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Hindu Succession Act, 1956 – s. 14 – Rights of female Hindu under – Held: Any property of a female Hindu is her absolute property – She has full ownership over any property that she has acquired on her own or as stridhana – She may dispose of the same as per her wish, and the same shall not be treated as a part of the joint Hindu family property – There is no presumption that of joint family property, and there must be some strong evidence in favour of the same – On facts, propositor after marriage lived in the paternal house of his wife (`P’) – `P’ was gifted a property by her father by a gift deed at the time of marriage, and continued to be in possession and purchased more properties from the income of the land gifted to her – Propositor except having some income from tenanted land had no personal income nor agricultural income which he could utilize for purchase of any property – Suit for partition by son of `P’ alleging that the entire property was a joint family property – Trial court rightly held that lands other than the tenanted portion as occupied by propositor, were the absolute self acquired properties of `P’ which she had purchased/acquired from the income and funds from the lands gifted by `P’, whereas the order of the High Court that the properties to the suit were joint family properties and the parties to the suit were entitled for 1/3rd share in those properties, set aside. `S’ and `P’ got married in 1924 and at the time of the marriage, the father of `P’ gifted her land A7 under a Gift Deed. `S’ after his marriage, continued to reside in his in-laws house and during his life time, he had no other source of income except from the tenanted lands. `P’ purchased certain lands A(4)-A(6) under a Sale Deed from the income of the land gifted to her by her father. Thereafter, with the income from the said two lands, `P’ purchased another land A(8)-(12). `S’ died in the year 1951 leaving behind four sons and one daughter-`M’ (appellant-defendant), `N’ (respondent-plaintiff), `B’ (deceased); and `SN’ and `C’ (pre-deceased). In her life time `P’ relinquished her share in land A(4)-A(6) in favour of the appellant. Thereafter, subsequent to an oral partition, she gave one part of the property A(8)-A(12) to the respondent and other to legal heirs of `B’. In 1984, `P’ executed a will of `Stridhana’ land to her daughter, `SN’. Thereafter `P’ died. The respondents filed a suit for partition seeking separate possession of 1/3rd share each alleging that the entire property is the joint family property and not the personal property of `P’. The trial court held that except tenanted portion the said properties were self acquired properties of `P’. The High Court held that the properties described in the suit are joint family properties and the parties to the suit are entitled for 1/3rd share in those properties. Therefore, the appellant filed the instant appeal. Allowing the appeal, the Court HELD: 1. Section 14 of the Hindu Succession Act, 1956 clearly mandates that any property of a female Hindu is her absolute property and she, therefore, has full ownership. The Explanation to sub-section (1) further clarifies that a Hindu woman has full ownership over any property that she has acquired on her own or as stridhana. As a consequence, she may dispose of the same as per her wish, and that the same shall not be treated as a part of the joint Hindu family property. There is no presumption that of joint family property, and there must be some strong evidence in favour of the same. [Paras 21 and 22] [451-E-G] Appasaheb Chamdgade v. Devendra Chamdgade and Ors. (2007) 1 SCC 521 – referred to. 2.1 The High Court did not accept the findings and conclusion reached by the trial court. The High Court wrongly shifted the burden of proving that the said lands were a part of the self acquired property of `P’ and not a part of the joint family property of the appellants-defendents, when there was no affirmative proof of anything contrary. The High Court erred in shifting the burden of proof on the appellants, especially when there was nothing on record either by way of oral or documentary evidence produced by the respondents-plaintiffs before the trial court. [Para 13] [446-F-H] 2.2 Suit Land A(7) was `stridhana’ property of `P’. This property was gifted to her by her father under a registered Gift Deed in 1924. She was the owner of the said land. She continued to be in possession of the said land till she bequeathed the same in favour of defendant No.5 under a Will dated 30.06.1984. On the death of `P’ and on the basis of the said Will, the legatee-defendant No.5 claims she became owner of the said land which was noted in the Revenue Records. The Will and the Revenue entries made were questioned by the plaintiffs and successfully proved that the said Will was not executed by `P’. Therefore, defendant No.5 cannot claim title over A(7) under the Will and this property cannot be brought into the hotchpotch of the joint family property and would not be available for partition. Stridhana belonging to a woman is a property of which she is the absolute owner and which she may dispose of at her pleasure, if not in all cases during coverture, in all cases during widowhood. Since the plaintiffs proved that `P’ had not alienated the property by executing a Will in favour of defendant No. 5 during her lifetime, the property is the absolute property of `P’ and would not be available for partition among the members of joint family since it does not partake the character of joint family property. [Para 18] [448-E-H; 449-A-B] 2.3 As regards the Suit Schedule properties Item No.A(4) to A(6), it is the case of the plaintiffs that the said properties were purchased by `S’, father of the plaintiffs and the defendants under a Sale Deed dated 05.10.1944, but, in the name of his wife `P’ from and out of the income of the tenancy lands A(1) to A(3) for the purpose of the joint family for which he was also the Karta of the family. However, it is the case of the contesting defendants that the said property is the self acquired property of `P’ from and out of her income derived from the property gifted to her by her father in the year 1924; that `S’ was the tenant of the property A(1) to A(3) only from the year 1947 and, therefore, plaintiffs cannot claim that from out of the income of the property A(1) to A(3), lands in item A(4) to A(7) were purchased. It has come in evidence of the contesting defendants that propositor `S’ was the tenant of the lands A(1) to A(3) only from the year 1947. The same was not disputed by the plaintiffs by leading any other cogent evidence to prove that `S’ was the tenant of the lands A(1) to A(3) even prior to 1944, the date of the Sale Deed. In the absence of any evidence, much less cogent and reliable evidence, it is difficult to accept the version of the plaintiffs that the suit schedule A(4) to A(6) should be put into common hotch potch and partitioned by meters and bounds. [Para 19] [449-C-G] 2.4 As regards the lands at Item A(8) to A(12), it is the case of the plaintiffs that on the death of propositor `S’, joint family continued and during its continuance, agricultural lands which is now sub-divided as items A(8) to A(12) came to be purchased out of the joint family funds, but, in the name of `P’, since she was eldest member of the joint family at the relevant point of time. The oral evidence was led in support of the assertion made in the plaint. The plaintiffs did not produce any other evidence in support of the claim so made. The defence pleaded by the defendants, apart from others, is that `P’ had her independent source of income from A(7) lands. She, with the aid of the said income, acquired not only A(4) to A(6) but