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M.P. Accommodation Control Act, 1961 (for brevity “the Act”) to file the suit for eviction.= In a suit for eviction and mesne profits , on failure to prove relationship of land lord and tenant , no eviction should be granted basing on title, plaintiff ought have to file a suit for declaration of title and possession, and the period indulged in this proceedings arrest the period of adverse possession = Tribhuvanshankar … Appellant Versus Amrutlal …Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40966
M.P. Accommodation Control Act, 1961 (for brevity “the Act”) to file the suit for eviction.= In a suit for eviction and mesne profits , on failure to prove relationship of land lord and tenant , no eviction should be granted basing on title, plaintiff ought have to file a suit for declaration of title and … Continue reading
Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound disposing state of mind of testator. HEADNOTE: One V lost his father when he was only 10 years old and. thereafter lived along with his mother, in the- house of the first defendant who was his maternal uncle. The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding. V died when he was 24 years old. A few. days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death. At the time of the execution of the -will V was physically in a weak condition. The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will. Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will. On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid. [480,A-B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who -propound the will to remove that suspicion. What are suspicious circumstances must be judged on the facts and circumstances of each particular case. If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in -such a case the court should proceed in a vigilant and cautious, manner. [477 R; 478 A-B] Barry v. Butlin, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton, (1894) P. 151, 157, 159 and Sarat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=2120 PETITIONER: GORANTLA THATAIAH Vs. RESPONDENT: THOTAKURA VENKATA SUBBAIAH & ORS. DATE OF JUDGMENT: 19/03/1968 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. MITTER, G.K. CITATION: 1968 AIR 1332 1968 SCR (3) 473 ACT: Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound … Continue reading
the damages/compensation cannot be claimed against the State. ? =Whether the death of son of plaintiff was due to want of care, negligence and callousness of defendants as pleaded by plaintiffs?- Whether there is any bar in law, prohibiting award of damages, on account of the death of a soldier or seaman, if it is proved that the death occurred under mysterious circumstances? = if the negligence or want of proper care on the part of State is proved, the tortious liability to pay damages/compensation would arise and the same needs to be treated as constitutional tort. No decided case is cited as to how a State can claim immunity from the obligation to compensate the dependants of its employee, if it is proved that the death occurred on account of its negligence and lack of proper care. The point is answered accordingly. REPORTED/ PUBLISHED http://judis.nic.in/judis_andhra/filename=9823
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE K.G.SHANKAR Appeal Suit No.3504 of 2004 04.04.2013 Union of India and another. Ashok Narayan Paldhe and others. Counsel for appellants: Sri Ponnam Ashok Goud Counsel for Respondents : Sri Sunil Ganu <GIST: >HEAD NOTE: ?Cases referred 2004 (1) ALD 19 JUDGMENT: (Per the Hon’ble … Continue reading
HINDU SUCCESSION ACT – KARNATAKA AMENDMENT IN RESPECT OF DAUGHTERS SHARE ON PAR WITH SONS = it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of Karnataka Act 23 of 1994.= if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order.- the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution.”
‘ ITEM NO.4 COURT NO.3 SECTION IVA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil)……/2013 CC 9253-9255/2013 (From the judgement and order dated 11/01/2010 in RFA No.935/2003,RFA No.1012/2003 dated 06/01/2012 in RP … Continue reading
Or.39, rule 1 and 2 C.P.C. – Scope of sec. 53 of T.P. Act and Scope of Or.2 rule 2 can be decided at the time of the trial, admitted possession only is to be considered at interlocutory stage – In our considered opinion, the learned single judge has completely misconstrued the provisions of Order 39 Rule 1 and 2 CPC and has committed serious error in deciding the scope of Section 53A of Transfer of Property Act, 1882 and Order 2 Rule 2 of CPC. As noticed above the Civil Judge while granting ad-interim injunction very categorically observed in the order that respective rights of the parties shall be decided at the time of final disposal of the suit. The very fact that Plaintiff No.2 is in possession of the property as a tenant under Plaintiff No.1 and possession of Plaintiff No.2 was not denied, the interim protection was given to Plaintiff No.2 against the threatened action of the defendants to evict her without following the due process of law. In our considered opinion, the order passed by the learned single judge cannot be sustained in law. 8. For the aforesaid reasons, we allow this appeal and set aside the order passed by the High Court in the aforesaid appeal arising out of the order of injunction.
