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Indian Succession Act, 1925 – Will – Execution of – Testator bequeathing property in absolute terms in favour of her daughters – Latter part of bequest purporting to vest the same property in their female offspring – Interpretation of – Held: It is clear from the Will that testatrix had made an unequivocal and absolute bequest in favour of her daughters – By the latter part all such property as remained available in the hands of the legatees at the time of demise, were to devolve upon their female offspring – Latter part is redundant since it was repugnant to the clear intention of testatrix in making an absolute bequest in favour of her daughters – Stipulation made in the second part did not in the least affect the legatees being the absolute owners of the property bequeathed to them – Upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by testatrix – Will. The original owner bequeathed certain properties in favour of her daughters `SA’ and `SR’. It was stipulated that after death of `SA’ and `SR’ the properties would devolve upon their female offsprings. `SA’ died intestate. The appellants, sons of `SA’, took possession of the property bequeathed in favour of `SA’. The respondents-daughter of `SA’ and others filed a suit for declaration of title over the suit property and for recovery of possession in view of the stipulation contained in the Will. The trial court dismissed the suit. The High Court set aside the order passed by the trial court and decreed the suit. Therefore, the appellants filed the instant appeal. =Allowing the appeal, the Court HELD:1.1 It is evident from a careful reading of Sections 84, 85, 86 and 87 of the Indian Succession Act, 1925 that while interpreting a Will, the courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. The courts would also interpret a Will to give effect to the intention of the testator as far as the same is possible. Each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that meaning of any clause in a Will must be collected from the entire instrument and all parts should be construed with reference to each other. [Para 16] [821-F-H; 822-A] 1.2 It is evident from a careful reading of clause 6 of the Will that the same makes an unequivocal and absolute bequest in favour of daughters of testatrix. The use of words like “absolute rights of sale, gift, mortgage etc.” employed by the testatrix make the intention of the testatrix abundantly clear. The testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only. There is no dispute that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. The submission that the absolute estate of the `SA’ ought to be treated only as a life estate though attractive on first blush, does not stand closer scrutiny. It is said so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the instant case, the testatrix. The intention of the testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression “after demise of my daughters the retained and remaining properties shall devolve on their females children only” does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted does not detract from the absolute nature of the bequest in favour of the daughters. [Paras 6 and 17] [815-A-B; 822-C-D] 1.3 All that the testatrix intended to achieve by the latter part of clause 6 was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. [Para 17] [823-A-F] 1.4 The judgment and order passed by the High Court is set aside and that passed by the trial court restored. [Para 18] [823-G] Sasiman Chowdhurain and Ors. vs. Shib Narain Chowdhury and Ors. AIR 1922 PC 63; (Kunwar) Rameshwar Bakhsh Singh and Ors. v. (Thakurain) Balraj Kuar and Ors. AIR 1935 PC 187; Radha Sundar Dutta v. Mohd. Jahadur Rahim and Ors. 1959 SCR 1309; Ramkishore Lal v. Kamal Narain (1963) Supp 2 SCR 417; Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors. (2002) 2 SCC 468; Pearey Lal v. Rameshwar Das (1963) Supp 2 SCR 834; Ramachandra Shenoy and Anr. v. Mrs. Hilda Brite and Ors. 1964 (2) SCR 722; Kaivelikkal Ambunhi (Dead) By Lrs. and Ors. v. H. Ganesh Bhandary (1995) 5 SCC 444 – referred to. Case Law Reference: AIR 1922 PC 63 Referred to. Para 4 AIR 1935 PC 187 Referred to. Para 8 1959 SCR 1309 Referred to. Para 9 (1963) Supp 2 SCR 417 Referred to. Para 10 (2002) 2 SCC 468 Referred to. Para 11 (1963) Supp 2 SCR 834 Referred to. Para 12 1964 (2) SCR 722 Referred to. Para 13 (1995) 5 SCC 444 Referred to. Para 14 CIVIL APPELLATE JURISDICITION : Civil Appeal No. 2758 of 2004. From the Judgment & Order dated 4.3.200 of the High Court of Andhra Pradesh at Hyderabad in Appeal No. 1530 of 1998. Y. Raja Gopala Rao for the Appellants. I. Venkatanarayana, A. Chandramohan, T. Anamika for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.2758 OF 2004 Sadaram Suryanarayana & Anr. …Appellants Versus Kalla Surya Kantham & Anr. …Respondents JUDGMENT T.S. THAKUR, J. 1. This appeal by special leave is directed against an order dated 4th March, 2003 passed by the High Court of Andhra Pradesh whereby … Continue reading
Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by limitation as encroachment on a public street is a continuing wrong and therefore, there existed a continuing cause of action – S.22 of the Limitation Act would apply – Code of Civil Procedure, 1908. Code of Civil Procedure, 1908: Order I Rule 8 – Suit filed alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree challenged, on the ground that the suit was bad for non-compliance of the provisions of Order I Rule 8 – Held: Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected – Since the affected person himself had filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 – Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 – In that view of the matter, the suit filed was maintainable. Suit filed by respondents alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree affirmed by First Appellate Court as also High Court – Challenge to, on the ground that it was not proved that the suit land was a public street in which encroachment was made by the appellant-defendant – Held: On appreciation of the evidence, all the three courts below namely the High Court, the First Appellate Court as also the trial court held that the disputed suit land is a part of the public street where the appellant had encroached upon – The aforesaid findings are findings of fact – The evidence on record proved that there existed a public street of 10 feet width and also that the appellant had encroached upon the suit property consisting of the aforesaid street of 10 feet width – Decree passed by the trial court accordingly confirmed. The respondents filed civil suit alleging that appellant-defendant and another defendant had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment, and accordingly prayed for mandatory injunction against the defendants. The trial court decreed the suit and issued permanent injunction directing the removal of unauthorized construction. The judgment and decree passed by the trial Court was affirmed by the First Appellate Court (Additional District Judge), and further affirmed by the High Court in second appeal. In the instant appeal, the appellant challenged the judgments and decrees passed by the courts below on three grounds, viz. 1) that the suit itself was barred by limitation; 2) that the suit was bad for non-compliance of the provisions of Order I Rule 8 of the CPC and 3) that no official document was placed and no official witness was examined to prove and establish that the suit land was a public street in which encroachment was made by the appellant. =Dismissing the appeal, the Court HELD:1.1. The records placed disclose that the appellant in his written statement took up a plea that the suit is barred by limitation. However, despite the said fact no issue was framed nor any grievance was made by the appellant for non-framing of an issue of limitation. The appellant did not make any submission before the trial court and the first appellate court regarding the plea of limitation. The said plea was made before the High Court which held that although such a plea was not raised either before the trial court or before the appellate court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act which places an obligation upon the Court to discuss and consider such a plea despite the fact that no such plea was raised and argued before the Trial Court as also before the First Appellate Court. The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action. The records disclose that initially a complaint under Section 133 of Cr.PC was filed which was pursued with all sincerity upto the High Court. But the High Court held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. Immediately thereafter the aforesaid suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, there is no merit in the said contention. [Paras 15, 16, 17] [1086-G-H; 1087-A-E] 1.2. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury. [Para 18] [1087-F-H; 1088-A] 1.3. Section 22 of the Limitation Act, 1963, provides that “in case of a continuing breach of contract or in case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.” In an earlier case, this court had held that when a right of way is claimed whether public or private over a certain land over which the tort-feaser has no right of possession, the breaches would be continuing, to which the provisions of Section 22 of the Limitation Act, 1963, would apply. Therefore, the plea that the suit is barred by limitation has no merit at all. [Para 19] [1088- C-E] Sankar Dastidar v. Shrimati Banjula Dastidar and Anr., AIR 2007 SC 514 – relied on. 2. Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since the affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non- compliance of the provisions of Order I Rule 8 of the CPC. Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 CPC. In that view of the matter, the suit filed by the plaintiff/respondent No. 1 was maintainable. [Paras 20, 22 and 23] [1088-F-G; 1089-B-D] Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur v. Smt. Chhoti and Ors., AIR 1990 SC 396 – referred to. 3.1. The suit was initially instituted against two defendants. The appellant was defendant No. 2 in the said suit. So far as defendant No. 1 is concerned, the records disclose that the Panchayat of the area took a decision that both of them have encroached upon a public property and the street and therefore they should remove the encroachment. It is disclosed from the records that pursuant to the aforesaid decision of the Panchayat, the defendant No. 1 removed his encroachment after admitting that he had also encroached upon some area of the 10 feet wide street which fact he admitted before the panchayat and later on he removed the said encroachment. The aforesaid fact is established from the statements of PW-1, PW-5 and PW-6 who were present and participated in the said Panchayat and also corroborated the said admission before the Panchayat. [Paras 24] [1089-E-H; 1090-A] 3.2. In all 8 witnesses were examined by the plaintiff respondent No.1. PW-3, who was examined in the suit proved the report of the BDO who had visited the disputed property on 18.1.1995 after which he also submitted a report certifying that an encroachment has been made by the appellant over the disputed street. PW-4, the original owner of the entire area, had specifically stated in his evidence that he had carved out a colony in the year 1981-82 and he had sold the plots to the plaintiff as well as defendants and other inhabitants of the village and towards eastern side of the plot of the defendant/appellant he had left a street of 10 feet width. As against the aforesaid evidence adduced on behalf of the plaintiff/respondent No. 1, the appellant examined himself as DW-1 wherein he only took a stand that disputed property is not a part of the street and that after purchasing the plot he had constructed the house and despite the said fact no objection was taken and therefore it cannot be said that he had constructed a house also on a part of the said disputed suit property. On appreciation of the aforesaid evidence, all the three courts namely the High Court, the First Appellate Court as also the trial court held that the aforesaid disputed suit land is a part of the public street where the appellant has encroached upon by constructing a part of the house. The aforesaid findings are therefore findings of fact. Public Officer namely Patwari was examined who had proved the report submitted by the BDO stating that part of the suit property is a public street. [Paras 26, 27] [1090-E- G] 3.3. The site plan (Ext. PW-7A) filed by the plaintiff/respondent proves and establishes that there is a public street of 10 feet width. In all the sale deeds of the area as disclosed from the statement of PW-4, the aforesaid street of 10 feet width is shown and the aforesaid evidence go unrebutted. Thus there exists a street of 10 feet width. It is also proved from the evidence on record that the appellant has encroached upon the suit property consisting of the aforesaid street of 10 feet width. That being the position, there is no infirmity in the judgment and decree passed by the Trial Court and affirmed by the First Appellate Court and by the High Court in the Second Appeal. [Para 28] [1090-H; 1091-A-B] 4. The decree passed by the trial court is confirmed. If the appellant fails to vacate and remove the unauthorized encroachment within a period of 60 days, it will be open for the plaintiff/respondent No. 1 to get the decree executed in accordance with law. [Para 29] [1091-C-D] Case Law Reference: AIR 2007 SC 514 relied on Para 19 AIR 1990 SC 396 referred to Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1042 of 2011. From the Judgment and Order dated 31.07.2009 of the High Court of Punjab and Haryana at Chandigarh in RSA No. 2698 of 2008. Anoop G. Choudhary and J. Chaudhary, Devendra Kr. Singh, Ajay A. and Prem Sunder Jha for the Appellant. Jasbir Singh Malik, Ekta Kadian, Devender Kumar Sharma and S.K. Sabharwal for the Respondents