also A(8) to A(12) lands and the tenancy lands was held by joint family. It is also contended by them that propositor `S’, after marrying `P’, lived in the paternal house of his wife `P’, which fact is not denied by the plaintiffs, and `S’ had no personal income nor agricultural income which he could utilize for purchase of any property, much less A(8) to A(12) properties. The trial court, after considering the entire evidence on record came to the conclusion that lands A(8) to A(12) is the absolute self acquired properties of `P’. The findings and the conclusion so arrived is based on the proper appreciation of the evidence on record and the respondents did not bring anything contrary to make a different view. Therefore, lands A(8) to A(12) of the suit Schedule is not the joint family property but the absolute property of `P’, which she purchased/acquired from the income and funds from the lands A(7) and A(4) to A(8). [Para 23] [452-C-H; 453-A-B] 3. The reasoning given by the High Court cannot be accepted. Thus, the reasoning and conclusion reached by the trial court is concurred with. Thus, the judgment and order passed by the High Court is set aside and that of the trial court is restored. [Paras 24 and 25] [453-C-D] Case Law Reference: (2007) 1 SCC 521 Referred to Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3495 of 2001. From the Judgment and Order dated 30.03.1999 of the High Court of Karnataka in RFA no. 385 of 1993. Rajesh Mahale and Giri K., for the Appellants. Gireesh Kumar (for Khwairakpam Nobin Singh), M.A. Chinnasamy and Ankur S. Kulkarni for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3495 OF 2001 Marabasappa (D) by LRs. & Ors. ………….. Appellants versus Ningappa (D) by LRs. & Ors. …………..Respondents J U D G M E N T H.L. DATTU, J. 1. This appeal is directed against the Judgment and Order of the … Continue reading
HINDU SUCCESSION ACT, 1956: ss. 6 and 8 – Coparcenery property in the hands of sole coparcener – On his death, shares claimed by his daughters, children of deceased daughter and the son born out of the second marriage – Held: The son would inherit the properties not as coparcener – Therefore, s. 8 would apply and not s.6 – Hindu Marriage Act, 1955 – ss.5 and 16 – Evidence Act, 1872 – s.50 Evidence Act, 1872 – s. 50 – Opinion of relationship – Factum of marriage – Held: Evidence of relatives was admissible not only from the point of view that they were the persons who could depose about the conduct of parties but they were also witnesses to various documents executed by the wife. The predecessor-in-interest of the parties, namely, `K’, a coparcener along with his brother, on a partition which took place in 1941, was allotted the suit property. He married twice. From the first wife, namely, `P’, he had three daughters, and from the second wife, namely, `Y’, whom he was stated to have married in 1960, he had a son by name `D’. `K’ died in the year 1969. In the year 1998 one of his daughters from the first wife also died. Two partition suits were filed – one by the children of K’s deceased daughter, the appellants, claiming 1/3rd share and denying the second marriage of `K’, and the other suit was filed by the two surviving daughters from the first wife and the son `D’ from second wife. The trial court held that mother of `D’ was validly and legally married to `K’ and on that premise held that `K’ and `D’ formed a coparcenery and the appellants being the heirs and legal representatives of the daughter of `K’ inherited 1/10th share in the properties left by him. The High Court upheld the judgment. In the instant appeals it was contended for the appellants that `Y’ not being validly married to `K’, her son `D’ did not inherit any share in the property; and that since `D’ was born after coming into force of the Hindu Succession Act, 1956, he was not a coparcener and, therefore, s.8 of the Act would apply and not s.6. =Allowing the appeals, the Court HELD: 1.1. Evidence in different forms may be adduced before the court; information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in such a situation, those who had the occasion to see the conduct of the parties may testify with regard to the information they have, from probably the conduct of the persons concerned. Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act. [Para 10 and 11] [47-D-G] Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on. 1.2. In the instant case, the evidences of two daughters of `K’ were admissible evidence not only from the point of view that they were the persons who could depose about the conduct of `K’ and `Y’, but they were also witnesses to various documents executed by `Y’. The High Court has itself noticed the applicability of s.50 of the Evidence Act. In that view of the matter, the finding that `K’ married `Y’ need not be interfered with. [Para 11 and 12] [47-G-H; 48-A, D] 2.1. It is now well-settled that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. [Para 16] [50-B] Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567; Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75; Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355, relied on Eramma vs. Veerupana & Ors. AIR 1966 SC 1879, referred to 2.2. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between `K’ and `Y’ took place in 1960 and, as such, the said marriage was clearly hit by s. 5 of the Hindu Marriage Act. `D’, therefore, would inherit the properties not as a coparcener. [Para 13] [48-E-G] 2.3. `D’ was admittedly born after the coming into force of the Hindu Succession Act. However, the Hindu Marriage Act, carved out an exception to the matter of inheritance of children of such marriages by creating a legal fiction u/s 16 of the Hindu Marriage Act. Therefore, as on the date of death of `K’ all his daughters as also `D’ will take in equal shares being the relatives specified in Class I of the Schedule appended to the Hindu Succession Act. Therefore, the trial court as also the High Court were not correct in opining that `D’ would be a coparcener and the appellants would inherit only 1/10th share in the said properties . The share of the appellants would be 1/3rd. [Para 13-15 and 19] [49-G-H; 53-D; 48-G] Case Law Reference: AIR 1978 SC 1557 relied on para 9 (2008) 1 SCALE 434 relied on para 9 (1986) 3 SCC 567 relied on para 16 2006 (10) SCALE 75 relied on para 17 2008 (2) SCALE 355 relied on para 17 AIR 1966 SC 1879 referred to para 18 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4818-4819 of 2009. From the Judgment & Order dated 16.11.2007 of the High Court of Karnataka at Bangalore in RFA No. 1403 of 2003 C/w 1404 of 2003. G.V. Chandrashekhar, N.K. Verma, Anjana Chandrashekar for the Appellants. S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N. Raghupathy for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4818-4819 OF 2009 ARISING OUT OF S.L.P. (C) NO. 5964-5965 OF 2008 M. YOGENDRA & ORS. ….. APPELLANTS VERSUS LEELAMMA N. & ORS. ….. RESPONDENTS JUDGMENT SINHA J. Leave granted. Interpretation of the application of the provisions of Section 6 of the … 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 directed against the … Continue reading
The domestic enquiry found the delinquent employee guilty of all the charges. The enquiry report was accepted by the Disciplinary Authority and there is no grievance on behalf of the respondent-workman that statutory provisions/principles of natural justice have not been observed while conducting the enquiry. The Disciplinary Authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non-commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in a fair manner and charges have rightly been proved against the delinquent 1
