption by any legitimate means, which is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the pre-emptor. [Paras 11 and 12] [234, H; 235,A-B] Radhakishan Laxminarayan Toshniwal vs. Shridhar Ramchandra Alshi and Ors. AIR 1960 SC 1368 – referred to. Case Law Reference AIR 1960 SC 1368 Referred to. Paras11 and 12 Shankar Divate for the Appellant. R.S. Hegde, P.P. Singh, M. Qamaruddin and Irshad Ahmad for the Respondents., 2008(12 )SCR226 , 2008(10 )SCC153 , 2008(11 )SCALE373 , 2008(9 )JT334
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 157 OF 2001 Kumar Gonsusab & Ors. …Appellants VERSUS Sri Mohammed Miyan Urf Baban & Ors …Respondents JUDGMENT TARUN CHATTERJEE, J. 1. This appeal is directed against the judgment and decree dated 5th of November, 1998 passed by the … Continue reading
Specific Relief Act, 1963: s.12 – Applicability of – Specific performance of contract – Agreement of sale of a house – Representation by vendor that he was absolute owner of the house – Receipt of advance money by vendor – Vendor’s wife sought cancellation of agreement on the ground that the vendor was not absolute owner of the house and she owned half share in the house which, by virtue of s.14 of Hindu Succession Act, was received by her on death of her son – Suit for specific performance of contract by vendee – Held: Vendee cannot seek specific performance of contract of entire house, and decree for specific performance can be granted only to the extent of vendor’s share in the house – The husband under such circumstances, in the absence of any express authority from the wife could not alienate or otherwise dispose of her Streedhana property – It was not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor was concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half – Thus, the agreement was not binding on the vendor’s wife – s.12 was not applicable in facts of the case -s.41 of the Transfer of Property Act was also not applicable since it was not the case of the vendee that the vendor was the ostensible owner of the property – Right to invoke s.4 of the Partition Act also not available to the vendee – Transfer of Property Act, 1882 – s.41 – Partition Act, 1893 – s.4 – Hindu Succession Act, 1956 – s.14 – Contract. The original defendant no.1-vendor entered into an agreement of sale with the original plaintiff-vendee in respect of the suit house for a consideration of Rs.1 lac. The vendee paid Rs.10,000/- as advance and agreed to pay remaining consideration of Rs.90,000/- by 20.6.1984 whereupon sale deed was to be executed and registered. On 24.3.1984, the defendant no.2-vendor’s wife sent a notice to the vendee as well as to the vendor calling upon them to cancel the agreement as she held half share in the property having devolved upon her on the death of her son. She also stated in the notice that she was not willing to sell her share and was ready to purchase the share of her husband-vendor. The vendee sent reply to her notice that the agreement was binding on her and notice given by her was in collusion with the vendor. His correspondence with the vendor failed and he filed the suit for specific performance of the agreement against the vendor and his wife. He prayed for a direction to them to execute the sale deed and in the alternative, he prayed for refund of the advance amount along with interest. The vendor and his wife filed separate written statements. The vendor admitted execution of agreement and receipt of advance amount of Rs. 10,000/-. The vendor further averred that he had one son, who had half share in the property; the son died intestate and after his death, his half share devolved upon his wife and, thus vendodr did not have absolute title to the property and, therefore, was unable to execute the sale deed. The trial court decreed the suit with a direction to the vendor and his wife to execute registered sale deed as per the terms of the sale agreement. Aggrieved, the vendor’s wife filed appeal before the High Court. The High Court recorded the findings that the property was ancestral property in which the deceased son had half share on whose death that share devolved upon the vendor’s wife; the vendee could not be said to have any knowledge that the vendor’s wife had half share and in the absence of any express authority from his wife, the vendor could not alienate or otherwise dispose of her share in the property. The High Court finally held that the agreement of sale although covered the entire property but as the vendor had only half share and interest in the property, the decree for specific performance could only be granted to the extent of the vendor’s share in the property. The instant appeals were filed by the legal representatives of the vendee and also by the vendor’s wife challenging the order of the High Court. Dismissing the appeals, the Court HELD: 1. It was not in dispute that the agreement was an agreement of sale and there was concluded contract in this regard between the vendor and vendee. The vendor in his reply to the notice received from the vendee had not disputed the nature of the agreement. As a matter of fact, in view of the admitted position between the parties, particularly, the vendor and the vendee about the agreement, no issue was struck by the trial court in this regard nor any argument was advanced on behalf of the vendor before the trial court that the agreement was not an agreement of sale or that the same did not tantamount to concluded contract. Insofar as the vendor was concerned, he did not challenge the