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1042 OF 2011 [Arising out of SLP (C) No. 35813 of 2009] HARI RAM ….Appellant Versus JYOTI PRASAD & ANR. … Respondents JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. Leave granted. 2. By this judgment and order, we propose to dispose of … Continue reading
will deed= suspicious circumstances = alterations =Sections 63 and 71 of the Act which have bearing on the decision of the first question read as under: “63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7548 OF 2002 Dayanandi … Appellant Versus Rukma D. Suvarna and others … Respondents J U D G M E N T G.S. Singhvi, J. 1. This appeal is directed against the judgment of the learned Single Judge of the Karnataka High … Continue reading
Pleadings -Written Statement-Direction for filing within specific time-Delayed filing-Due to bona fide mistake of the party-On realization of the mistake application made to extend the time for filing-Rejection of application-On appeal, held: The party entitled to extended time for filing since his bona fide proved-Code of Civil Procedure, 1908-Order VIII. Civil Judge had dismissed the petition for restoration of the suit which had been decreed ex- parte. First appeal thereagainst was allowed on payment of cost, with direction to the appellant to file the Written Statement within 2 weeks. According to the appellant he was informed by his advocate that Written Statement was to be filed within 2 months. Accordingly he filed the Written Statement within 2 months and also offered the cost. The counsel for the other party refused to accept the cost on the ground of delayed payment. On going through the certified copies, appellant noticed that the time granted by High Court was 2 weeks and not 2 months. Hence he moved the High Court seeking extension of time. The same was dismissed summarily. Hence the present appeal. =Allowing the appeal, the Court HELD: The appellant had indicated sufficient reasons as to why there was non-compliance with the order of the High Court. The bona fides have been spelt out in detail and, in fact, there was no reply denying the averments made by the plaintiff who was the opposite party no. 1 in the application. That being so, the High Court was not justified in summarily rejecting the application. [Paras 9 and 10] [631-E-F] S.N. Bhat for the Appellant.
CASE NO.: Appeal (civil) 5809 of 2000 PETITIONER: M. Vishweshwara Shastry RESPONDENT: M. Gopalakrishna Bhat & Ors DATE OF JUDGMENT: 07/03/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U D G M E N T Dr. ARIJIT PASAYAT, J. Appellant calls in question legality of the order passed by a learned Single … Continue reading
Specific Relief Act, 1963 – ss.13(1)(c) and 20 – Agreement to sell – Failure to execute sale deed – Suit for specific performance and, in the alternative, for refund of earnest money – Trial court partly decreeing the suit and directing refund of earnest money – First appellate court granting relief of specific performance – High Court affirming the decree passed by first appellate court – Held: Grant of decree of specific performance is lawful and also justified on the facts as well as equity – Even if the property was mortgaged to Co-operative Society, there is no bar to transfer the property in view of s. 48(d) of Co-operative Societies Act and ss. 12(1)(c) and 12(2) of Resettlement Act – Purchaser has the right to compel the seller to redeem the mortgage and obtain a valid discharge and then specifically perform the contract where the property is encumbered for an amount not exceeding purchase money – Increase in the price of suit property cannot be a ground for denying decree of specific performance – Maharashtra Co-operative Societies Act, 1960 – s. 48(d) – Maharashtra Re- settlement of Project Displaced Persons Act, 1976 – ss. 12(1)(c) and 12(2) – Equity. The plaintiff-respondent entered into an agreement with the defendants- appellants whereby the latter agreed to sell the suit land to the former. A sum of Rs. 10,000/- was paid at the time of agreement. As the appellants failed to execute the sale deed in favour of the respondent, the latter filed the suit for specific performance and, in the alternative, for refund of earnest money along with damages. The trial court concluded that there was no intention on the part of the defendants to sell the property and partially decreeing the suit, directed the defendants to pay a sum of Rs. 10,000/- with interest @ 6% p.a. and