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9933 OF 2011 (Arising out of SLP(C) No.7083 of 2010) The Divisional Controller, KSRTC …. Appellant Versus M.G. Vittal Rao …. Respondent J U D G M E N T Dr. B.S. CHAUHAN, J 1. Leave granted. 2. This appeal has been … Continue reading
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION= when the consumer asked for refund of the amount paid, the state commission ordering to pay balance amount and direct the opposite party to execute the sale deed is wrong one= However, it must be noted that whatever the basis, the order of the State Commission giving the complainant twomonths time to pay and get the site, was well beyond the relief sought by the complainant. Before the State Commission, the case put forth by the respondent/Complainant was that the auction was held on 22.9.1997 but there was no confirmation of the same. He wrote to BDA on 26.5.1998 stating that he had been waiting for over six months. Having got no response, he has made alternative arrangement and was no longer interested in confirmation of the auction sale. He had therefore sought refund of the amount of Rs 17.12. lakhs deposited by him. Receipt of this letter is acknowledged by BDA on the same day. This is reiterated in the complaint petition (and his affidavit evidence) before the State Commission. Accordingly, the relief sought by him was refund with interest. Even as late as 18.8.2003, the respondent/complainant had stated in his written submission before the State Commission— “The only question that requires to be resolved in this complaint is whether the Complainant is entitled to seek refund of the money deposited by him at the time of bidding the auction.” It is therefore, abundantly clear that in the impugned order the State Commission has granted a relief which was never sought by the complainant. 8. The impugned order, passed on 24.9.2004 is unsustainable, on another ground viz. that it amounts to permitting the complainant to purchase the site in 2004 at the market price of 1997. 9. For reasons detailed above, the order of the Karnataka State Consumer Disputes Redressal Commission in Complaint No. 47/1999 is set aside. The matter is remanded back to the State Commission for fresh consideration of the complaint petition and the prayer made therein. The State Commission shall decide the points for determination and adjudicate upon them after going into all aspects of the matter. Parties to the present proceedings shall bear their own costs.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 8 OF 2005 (Against the order dated 24.09.2004 in Complaint No.47 of 1999 of the State Commission, Karnataka) Bangalore Development Authority, By its Commissioner, Kumara Park (West) Bangalore– 560 020 Karnataka ……….Appellant Versus Sri Varghese George P. S/o George Jacob, No.13, Jayamahal Extension, Bangalore, Karnataka ………Respondent BEFORE HON’BLE MR. … Continue reading
Suit: Suit for declaration of title and injunction – Plaintiffs claiming to be owners of the suit land – Reliance placed on various documents – Trial court decreeing the suit – High Court setting aside the decree – On appeal, held: The suit land was a Government land – The land was not subjected to any land revenue – Documents relied on, do not establish title of the plaintiffs on the lands – Mysore Revenue Manual – Paras 236 and 376 – Karnataka Land Revenue Act, 1961 – s. 67. Suit for declaration of title – Against Government and against private individual – Difference between – discussed. Suit for declaration of title against Government – Grant of decree – Criteria for – Discussed. Suit for declaration of title against Government – Onus to prove title – Held: It is for the claimants to establish their title to suit properties – Weakness of Government’s defence or absence of contest, are not sufficient to decree declaratory suits against the Government. Adverse possession – Right adverse to the Government – Claim of – Held: To claim adverse possession, claimant’s possession should be actual, open and visible, hostile to the owner and continued during entire period necessary to create bar under the law of limitation. Appellant-plaintiffs filed the present suit for declaration of title and consequential relief of permanent injunction in respect of the suit land (Survey Nos. 30 and 31), against the respondent-defendants. Appellants claimed to be owners of a tank in Survey No. 30 and a barren land in Survey No. 31. They claimed that the suit land was part of the land owned by their ancestors, and they were in continuous possession of the suit land as owners. The appellants filed a suit for permanent injunction when City Improvement Trusts Board attempted to interfere with their possession of the tank (Survey No. 30). Subsequently the present suit was filed wherein the appellants-plaintiff claimed title over the suit land Survey Nos. 30 and 31, placing reliance on Exs. P1, P2, P10, P11, P12 and P18. During pendency of the present suit, first suit was dismissed. Appeal against the order was also dismissed by High Court observing that the judgment would not affect the pending (present) suit. Plea of the respondent-defendants was that Survey No.30 was a Government tank shown as Kharab land in the revenue records and Survey No. 31 was also a government barren land shown in revenue records as Government Kharab land. Trial court decreed the suit holding that appellants had made out their possession and title with regard to the suit property. High Court, in appeal, set aside the decree. Hence the present appeals. =Dismissing the appeals, the Court HELD: 1.1. The appellants were not registered as the owners or khatedars or occupiers of the suit lands in any revenue records. They did not have any document of title referring to the suit properties. The appellants did not have possession. Even assuming that the tank in Survey No. 30 was repaired/ maintained by the ancestors of plaintiff at some point of time, there is no document to show that the tank was used, maintained or repaired by the appellants or their predecessors during more than half a century before the filing of the suit. The suit has to fail. [Para 21] [926-B-D] 1.2. The High Court, being the first appellate court is the final court of fact. It has, after examining the evidence exhaustively recorded a finding that the appellants have not established their title or possession. There is no error in the findings and conclusions of the High Court. The appellants who came to court claiming title, not having established title, their suit is liable to be dismissed. [Para 19] [925-D-E] 2.1. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the Government. All lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against Government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of Government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. [Para 15] [921-G-H; 922-A-E] 2.2. Many civil courts deal with suits for declaration of title and injunction against Government, in a casual manner, ignoring or overlooking the special features relating to Government properties. Instances of such suits against Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the Government contests the suit or not, before a suit for declaration of title against a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. [Para 16] [922- G-H; 923-A-B] 2.3. Section 67 of Karnataka Land Revenue Act, 1961 declares that all tanks and all lands which are not the property of any person are the property of the State Government. Weakness of Government’s defence or absence of contest, are not therefore sufficient to decree declaratory suits against the Government. It is for the appellants to establish their title to the suit properties. [Para 18] [924-E; 925-B-C] 2.4. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the Revenue Records or Municipal Records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). [Para 16] [923-C-E] 2.5. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the Government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the Government. [Para 17] [923-F-H; 924-A-B] On facts: 3.1. Exhibit P18 is an extract of the register maintained by the Public Works Department showing the details of tanks in Bangalore Division. The said extract is in respect of Serial No.279 from the said register relating to a tank described as `Maistry Kere’ or `Maistry Palyada Kere’ in Jakkasandra village, the extent of the water body being 11 acres. The name of the tank is followed by the word `private’ in the register and gives particulars of the Achkat area of the tank (that is area of land irrigated by the said tank) in the year 1906-07. The appellants took the plea that the description of the tank as `private’ in the Tank Register would demonstrate that the tank did not belong to the Government and that it was privately owned. The High Court however held that the mere use of the word `private’ after the description of the tank, will not establish appellant’s title or possession in regard to Survey No.30. [Para 5] [916-E-G] 3.2. A reading of Para 376 of the Mysore Revenue Manual shows that a private tank can be constructed by a private individual, either in his own land or on Government unoccupied land. It also shows that private individuals may restore Government tanks. Therefore it follows that when a tank is described as `private’ in the Tank Register, that by itself will not establish that the land where the tank is situated is private land. When a tank enumerated in the Tank Register maintained by the Government, adds to the description of the tank, by the word `private’, it merely shows that the tank in question had been constructed by a private individual but it does not lead to the inference that the land on which the tank is constructed belonged to a private individual. [Para 7] [917-G-H; 918-A-B] 3.3. Para 236 of the Manual shows that a private land on being converted into a private tank would not get full exemption or remission from payment of land assessment, but was extended only a partial remission. In fact, if a tank was constructed on a private land, the land would be continued to be assessed to land revenue with appropriate partial remission. On the other hand, if it is a Government unoccupied land on which a private individual is permitted to construct the tank, it will continue to be shown as Government Kharab land and will not be subjected to any land revenue. In this case neither Survey No.30 nor Survey No.31 is assessed to land revenue and are shown as Government Kharab land in all revenue records (vide Ex. D7, D8, D9, D10, D11 and D12). Unarable lands including tanks are described as Phut Kharab. The Tank register extract (Ex.D15) and other documents produced by respondents show that the tank was breached and BDA had formed a layout in a major portion of the tank land and the remaining area was being developed into a park by the Forest Department. Therefore, Ex. P18 proves that Survey No.30 was not a land owned by a private individual and that it belonged to Government. [Para 8] [918-C-F] 3.4. Ex. P1 which is an extract of Phut Pahani (Inspection Statement showing the old survey numbers and corresponding new numbers of lands and full information regarding tenure and occupancy of the land, described in the Mysore Revenue Manual), did not relate to nor provide proof of ownership of any land. Ex.P1 merely disclosed that when it was inspected on 18.6.1871, survey no.25 of Jakkasandra measuring 10 acres 28 guntas was a tank and that it was repaired by predecessor of appellant. This document therefore does not help the appellants to prove title of their predecessor to the tank. Unless the title to the land on which the tank is situated is established, the mere fact that the tank was shown to have been maintained or repaired by any private individual will not make him the owner of the tank. At best it will show that the tank was maintained by him as a private tank for the purpose of irrigation. [Para 10] [919-D-F] 3.5. Ex.P2 (settlement deed) does not refer to the tank. It does not give the total extent of the land. It does not disclose whether Survey. Nos. 30 and 31 formed part of Dalavai Dinne owned by the ancestors of appellants at any point of time. The settlement deed merely shows that the predecessor of the appellants had settled certain land, known as Dalavai Dinne which was assessed to land revenue, to his son and does not help the appellant to establish title to either survey Nos. 30 or 31. While the settlement deed describes the land settled as land assessed to land revenue, significantly, Survey Nos. 30 or 31 which are now claimed by the appellants as part of Dalavai Dinne were never assessed to land revenue, but were always described as Government Kharab land. Ex.P1 and P2 are therefore of no assistance to the appellants. [Para 11] [919-G-H; 920-A-C] 3.6. Ex.P.10 and P11 are contract notes executed by contractors said to have been engaged by the predecessor of the appellants for execution of certain works relating to the tank at Dalavai Palya. They are not signed by the predecessor of the appellants. Even assuming that the documents (Ex.P10 and P11) are genuine and related to a tank situated in Survey No.30, they would not help the appellants to establish title to Survey No. 30, or Survey. No. 31. [Para 12] [920-E-F] 3.7. Ex.P12 is said to be the Tank Majkur Register Extract maintained by the Assistant Superintendent of Land Records, Bangalore Sub-Division, showing that Re-survey No.30 measured 11 acres 21 guntas and the entire extent was karab (tank) and it corresponded to old survey No.25. It also records that the tank was dug by and was later repaired by predecesors of the appellants about 25 years ago and thereafter no one has repaired it and it is in the state of good repair. The date of inspection or entry is not mentioned and it does in no way help the appellants to prove title to the land. [Para 13] [920-H; 921-A-B] 3.8. The land acquisition reference proceedings relied upon by the appellant did not relate to Survey Nos. 30 or 31. It is related to other lands and the issue before the court was a dispute between the appellant and some other claimants. There is no adjudication of the title of the appellants or their ancestors in regard to Survey Nos. 30 or 31. Nor is there any finding by the court which can support the appellants’ claim to Survey No.30 or Survey No. 31. Therefore, the High Court has rightly rejected the said judgment as not relevant for examining the title of the appellants. [Para 14] [921-C-E] 3.9. The first appellant had earlier filed a suit for a permanent injunction, claiming that he was in possession of Survey. No. 30 (tank). That suit and appeal therefrom were dismissed by recording a finding that he failed to establish possession. The observation of the High Court while dismissing the appeal from the decision in the earlier injunction suit, that the dismissal will not come in the way of plaintiff establishing title in the subsequent suit for declaration of title, will not dilute the finding recorded by the trial court and High Court that the first appellant was not in possession, which has attained finality. [Para 20] [925-F-H; 926-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1588-1589 of 2008. From the Judgment & Order dated 4.9.2007 of the High Court of Karnataka at Bangalore in R.F.A. No. 448 & 529 of 1996. Raju Ramachandran, Sanjay R. Hegde, Joseph Pookkatt, Bhardwaj, S. Iyengar, S.N. Bhat for the Appellants. S.S. Javeli, Basava Prabhu Patil, S.K. Kulkarni, M. Gireesh Kumar, A.S. Kulkarni, Vijay Kumar, Anitha Shenoy, Rashmi Nanda Kumar for the Respondents.