judgment passed by the trial court. It was only vendor’s wife who filed appeal before the High Court. Even before the High Court, no plea was raised by the vendor’s wife or the vendor that the agreement was not a concluded contract for sale of the property. [Paras 15, 16] [784-c; 785-C-e] 2. The finding of the two courts was divergent regarding question whether the property was ancestral property or not. The trial court held that the property was not the ancestral property but the High Court on re-appraisal of the evidence did not agree with that finding. The High Court concluded that under section 14 of the Hindu Succession Act, the share devolved upon the mother and it would become her Streedhana property. The husband under such circumstances, in the absence of any express authority from the wife, cannot alienate or otherwise dispose of her Streedhana property. The High Court correctly considered this aspect and there is no justifiable reason to take a view different from the High Court. [Para 17] [785-F; 786-B-C] 3. As regards applicability of Section 41 of the Transfer of Property Act, 1882, the High Court rightly observed that it was not even the case of the vendee that the vendor was the ostensible owner of the property and, therefore, Section 41 has no application. In view of the findings of the High Court, the conclusion that the vendee is not entitled to seek specific performance of the agreement to the extent of half share of vendor’s wife cannot be faulted. [Para 18] [786-F, G] 4. As regards the question whether the agreement could be enforced against the vendor to the extent of his half share, the terms of the agreement would show that the vendor represented to the vendee that he was absolute owner of the property that fell to his share in the partition effected with his brothers and he did not have any male child. The vendor assured the vendee that excepting him none had got any right over the property and he would obtain the witness signatures of his daughters and get their voluntary consent letters in his favour. It is clear from the evidence that the vendee had no knowledge that vendor’s wife had half share in the property which devolved upon her on the death of her son intestate. Section 12 of the Specific Relief Act, 1963 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in these sub-sections are exhaustive. Section 12 is not attracted in the facts and circumstances of the instant case. The instant case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned, since he had agreed to sell the property in its entirety but it later turned out that the vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. In the facts and circumstances, there was no impediment for enforcement of the agreement against the vendor to the extent of his half share in the property. [Paras 19, 21, 24] [786-H; 787-A, B; 788-F-H] Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517; Manzoor Ahmed Magray v. Ghulam Hassan Aram & Ors. (1999) 7 SCC 703; Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636 – relied on. HPA International v. Bhagwandas Fateh Chand Daswani & Ors. (2004) 6 SCC 537, distinguished. 5. The High Court rightly concluded that Section 4 of the Partition Act, 1893 was not attracted. It is only after the sale deed is executed in favour of the vendee that right under Section 4 of the Partition Act, 1893 may be available. Similarly, insofar as vendee is concerned, he has right to apply for partition of the property and get the share demarcated only after the sale deed is executed in his favour. Section 44 of the T.P. Act is also of no help to the case of vendor’s wife. [Para 26] [797-F] Ghantesher Ghosh v. Madan Mohan Ghosh & Ors. (1996) 11 SCC 446; Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. (2005) 5 SCC 492; Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr. (2005) 10 SCC 728, referred to. 6. The balance sale consideration of Rs. 90,000/- was deposited by the vendee on July 18, 1991 before the trial court and was lying there for more than 19 years. Therefore, there was no merit in the contention of the vendor’s wife that it was not proved that vendee was ready and willing to purchase the property all along. The plea that the decree granted by the High Court would result in hardship since the vendor and vendor’s wife are dead and their 10 daughters had been residing in the property was also not accepted since the facts do not constitute hardship justifying denial of decree for specific performance to the extent of vendor’s half share in the property. [Paras 27, 28] [797-G; 798-D, E] Case Law Reference: (1990) 3 SCC 517 relied on Para 21 (1999) 7 SCC 703 relied on Para 22 (2000) 10 SCC 636 relied on Para 23 (2004) 6 SCC 537 distinguished Para 24 (1996) 11 SCC 446 referred to Para 25 (2005) 5 SCC 492 referred to Para 25 (2005) 10 SCC 728 referred to Para 25 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6088 of 2003. From the Judgment & Order dated 23.12.2002 of the High Cout of A.P. at Hyderabad in AN No. 287 of 1994. WITH C.A. No. 7265 of 2003. Sudha Gupta and A.T.M. Sampath for the appearing parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6088 OF 2003 Kammana Sambamurthy (D) By LRs. …Appellants Versus Kalipatnapu Atchutamma (D) & Ors. …Respondents WITH CIVIL APPEAL NO. 7265 OF 2003 JUDGEMENT R.M. Lodha, J. The original contesting parties are dead. … Continue reading