[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1004 of 201 3 (Arising out of Special Leave Petition (C) No.1185 of 2006) Lakshmi alias Bhagyalakshmi and Anr. … Appellant(s) Vs. E.Jayaram (D) by Lr. …Respondent(s) J U D G M E N T M.Y. EQBAL, J. Leave granted. 2. This appeal … Continue reading
Wakf Act- Section 9 of the 1921 Act, to the extent it is relevant, reads as under : “SECTION 9. APPLICATION TO COURT FOR DIRECTING THE LANDLORD TO SELL LAND – (1)(a)(i) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord may, within one month of the date of the publication of Madras City Tenants Protection Amendment Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of and specified in the application. In view of Section 3 of the 1994 Amendment Act, the application made by the legal representatives of the original defendant being Interlocutory Application No. 16520 of 1973 under Section 9 of the 1921 Act which is said to be pending before the trial court does not survive and by operation of law that application has abated. It is strange that when Second Appeal was heard by the High Court, none of the parties brought to the notice of the learned Judge the provisions of the 1994 Amendment Act. In the Review Petition, the provisions of the 1994 Amendment Act were expressly referred to but the learned single Judge referred to Section 2 only and did not advert to Section 3 at all. The omission to consider Section 3 of the 1994 Amendment Act has rendered the impugned judgment and impugned order legally unsustainable.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2232-2233 OF 2002 TAMIL NADU WAKF BOARD Appellant (s) VERSUS SYED ABDUL QUADER & ORS. Respondent(s) J U D G M E N … Continue reading
(1) Whether the plaintiff is the prior user of the trade name and whether there is any possibility of customers being misled in view of similarity in the trade name of the plaintiff and the defendant? (2) When logos and covers are different whether the suit for passing off is maintainable? (3) Whether the distance between the shops can make any difference? As far as using the words jointly ‘Shree Balaji Bajarang’ is concerned, it appears that the same cannot be treated as generic. When a party has been in business with the same name for considerable period and improve its business from time to time, normally the customers will be attracted by the trade name of that party and when another shop with the same name is opened in some other locality the customers may be confused and they may feel that the new shop is also a branch of the old shop, which gained popularity.The possibility of customers being misled cannot be ruled out because of the similarity in the trade name. It is also settled law that in the case of a passing off action the similarities rather than the dissimilarities have to be taken note of by the Court and the principle of phonetic “similarity” cannot be ignored and the test is as to whether a particular mark has obtained acceptability in the market so as to confuse a buyer as to the nature of product he was purchasing. Jurisdiction -It is settled law that the distance is not the criteria, since both the shops are situated in twin cities of Hyderabad and Secunderabad. Though Malkajgiri is within the jurisdiction of Ranga Reddy District, admittedly, it is a part of twin cities of Hyderabad and Secunderabad. When PW.1 claims that they have customers in and around twin cities, it appears that the distance is of no consequence.
THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Appeal Suit No. 321 of 2003 Judgment: This appeal is directed against the judgment and decree dated 31.12.2002 passed in O.S. No.2 of 1997 by the Principal District Judge, Ranga Reddy District, at L.B. Nagar. The appellant herein is the plaintiff and the respondent herein is the … Continue reading
Indian Registration Act, 1908, s. 17-Mortgage by deposit of title deeds-Document evidencing mortgage when must be registered-Document which itself does not create contract but is only memorandum of contract already entered into need not be registered-Further evidence to prove terms of agreement not barred by ss. 91 & 92 Evidence Act, 1872. =The respondent Bank gave a loan to Godavari Sugars Refiners Ltd., of which defendants 1 to 3, as partners, were managing agents. Subsequently the bank filed a suit for the recovery of the loan. The appellant, a brother of defendant No. 1, was impleaded as defendant No. 4 and Godavari Sugars as defendant No. 5. The suit was decreed and the decree was upheld by the High Court. Only Defendant No.4 appealed tothis Court. The decree against the appellant was passed on the basis of Exh. 1-6, a document which was signed by Defendants 1 & 4 and in which it was recorded that the title deeds Exhs. A-7 and Exh. A-8 had been deposited with the respondent bank as security for money due. According to the appellant the said title deeds had been deposited by him as security for a loan given to him by the bank in his individual capacity, and that the signature of defendant no. I had been appended to Exh. A-6 only because he bad an interest in one of the properties covered by Exhs. A-7 and A-8. HELD.- If the parties intend to reduce their bargain: regarding the deposit of title deeds to the form of a document the document requires registration. If on the other hand its proper construction and the surrounding circumstances lead to the. conclusion that the parties did not intend to do so, then, there being no express. bargain the contract to create a mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration. [220 H-221A] Rachpal Maharaj v. Bhagwandas Daruka & Ors., [1950] S.C.R, 548 Pranjivandas Mehta v. Chan Ma Phee, L.R. 43 I.A. 123, Shaw v. Foster: (1872) L.R. 5 H. L. 321,341 and Subramonian =1971 AIR 1613, 1971Suppl.SCR 209, , ,
PETITIONER: VEERAMACHINENI GANGADHARA RAO Vs. RESPONDENT: ANDHRA BANK LTD. ORS. DATE OF JUDGMENT25/03/1971 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. CITATION: 1971 AIR 1613 1971 SCR 209 ACT: Indian Registration Act, 1908, s. 17-Mortgage by deposit of title deeds–Document evidencing mortgage when must be registered-Document which itself does not create contract but is only … Continue reading