R. HANUMAIAH & ANR. v. SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT & ORS. (Civil Appeal Nos. 1588-1589 of 2008) FEBRUARY 24, 2010* [R.V. Raveendran and Swatanter Kumar, JJ.] 2010 (4) SCR 904 The Order of the Court was delivered by ORDER R.V. RAVEENDRAN J. 1. These appeals by special leave are by the plaintiffs … Continue reading
Guardian and Wards Act, 1890 – ss. 7, 9, 17 and 12 – Interim custody of minor Muslim children – Death of mother of minor children, girl aged 13 years and boy aged 5 years – Re-marriage of father – Application by maternal relatives for appointment as guardian and interim custody of minor children till disposal of application u/ss. 7, 9 and 17 – Family court granting interim injunction against father restraining him from interfering with the custody – Vacation of interim order – Set aside by High Court – Interim custody granted to maternal relatives till the disposal of the proceedings – On appeal, held: Custody is distinct from guardianship – In matters of custody, welfare of children is the sole consideration – Personal law governing custody of minor girl dictates that her maternal relatives, especially maternal aunt, shall be given preference, thus, no reason to override the rule of Mohammedan Law – Prima facie case and balance of convenience in favour of granting custody to maternal relatives – Children would suffer irreparable injury if they are uprooted from their present settings against their will – Thus, order of High Court modified to the extent of visitation rights granted to father – Code of Civil Procedure, 1908 – O. 39 r.1 and 2 – Child welfare – Mohammedan Law. Appellant married the daughter of respondent no. 1, as per the Islamic rites and customs. Two children were born out of the wedlock. Appellant’s wife died after thirteen years of marriage and within a year he married again. Respondent no.1- maternal grandfather, respondent nos. 2, 3 and 4- maternal aunt and uncles of the minor children, girl aged 13 years and boy aged 5 years, initiated proceedings u/ss. 7, 9 and 17 of the Guardian and Wards Act, 1890 for appointment as guardians. They also filed application u/s. 12 of the Act r/w Or. 39 r. 1 and 2 CPC praying for interim protection of the persons and properties of the minor children and also for an injunction order restraining the appellant from interfering or disturbing the custody of the minor children. Family Court passed an interim order restraining the appellant from interfering with the custody of the children with the respondent. Appellant challenged the order. Family court vacated the interim order of injunction. High Court set aside the said order and passed certain directions. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Section 12 of the Guardian and Wards Act, 1890 empowers courts to “make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.” In matters of custody, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, the court must be guided by the welfare of the children since s. 12 empowers the Court to make any order as it deems proper. [Para 32] [65-E-F] 1.2 With regard to guardianship, the prima facie case lies in favour of the father as u/s. 19 of the Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. Respondents, despite the voluminous allegations leveled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better. The question of guardianship can be independent of and distinct from that of custody in facts and circumstances of each case. [Paras 33 and 35] [65-G-H; 66-A-B; 67-B] Rosy Jacob v. Jacob A.Chakramakkal (1973) 3 S.C.R. 918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR 1932 All 215, referred to. 1.3. The Court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect. Stability and consistency in the affairs and routines of children is also an important consideration. [Paras 37 and 38] [68-B-C] R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC 2262, referred to. 2.1. Keeping in mind the paramount consideration of welfare of the children, the custody of the children which currently rests with their maternal relatives is not disturbed as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship. [Para 36] [67-B-C] 2.2. The children have been in the lawful custody of the respondents from October, 2007. It has the sanction of the order of the High Court granting interim custody of the children in their favour. Hence, the consideration that the custody of the children should not undergo an immediate change prevails. The question with whom they remained during the period from the death of their mother till the institution of present proceedings is a matter of dispute between the parties and a conclusion on the same cannot be reached without going into the merits of the matter. At any rate, the children are happy and are presumably taken care of with love and affection by the respondents, judging from the reluctance on part of the girl child to go with her father. She might attain puberty at any time. High Court rightly observed, that it may not be in the interests of the children to separate them from each other. Hence, the status quo is not disturbed as the only concern is with the question of interim custody at this stage. [Para 40] [68-G-H; 69-A-E] 2.3. Regarding the matters of custody, the Court is not bound by the bar envisaged u/s. 19 of the Act. The personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given reference. As such regarding the interim custody, there is no reason to override the rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents. The balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle. In matters of custody of children, their welfare shall be the focal point. Once the focus is shifted from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. Respondent no.3 stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. Hence, the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. [Paras 43 and 44] [70-G-H; 71- A-E] 2.4. Till the final disposal of the application for guardianship, the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings. There is no conflict between the welfare of the children and the course of action suggested by personal law to which they are subject. [Paras 45 and 46] [72- B-C-E] Hassan Bhatt v. Ghulam Mohamad Bhat AIR 1961 J & K 5, approved. 2.5. Respondent no. 1 is an old person aged about 72 years. Respondent no. 2 is already married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent no. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. No views can be expressed on the correctness of these averments. These matters must be gone into when the Family Court disposes of the application for guardianship filed by the respondents and not at this stage. [Para 47] [72-F-H; 73-A] 2.6. As far as the denial of the interim custody of children to the respondents on the ground that they had not approached the Court with clean hands, such cannot be inferred. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is a question of fact which is yet to be proved. [Para 48] [73-B-D] 2.7. In the opinion of High Court, the minor girl who was then was 10 to 11 years old, was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. But as only the question of interim custody is dealt with, there is no reason why the preference of the elder child shall be overlooked. The Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, weight must be given to the preference that daughter had expressed. However, the visitation rights granted to the appellant is modified. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm. The order of the High Court is modified and the order of the Family Court vacating its injunction order is set aside. The Family Court is directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date. [Paras 50, 51 and 52] [74-A-F] Gaurav Nagpal v.Sumedha Nagpal (2009) 1 SCC 42, distinguished Rafiq v. Bashiran and Ors AIR 1963 Rajasthan 239; B.N. Ganguly v. C.H. Sarkar AIR 1961 MP 173; R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC 2262; Bal Krishna Pandey v. Sanjeev Bajpayee AIR 2004 UTR 1; Nil Ratan Kundu and Anr. vs. Abhijit Kundu (2008) 9 SCC 413, referred to. Case Law Reference: AIR 1963 Rajasthan 239 Referred to. Para 28 AIR 1961 MP 173 Referred to. Para 29, 49 (1973) 3 S.C.R. 918 Referred to. Para 33 AIR 1932 All 215 Referred to. Para 34 AIR 2001 SC 1056 Referred to. Para 37 AIR 2008 SC 2262 Referred to. Para 38 (2009) 1 SCC 42 Distinguished. Para 40 AIR 2004 UTR 1 Referred to. Para 44 AIR 1961 J & K 5 Approved. Para 46 (2008) 9 SCC 413 Referred to. Para 48 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11 of 2010. From the Judgment & Order dated 8.10.2007 of the High Court of Karnataka at Bangalore in Writ Petition No. 9177 of 2007. S. Balaji, B.M. Arun, Madhusmita Bora for the Appellant. Nalini Chidambaram, Sunieta Ojha, Vikas Mehta for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11 OF 2010 (Arising out of SLP ) No. 24148 of 2007) Athar Hussain. —–Appellant Versus Syed Siraj Ahmed & Ors. —-Respondents JUDGMENT TARUN CHATTERJEE, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated 8th of October, … Continue reading
Public Religious Trust-Scheme-Suit to set aside scheme- Beneficiaries, not a particular sect of Muslim Community- Plea of res judicata-Character and nature of representative suit-Circumstances under which a scheme can be set aside- Code of Civil Procedure, 1908, (Act V of 1908), ss. 11 Exp. VI, 92, Or. 1. rr. 6, 8. =The respondents filed a suit under s. 92 of the Code of Civil Procedure, 1908 claiming to represent the Sunni Muslims population of Bangalore and praying that_ a scheme should be settled for the proper administration of the Jumma Masjid, Bangalore. The plot on which the Masjid was built was purchased about a century ago by a large number of Muslims consisting of several groups from all walks of life. The mosque was constructed from the funds given as gifts by a large number of Muslims. A grant of land made to the mosque shows that the mosque and its properties were intended for the benefit of the Muslim Community as a whole. For about 60 years the mosque and its properties were under the management of non- Cutchi Memons and prior to this the management was not exclusively in the hands of Cutchi Memons but predominantly in the hands of Dekkhani Muslims of the locality. In subsequent years on some occasions the management was predominantly in the hands of the Cutchi Muslims but the Dekkhani Muslims in Bangalore numbered about 30,000 and the Cutchi Muslims never exceeded 300. Prior to the present suit a suit under s. 92 was filed in 1924 and a scheme was settled and Trustees were appointed and they had been in management ever since. In the said proceedings, the plaintifffs, both in the application made to the Collector for sanction under s. 92 Code of Civil Procedure and in the plaint, specifically averred that the Masjid in question was an institution belonging to the Cutchi Memon Community 648 and they purported to represent the interests of that Commu- nity and . no other. There were some defendants in the suit who were non Cutchi Muslims but they were sued as tres- passers and their only interest in defending the suit was to support their individual rights. In the suit out of which the present appeal has arisen the respondents claimed that the Masjid with its adjuncts belonged to the whole Muslim Community of Bangalore and not exclusively to the Cutchi Muslims, It was further claimed that the scheme framed under the earlier suit was the result of collusion and that the said decree did not bind the non- Cutchi Memons and that the present trustees were guilty of mismanagement and breach of trust. The appellants contended that the Cutchi Memons were the exclusive beneficiaries and that the suit was barred by res judicata and denied the allegations of collusion, breach of trust and mismanagement. The trial court rejected the contentions of the respondents and upholding the plea of res judicata raises by the appellants dismissed the suit. Thereupon the respondents appealed to the High Court and the High Court while rejecting the pleas of collusion and breach of trust differed from the trial court on the question of res judicata. It found that the Mosque and its adjuncts belonged to the whole of the Muslim community and not exclusively to the Cutchi Memons. Therefore the High Court while agreeing with the trial court that a scheme should not be lightly disturbed found that a case had been made out for framing a new scheme and remanded the case to the trial court. The present appeal is by way of special leave. The first point raised in the appeal was that the suit was barred by res judicata on the ground that a suit under s.92 Code of Civil Procedure was a representative suit and the present respondents would be bound by it whether, they were parties to it or not since they were interested in the Trust. It was further contended that since both the courts below had rejected the plea of mismanagement and breach of trust and since the High Court had found that the present trustees were managing the trust reasonably and in a responsible manner this Court should not lightly disturb the said findings. Held that the mosque and its adjuncts came into,being, and continued to be an institution belonging to the Sunni, Muslim Community of Bangalore and it cannot be he held that: its management was exclusively in the hands of Cutchi Memons at any time before 1924. 649 Reading ss. 11, 92 Exp. VI, 0. 1 rr. 6 and 8 of the Code of Civil Procedure it is clear that in determining the question about the effect of a decree passed in a representative suit, it is essential to inquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under s. 92 it will become necessary to, examine the plaint in order to decide in what character the plaintiffs had sued and what interests they bad claimed. The basis of the principle that a decree under s. 92 suit binds all persons interested in the trust, is that the interests of all persons interested in the trust are represented in the Suit as required by Exp. VI to s. I and if that basis is absent the decree cannot create a bar of res judicata against persons claiming an interest not represented in the. earlier suit. The plaint in the earlier suit as well as the application to the Collector for sanction proceeded on a clear and un- ambiguous basis that the mosque belonged to the Cutchi Memons and the suit was instituted on their behalf by persons who claimed to be interested in the mosque as Cutchi Memons. Once it is found as it has been found in the present case, that this basis of the claim made in the plaint was not well founded and that the mosque belonged to all Sunni Muslims of Bangalore it would be difficult to accept that the suit can be regarded as a representative suit so far as the interests of the Muslim Community other than the Cutchi Memons residing in Bangalore are concerned, Raja Anandrao v. Shamrao, [1961] 3 S.C.R. 930, Ramados v. Hanumantha Rao, (1911) I.L. R. 36 Mad., 364 and Khaja Hassanulla Khan v. Royal Mosque Trust Board,. 1. L. R. (1948) Mad. 257, distinguished, There can be no doubt that if a scheme is framed in a suit brought under s. 92 it should not be changed unless there are strong and substantial reasons to do so. It must be clearly shown not only that the scheme does not operate beneficially but that it can by alteration be made to do so consistently with the object of the foundation. Attorney General v. Bishop of Worcestor (1831) 63 L. R. 530 and Attorney General v. Stewart (1872) L. R. 14 Eq. 17. The impugned scheme in the present suit proceeded on the erroneous assumption that the Mosque belonged to Cutchi Memons and that the said community alone was entitled to its exclusive administration. This assumption has clearly introduced certain infirmities in the scheme. The scheme must 650 be revised on the true basis that the Mosque does not belong exclusively to the Cutchi Memons, but belongs to all the Sunni Musalmans of Bangalore. =1964 AIR 107, 1964( 2 )SCR 647, , ,