denied the relief of specific performance of contract. The first appellate court setting aside the decree passed by the trial court, passed the decree for specific performance upon grant of permission by the competent authority as contemplated u/s. 12(c) of Maharashtra Re-settlement of Project Displaced Persons Act, 1976 and also by the Co-operative Society as contemplated u/s. 47(2) of Maharashtra Co-operative Societies Act, 1960. The High Court affirmed the decree passed by the first appellate court. In the instant appeal, the appellant-defendant contended that no decree for specific performance could have been passed because the property could not be transferred in favour of the respondent in view of the restriction u/s. 48 of Co-operative Societies Act and u/ss. 12(1)(c) 12(2) and 12(3) of the Re-settlement Act; that the courts below failed to appreciate the evidence in its correct perspective; and that the value of the suit property had increased tremendously. Respondent-plaintiff volunteered to pay increased amount towards the consideration i.e. Rs. 1,50,000/- instead of Rs. 40,000/- in view of the increased price of the land. =Dismissing the appeal, the Court HELD: 1. All the three courts have returned all the findings of fact in favour of the respondent. Such findings are based upon proper appreciation of evidence and no legal infirmity can be traced in them. It is hardly permissible for Supreme Court to go into such questions of facts alone, in exercise of its jurisdiction under Article 136 of the Constitution of India. [Para 11] [322-a-b] 2.1 It is not correct to say that the land could not have been transferred in favour of the respondent in view of the restriction contained in the provisions u/s. 48 (d) of Maharashtra Co-operative Societies Act, 1960 and u/ss. 12(1) (c), 12(2) and 12(3) of Maharashtra Re-settlement of Project Displaced Persons Act, 1976. The appellants did not adduce any evidence that the property in question had been mortgaged or was under the charge of the Co-operative Society. The appellants did not place any such argument or specific plea. In fact, no such issue was either claimed or framed in this regard. [Paras 10 and 12] [323-C-D] 2.2 Besides, the provisions of clause (d) of Section 48 of Maharashtra Co- operative Societies Act, 1960 places a conditional restriction upon alienation of the whole or any part of the land or interest in the property unless and until the whole amount borrowed by the member of the Society has been repaid with interest. Once the loan of the Society has been cleared, it obviously cannot have any objection to transfer the property. No effort was made by the appellants to bring on record any evidence to show as to what was the extent of money currently due to the Society, if at all, and for what amount the property had been mortgaged in its favour. In the absence of any specific evidence in that regard, the Court will have to draw an adverse inference against the appellants for not producing before the court the best available evidence. In any case, the appellants cannot take advantage of their own wrong. [Para 12] [322-D-G] 2.3 As regards the plea that the land could not be transferred in favour of the respondent in view of the restriction contained in Sections 12(1)(c) and 12(2) of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976, a bare reading of the provisions shows that the Government can grant permission for transfer of the property, subject to such conditions, as it may deem fit and proper. Again, the appellants have neither claimed any issue nor led any evidence to substantiate even this plea. [Paras 12 and 13] [323-G-H; 324-A-B] Nathulal v. Phool Chand AIR 1970 SC 546 – relied on. 3.1 Section 13(1)(c) of the Specific Relief Act, 1963 clearly postulates that where a person contracts to sell an immovable property with an imperfect title and the property is encumbered for an amount not exceeding the purchase money, the purchaser has the right to compel the seller to redeem the mortgage and obtain a valid discharge and then specifically perform the contract in its favour. [Para 13] [323-D-E] 3.2 Section 20 of the Specific Relief Act vests the court with a wide discretion either to decree the suit for specific performance or to decline the same. The discretion of the Court has to be exercised as per the settled judicial principles. In the instant case, it is the appellants who have taken advantage of the pendency of the proceedings. They have used the sum given towards earnest money for all this period as well as have enjoyed the fruits of the property. It is, therefore, not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the respondent. Besides, the respondent has agreed to pay much higher consideration than what was payable in terms of the agreement of sale. [Paras 14 and 15] [323-F; 325-B-E] Bal Krishna vs. Bhagwan Das (2008) 12 SCC 145; Mohammadia Cooperative Building Society Ltd. vs. Lakshmi Srinivasa Cooperative Building Society Ltd. and Ors. (2008) 7 SCC 310; P.V. Joseph’s son Mathew vs. N. Kuruvila’s Son AIR 1987 SC 2328 – distinguished. 