Legal Services Authorities Act, 1987 – s.21 – Interpretation of – When a criminal case filed u/s.138 of the Negotiable Instruments Act, referred to by the Magistrate Court to Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable – Held: In view of the unambiguous language of s.21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court – The Act does not make out any such distinction between the reference made by a civil court and criminal court – There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil and criminal), Tribunals, Family court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature – Even if a matter is referred by a criminal court u/s.138 of the Negotiable Instruments Act, by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court – Negotiable Instruments Act, 1881- s.138. An important question as to the interpretation of Section 21 of the Legal Services Authorities Act, 1987 arose for consideration in the instant appeal. The question posed was that when a criminal case filed under Section 138 of the Negotiable Instruments Act, 1881 referred to by the Magistrate Court to Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable. Allowing the appeal, the Court HELD: 1.1. The Legal Services Authorities Act, 1987 empowers Legal Services Authorities at the District, State and National levels, and the different committees to organize Lok Adalats to resolve pending and pre-litigation disputes. It provides for permanent Lok Adalats to settle disputes involving public utility services. Under the Act, “legal services” have a meaning that includes rendering of service in the conduct of any court- annexed proceedings or proceedings before any authority, tribunal and so on, and giving advice on legal matters. The Act provides for a machinery to ensure access to justice to all through the institutions of legal services authorities and committees. These institutions are manned by Judges and judicial officers. Parliament entrusted the judiciary with the task of implementing the provisions of the Act. [Para 7] [454-G-H; 455-A-E] 1.2. Section 21 of the Act contemplates a deeming provision, hence, it is a legal fiction that the “award” of the Lok Adalat is a decree of a civil court. In the case on hand, the Courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties in a case referred by a criminal court under Section 138 of the N.I. Act, and by virtue of the deeming provision it has to be treated as a decree capable of execution by a civil court. [Paras 8, 14] [455-F; 460-G- H; 461-A-B] 1.3. The “award” of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by the parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. [Para 15] [461-C-D] 1.4. In conclusion, the following propositions emerge: a) In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court. b) The Act does not make out any such distinction between the reference made by a civil court and criminal court. c) There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil and criminal), Tribunals, Family court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature. d) Even if a matter is referred by a criminal court under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court. [Para 17] [461-F-H; 462-A-C] Subhash Narasappa Mangrule (M/S) and Others vs. Sidramappa Jagdevappa Unnad 2009 (3) Mh.L.J. 857 and M/s Valarmathi Oil Industries & Anr. vs. M/s Saradhi Ginning Factory AIR 2009 Madras 180 – approved. State of Punjab & Anr. vs. Jalour Singh and Ors. (2008) 2 SCC 660: 2008 (1) SCR 922; B.P. Moideen Sevamandir and Anr. v. A.M. Kutty Hassan (2009) 2 SCC 198: 2008 (17) SCR 905 and P.T. Thomas vs. Thomas Job (2005) 6 SCC 478: 2005 (2) Suppl. SCR 20 – relied on. Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Others (2003) 2 SCC 111: 2002 (4) Suppl. SCR 517 and Ittianam and Others vs. Cherichi @ Padmini (2010) 8 SCC 612: 2010 (8) SCR 1135 – referred to. Case Law Reference: 2009 (3) Mh.L.J. 857 approved Paras 10,14 AIR 2009 Madras 180 approved Paras 11, 14 2002 (4) Suppl. SCR 517 referred to Para 12 2010 (8) SCR 1135 referred to Para 13 2008 (1) SCR 922 relied on Para 15 2008 (17) SCR 905 relied on Para 15 2005 (2) Suppl. SCR 20 relied on Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10209 of 2011. From the Judgment & Order dated 24.11.2009 of the High Court of Kerala at Ernakulam in WP (C) No. 33013 of 2009. Prashanth P., Prachi Bajpai, S.K. Balachandran, T. Harish Kumar for the Appellant. V. Giri (AC) for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10209 OF 2011 (Arising out of SLP (C) No.2798 of 2010) K.N. Govindan Kutty Menon …. Appellant (s) Versus C.D. Shaji …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave … Continue reading
there were no goods in the vehicle at the time of said accident, the deceased cannot be held to be owner of the goods which he proposes to purchase for doing business after reaching the destination. By no stretch of imagination it can be said the deceased was travelling in the goods vehicle as owner of the goods. The inevitable conclusion would be that the deceased was travelling in the offending vehicle not as owner of the goods, but, as a gratuitous passenger. Hence, the insurer is not liable to pay any compensation to the claimants. The order of the Tribunal below is set aside and the appeal filed by the insurance company is allowed.
THE HON‘BLE SRI JUSTICE C. PRAVEEN KUMAR C.M.A. No.369 OF 2004 14.09.2012 United India Insurance Co. Ltd Mohd. Hussain and others <GIST: HEAD NOTE: Counsel for Appellant: Sri E. Venugopal Reddy Counsel for Respondents: Sri Radhive Reddy ?Cases referred 1 (2008) 8 SCC 246 2 (2007) 7 SCC 56 3 (2003) 2 SCC 223 4 … Continue reading
advocatemmmohan 