PETITIONER: AHMED ADAM SAIT & OTHERS Vs. RESPONDENT: INAYATHULLAH MEKHRI AND OTHERS DATE OF JUDGMENT: 29/03/1963 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1964 AIR 107 1964 SCR (2) 647 CITATOR INFO : F 1990 SC 444 (8) ACT: Public Religious Trust-Scheme-Suit to set aside scheme- Beneficiaries, not a particular … Continue reading
Employees’ State Insurance Act, 1948 – ss. 45A and 2(9) – Employee – Payment of ESI contributions – Co-operative Milk Producer’s Societies engaged in purchase of milk and pasteurization of the same – Workers employed by contractors in performance of contract awarded to them for transportation of milk – Liability of Milk societies to pay ESI contribution in respect of the workers – Held: Not liable – Workers employed by contractors in performance of contract awarded to them for transportation of milk, not covered by the definition of `employee’ u/s. 2(9) – No evidence to show that workers who did loading and unloading of milk cans were directly employed by Milk Societies – Also they are not employed on the premises of Milk Societies – Said workers did not work under the supervision of Milk Societies . Words and phrases: Expression `supervision’ – Meaning of – In the context of s. 2(9) of the Employees’ State Insurance Act, 1948. The appellants Co-operative Milk Producer’s Societies, namely HCMPSU Ltd. and BURDCMPS Union, were engaged in purchase of milk and pasteurization of the same. The appellant awarded contract for transportation of milk for a specific period at a particular rate to the contractor. The contractor employed workers for the same. The inspection of the appellant’s establishment was carried out. The concerned authority passed an order u/s. 45A of the Employees’ State Insurance Act, 1948 calling upon the appellants to pay contribution in respect of workers employed for transportation and procurement of milk together with interest. The appellant challenged the order before the Employees’ State Insurance Court and the same was dismissed. The High Court upheld the order. Hence the appeals. =Allowing the appeals, the Court HELD: 1.1 Merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be an `employee’; he must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in s. 2(9) of the Employees’ State Insurance Act, 1948. [Para 17] [251-A-B] Royal Talkies, Hyderabad and Others v. Employees State Insurance Corporation (1978) 4 SCC 204, relied on. Regional Director, Employees’ State Insurance Corpn., Madras v. South India Flour Mills (P) Ltd. (1986) 3 SCC 238; Kirloskar Brother Ltd. v. Employees’ State Insurance Corporation (1996) 2 SCC 682; Rajakamal Transport and Another v. Employees’ State Insurance Corporation, Hyderabad (1996) 9 SCC 644; Transport Corporation of India v. Employees’ State Insurance Corporation and Another (2000) 1 SCC 332; M/s. Saraswat Films v. Regional Director, E.S.I. Corporation Trichur JT 2002 (Suppl 1) SC 454, referred to. 1.2. It is not the case of any of the parties nor there is any evidence to show that the persons who did loading and unloading were directly employed by the appellants. Section 2(9)(i) is, therefore clearly not attracted as it covers the workers who are directly employed by the principal employer. Clause (ii) of s. 2(9) requires either (a) that the person to be an employee should be employed on the premises of the factory or establishment, or (b) that the work is done by the person employed under the supervision of the principal employer or his agent on work which is ordinarily part of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment. The expression “on the premises of the factory or establishment” comprehends presence of the persons on the premises of the factory or establishment for execution of the principal activity of the industrial establishment and not casual or occasional presence. [Para 18] [251-C-F] 1.3. For the purposes of loading and unloading the milk cans, the truck driver and loaders enter the premises of the appellants but mere entry for such purpose cannot be treated as an employment of those persons on the premises of the factory or establishment. The said expression does not comprehend every person who enters the factory for whatever purpose. This is not and can never be said to be the purpose of the expression. The persons employed by the contractor for loading and unloading of milk cans are not the persons employed on the premises of the appellants’ establishment. [Para 18] [251-F-H; 252-A] 2.1. Although, E.S.I. Court in respect of the appellants in separate orders, recorded a finding that such workers work under the supervision of the principal employer and the said finding has not been interfered with by the High Court but it is difficult to accept the said finding. The ordinary meaning of the word `supervision’ is `authority to direct’ or `supervise’ i.e., to oversee. The expression `supervision of the principal employer’ u/s. 2(9) means something more than mere exercise of some remote or indirect control over the activities or the work of the workers. Supervision for the purposes of s. 2(9) is `consistency of vigil’ by the principal employer so that if need be, remedial measures may be taken or suitable directions may be given for satisfactory completion of work. A direct disciplinary control by the principal employer over the workers engaged by the contractors may also be covered by the expression `supervision of the principal employer’. The circumstances, as in the case of HCMPSU Ltd., that the authorized representatives of the principal employer are entitled to travel in the vehicle of the contractor free of charge or in the case of BURDCMPS Union, that the principal employer has right to ask for removal of such workers who misbehave with their staff are not the circumstances which may even remotely suggest the control or interference exercised by the appellants over the workers engaged by the contractor for transportation of milk. From the agreements entered into by the appellants with the contractors, it does not transpire that the appellants have arrogated to themselves any supervisory control over the workers employed by the contractors. The said workers were under the direct control of the contractor. Exercise of supervision and issue of some direction by the principal employer over the activities of the contractor and his employees is inevitable in contracts of this nature and that by itself is not sufficient to make the principal employer liable. That the contractor is not an agent of the principal employer u/s. 2(9)(ii) admits of no ambiguity. [Para 22] [254-B-H; 255-A-B] 2.2. No evidence was collected by the E.S.I. Corporation during the inspection of the appellants’ establishments or from the contractors that the appellants have any say over the terms and conditions of employment of these employees or that the appellants have any thing to do with logistic operations of the contractors. As a matter of fact, there is nothing on record to show that principal employer had any knowledge about the number of persons engaged by the contractors or the names or the other details of such persons. There is also no evidence that the appellants were aware of the amount payable to each of these workers. In the circumstances, even if it be held that the transportation of milk is incidental to the purpose of factory or establishment, for want of any supervision of the appellants on the work of such employees, these employees are not covered by the definition of `employee’ u/s. 2(9) of the Act. [Para 22] [255-A-D] C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors. (1992) 1 SCC 441, relied on. Halsbury’s Laws of England (Hailsham Edition) Vol. I p 145, para 350, referred to. Case Law Reference: (1986) 3 SCC 238 Referred to. Para 13 (1996) 2 SCC 682 Referred to. Para 13 (1996) 9 SCC 644 Referred to. Para 13 (2000) 1 SCC 332 Referred to. Para 13 JT 2002 (Suppl 1) SC 454 Referred to. Para 13 (1978) 4 SCC 204 Relied on. Para 18 (1992) 1 SCC 441 Relied on. Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3816 of 2010. From the Judgment & Order dated 28.9.2005 of the High Court of Karnataka at Bangalore in MFA No. 2349 of 2004. WITH C.A. No.3817 of 2010. A.S. Bhasme and Nikhil Nayyar for the Appellant. V.J. Francis and Sanjeev Anand for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3816 OF 2010 (Arising out of SLP(C) No. 746 of 2006) The Managing Director, Hassan Co-operative Milk Producer’s Society Union Limited …Appellant Versus The Assistant Regional Director Employees State Insurance Corporation …Respondent WITH CIVIL APPEAL NO. 3817 OF 2010 (Arising out of … Continue reading
Motor Vehicles Act, 1988: s.166 – Compensation – Future loss of earning – Claimant aged 50 years working as mason – In motor accident, suffered multiple fractures resulting in shortening of right leg by 3.5 cms – Tribunal assessed disability at 20% and awarded compensation of Rs.1.55 lacs – High Court enhanced compensation by Rs.34000 – On appeal, held: Appellant had suffered an irreversible damage to his right leg posing difficulties for him in carrying out his avocation as a mason – High Court while making observation that the Tribunal’s compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” was on the lower side, did not make its own assessment under these heads – These areas needed proper introspection and a more sensitive approach as the appellant represented weaker section of the community – Matter remitted to High Court for consideration afresh. The appellant aged 50 years was working as a mason. On the fateful day, while he was crossing the road, a motorcycle hit him resulting in bone fractures, head and other injuries all over the body. He was hospitalized for about 2 weeks and was under medical treatment for about 6 months after discharge from hospital. MACT awarded him a compensation of Rs.1.55 lacs. Dissatisfied with the quantum of compensation, appellant filed appeal before High Court. High Court enhanced the compensation only by Rs.34,000/-. Hence the appeal. =Allowing the appeal and remitting the matter to High Court, the Court HELD: 1.1. The High Court did no consider the appellant’s case properly. It accepted the Tribunal’s assessment of the body disability at 20% and observed that the Tribunal has paid compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” on the lower side. However, it awarded an additional compensation only for future medical expenditures and did not deal with the aspect of future loss of earnings at all, which was not a correct approach. The incapacity or disability to earn livelihood should be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. [Paras 9, 10] [662-c-f] Ramesh Chandra v. Randhir Singh and others (1990) 3 SCC 723, relied on. 1.2. As per the evidence of PW-2, the doctor who supervised the appellant’s injuries and administered treatment in the Hospital, it was proved that the appellant sustained compound fractures in the tibia and fibula bone of the right leg. He also suffered bruises and cuts on his face and some parts of the body. He was operated. Even after his discharge, he was advised follow up treatments and physiotherapy and also exercise for better movement of his leg. In his affidavit before the Tribunal, PW2 stated that the appellant’s right leg was shortened as a result of which he had to walk with a limp. The appellant was advised to use footwear with a raised sole and to continue with the exercises. The Tribunal noted that the shortening of the leg was by 3.5 cms. The Tribunal however, in accepting the disability of the appellant at 48%, refused to accept the assessment of the doctor that the future loss of earning would also be at 48%. It opined that construction work involves many people and the doctor was not right in concluding that due to the disability on the right leg, the appellant would not be able to do construction work. The future loss of earning was assessed at a much lesser 20%. Since there was no specific evidence regarding his income, the multiplier method was used for assessing the compensation. [Paras 11-14] [662-F-H; 663-A-C; 663-E-G] 1.3. Although the Tribunal concluded by holding that the assessment of future loss of earnings should be made only at 20%, the High Court, while making the observation that the Tribunal’s compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” was on the lower side, should have given reasons and made its own assessment under these heads, since High Court, as the first appellate authority, is an authority both on facts and law. The High Court’s orders starkly lacked in any details on assessment of compensation under these heads. These areas needed proper introspection and a more sensitive approach as the appellant being a mason and a workman represented the weaker section of the community. The appellant had suffered an irreversible damage to his right leg which would pose difficulties for him in carrying out his avocation as a mason. [Para 15] [663-G-H; 664-A-C] M/s. Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi & others (1979) 4 SCC 365; Divisional Controller, KSRTC v. Mahadeva Shetty & another (2003) 7 SCC 197, relied on. 2. Long expectation of life is connected with earning capacity. If earning capacity is reduced, that impacts life expectancy as well. No amount of compensation can restore the physical frame of the appellant. Whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is not possible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. [Paras 17-19] [664-H; 665-B-C; 665-D-E] Case Law Reference: (1990) 3 SCC 723 relied on Para 10 (1979) 4 SCC 365 relied on Para 15 (2003) 7 SCC 197 relied on Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4027 of 2010. From the Judgment & Order dated 20.7.2009 of the High Court of Karnataka at Bangalore in MFA No. 259 of 2008. V.N. Raghupathy for the Appellant. A.K. De, Rajesh Kumar, Udit Kumar, Debasis Misra for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4027 OF 2010 (Arising out of SLP (Civil) No.4649 of 2010) Sri B.T. Krishnappa ..Appellant(s) Versus The Divisional Manager, United ..Respondent(s) Insurance Company Ltd. and another J U D G M E N T GANGULY, J. 1.Leave granted 2.This Appeal impugns the order … Continue reading
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