4. The onus to prove that the respondent had obtained signatures of the appellants on blank papers on the pretext of advancing a loan of Rs.2,000/- was entirely upon the appellants. No evidence, much less cogent documentary or oral evidence, was led by the appellants to discharge this onus. The averment has rightly been disbelieved by the courts concerned. The appellants led no evidence and brought nothing to the notice of this Court, even during the course of the hearing, in support of their case. [Para 16] [325-E-H] 5. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. The appellants have neither filed cross- objections nor any appeal challenging the findings recorded by the trial court. In fact, the entire conduct of the defendant-appellants shows that they have not only failed to prove their claim before the courts of competent jurisdiction but have even not raised proper pleas in their pleadings. [Para 16] [325-G-H; 326-A-B] 6.1 Increase in the price of the land in question cannot be a ground for denying the decree of specific performance to the respondent. The first appellate court, by a well reasoned judgment, has granted the relief of specific performance instead of only granting refund of money, as given by the trial court. The judgment of the first appellate court has been upheld by the High Court and there is no reason whatsoever to interfere with the concurrent findings of facts and law as stated in the judgment under appeal. [Para 17] [326-C-D] 6.2 The respondent has volunteered to pay a sum of Rs.1,50,000/- instead of Rs.40,000/- as the total sale consideration. This offer of the respondent is very fair. Even from the point of view of equity, the offer made by the respondents, substantially balances the equities between the parties. Therefore, no prejudice will be caused to the appellants in any manner whatsoever. [Paras 17 and 18] [326-D-E; 326-F-G] Case Law Reference: AIR 1970 SC 546 Relied on. Para 13 2008 (12) SCC 145 Distinguished. Para 14 2008 (7) SCC 310 Distinguished. Para 14 AIR 1987 SC 2328 Distinguished. Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6509 of 2005. From the Judgment & Order dated 17.07.2001 of the High Court of Judicature at Bombay bench at Aurangabad in Second Appeal No. 96 of 2001. Miten Mahapatra, Ravindra Keshavrao Adsure for the Appellants. Nitin Kumar Gupta (for Shivaji M. Jadhav) for the Respondent.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6509 OF 2005 Laxman Tatyaba Kankate & Anr. …Appellants Versus Smt. Taramati Harishchandra Dhatrak …Respondent JUDGMENT Swatanter Kumar, J. 1. Civil Judge, Senior Division, Shrirampur, District Ahmednagar (for short `the Trial Court’), in a suit for specific performance and in the alternative for … Continue reading
Suit: Suit for possession and mesne profits – One brother entrusting his share of property in land and house to another brother of looking after the property and also to give him the usufructs/income therefrom – On demand, the other brother refusing to give possession and mesne profits – Trial Court decreeing the suit for possession and mesne profits – Upheld by Appellate Court – High Court setting aside the concurrent findings of facts – On appeal, Held: The High Court has not examined the pleadings of the parties and evidence on record in proper perspective – The defendant is guilty of taking entirely dishonest defences before the trial Court – Court should always effectively discard such a dishonest conduct – The defendant did not have any case either in law or equity – Impugned judgment of High Court cannot be sustained – Hence set aside. `S’ and `J’ are two brothers who had inherited some agricultural land and an ancestral house from their father. They were jointly cultivating the land and occupied the ancestral house jointly. `S’ went to his maternal uncle’s house to look after his property, and requested his brother `J’ to look after his share of the property and to give him to usufruct or income from his share of the property. `S’ returned back from his uncle’s house and demanded the possession of his share in the property and the income derived therefrom, but `J’ did not pay any attention to his request. `S’ gave a notice to `J’ and since there was no response, he filed a civil suit claiming possession and mesne profits. The Civil Judge decreed the suit. The First Appellate Court upheld the judgment of the trial court and observed that the trial court was right in holding it was not proved that the defendants’s title over the suit land has been perfected by adverse possession and ouster of the plaintiff to his knowledge for more than 12 years. On second appeal, High Court set aside the concurrent findings of facts of the courts below. Hence the appeal. =Allowing the appeal, the Court HELD: 1.1. The High Court erroneously set aside the concurrent findings of facts of the two well reasoned judgments of the courts below. [Para 15] [417-C] 1.2. The High Court has not examined the pleadings of the parties and evidence on record in proper perspective. The High Court ought to have appreciated that the plaintiff while leaving the village asked his brother (defendant) that he should look after the land which was in the share of the plaintiff also and keep the account of usufruct or income from the property of the plaintiff. The plaintiff had always remained a co-owner of the property in question. While leaving the village he asked his brother to look after the property in his absence. From that it can never be construed that the plaintiff at any point of time did not remain co-owner of the property or surrendered his interest in the property. The defendant is guilty of taking entirely dishonest defences before the trial court. The court should always effectively discard such a dishonest conduct. [Para 14] [416-G-H; 417-A-B] 1.3. The impugned judgment of the High Court is wholly unsustainable, illegal, perverse and against the norms of any civilized society. The judgment of the High Court has demolished the entire fiber of joint family system of our country and has put premium on the dishonesty of the defendant and the same deserves to be set aside. It is unfortunate if one brother cannot trust his own brother even to this extent then how can peace and tranquility prevail in the society. The saddest part is that the High Court while setting aside the concurrent findings of the two courts has put judicial seal of approval on such a dishonest conduct of the defendant. The impugned judgment of the High Court cannot be sustained and is accordingly set aside. The defendant did not have any case either in law or equity. [Para 16] [417-D-F] P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 and Corea v. Appuhamy 1912 AC 230 (C), referred to. Case Law Reference: AIR 1957 SC 314 referred to Para 7 1912 AC 230 (C) referred to Para 7 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 829 of 2002. From the Judgment & Order dated 24.08.2000 of the High Court of Madhya Pradesh, Indore Bench in Civil Second Appeal No. 103 of 1982. K.K Rai and Amboj Kumar (for Krishnanand Pandeya) for the Appellants. B.S. Banthia and Vikas Upadhyay for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.829 OF 2002 Bonder & Anr. … Appellants Versus Hem Singh (dead) by LRs. & Ors. … Respondents JUDGMENT Dalveer Bhandari, J. 1. This appeal is directed against the judgment and decree passed by the High Court of Madhya Pradesh, Indore Bench at … Continue reading
Consent decree-Legal effect thereof-Compromise not vitiated by fraud, misrepresentation, misunderstanding or mistake-Decree passed thereon- Whether operates as res judicata- Civil Procedure Code-(Act V of 1908)–Order II, rule 2(3) -Relinquishment Of claim in a prior suit- Subsequent suit barred in respect of the claim so omitted. = It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Where a compromise is found, not to be vitiated by fraud, Misrepresentation, 100 misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. Where the plaintiff confines his claim to account for a period up to a certain date only, he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II, rule 2 (3) of the Code of Civil Procedure lays down that if a person omits, except with the leave of the Court, to he sue for all reliefs to which he is entitled, he shall not afterwards sue for any reliefs so omitted.
PETITIONER: SHANKAR SITARAM SONTAKKE AND ANOTHER Vs. RESPONDENT: BALKRISHNA SITARAM SONTAKKE AND OTHERS. DATE OF JUDGMENT: 12/04/1954 BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MAHAJAN, MEHAR CHAND (CJ) BOSE, VIVIAN CITATION: 1954 AIR 352 1955 SCR 99 CITATOR INFO : C 1991 SC2234 (41) ACT: Consent decree-Legal effect thereof-Compromise not vitiated by fraud, misrepresentation, misunderstanding or … Continue reading
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