BOUNDARIES WILL PREVAILS OVER THE EXTENT AND SURVEY NUMBER
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/09/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA S.A.No.648 of 1999 Samayana Thevar .. Appellant Vs. 1. Abdul Razack 2. Selva Mohammed .. Respondents Second Appeal against the judgment and decree dated 16.11.1998 in A.S.No.1 of 1998 on the file of the Subordinate Court, Sivagangai, confirming the judgment … Continue reading
Indian Succession Act, 1925; Ss. 2(f), 2(h), 63, 211, 212, 213, 214, 218, 219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: Testator bequeathing property in dispute to his son from third wife ignoring other legal heirs-Grant of probate/Letter of Administration-Suit for partition of the property filed by other legal heirs-Agreements to sell the property in dispute entered into between the testator and vendee- Execution thereof by the executor-son after death of his father/testator- Revocation of probate on ground of non-citation-Sale transactions-Validity of-Held: Agreement to sell the property executed and certain amount as part consideration received by testator himself during his life time-Testator had strained relations with his second wife and sons but had cordial relations with his third wife and son-Testator bequeathed his properties to his son from third wife out of love and affection, and appointed the son as constituted attorney for negotiations and selling of the property-No abnormality found in testator appointing one of his sons as constituted attorney-Trial Court failed to take into account the proved preponderatory circumstances but was influenced by unconsequential matters in holding the will as not genuine- Grant of Probate establishes the genuineness of the will-Grantee entitled to convey the title-If propounder did not take appropriate steps by mistake to notify his heirs before obtaining probate, third party/purchaser, if acted bonafidely, not answerable to the mistake committed by the grantee-Since Vendees invested huge amount to free the suit premises from requisition, acquisition and other encumbrances, they were bound to expedite the sale after grant of probate-Since partition suit filed by other legal heirs, sons from second wife of the testator, and the suit premises got demolished and a new building constructed thereon, it shows that other legal heirs also had knowledge of these events-They knowingly allowed the executor of the will to represent himself as owner of the suit property-Hence, Vendee is bonafide purchaser for value-Indian Evidence Act, 1872-Section 68. Effect of affidavit and counter affidavit on the genuineness of the will- Held: Initially mother of the executor alleged the will as forged in terms of affidavit filed by her at an interim stage of the proceedings, she rectified the earlier statement by supporting the genuineness of contents and signatures of testator on the will by filing another affidavit-These evidence not shaken- Hence, alleged suspicious circumstances stand cleared. Revocation of grant-Circumstances-Held: Liable to be revoked if obtained fraudulently-Probate Court revoked the grant on ground of non- citation- Since the executor of the will deposed that he could not cite his two step sisters due to mis-conception and not on account of fraud, Courts below erred in concluding that the probate was obtained by the executor fraudulently. Constitution of India, 1950; Article 136-Scope of-Discussed. Transfer of Property Act-Section 41-Applicability of-Discussed. Words and Phrases: `Executor’ and ` administrator’-Distinction between. A partition suit was filed by the legal heirs, sons of the deceased/ testator, claiming their share in the properties. The deceased had three wives (One of whom died during his life time) and nine children. He was living along with his third wife (defendant No.l) and son (defendant No.2) since he was having strained relations with his second wife and other children. Defendant No.2 contested the suit relying on several documentary evidence including the registered Will made by his father during his life time, bequeathing the disputed properties in his favour. The disputed property was transferred by defendant No.2 in favour of the appellant/ Vendee (defendant No.14 in the suit). Subsequently the property was transferred by the appellant in favour of defendant Nos. 15 to 20. Trial Court decreed the suit holding that defendant No.14 was not bonafide purchaser since the agreements (Ex.A/1 and ExA/2) for sale of the disputed properties were executed by defendant No.2 as constituted attorney when his father, owner of the property was alive; that the probate was obtained by defendant No.2 without service of the citations on his step sisters; that the suit for specific performance filed by the Vendee was settled in haste as the transfer deed (Ex.A/8) was executed by defendant No.2 even without receiving the total consideration amount from the vendee; and that the property was further sold to defendant Nos. 15 to 20 even after revocation of the grant of probate. The order of the Trial Court was affirmed by the High Court. Hence the present appeals. It was contended by the appellants that although Ex.A/1 and Ex. A/ 2 were executed by defendant No.2 as constituted attorney of the deceased, certain amount was received by the deceased from defendant No.14 as evidenced by receipts Ex.A/3 and Ex/A/4, which establish that the deceased during his life time had intended to sell the suit property. Thus, Ex.A/1 was binding on him as also on his heirs; that since Ex.A/8 was executed pursuant to the agreements for sale of the properties, Ex.A/1, Ex.A/2 and the probate, it was binding on the estate of the deceased; that it was not open to the plaintiffs/other legal heirs to impugn transfer deed, Ex.A/8, as fictitious or fraudulent as they had acquiesced and allowed the suit property to be freed from encumbrances by the vendees; that Ex.A/8 was entered into only after thorough search of the title deeds and the documents, including the probate; that defendant No.14 had paid the balance consideration amount to defendant No.2 who was the executor under the will; that in terms of the order of the Court defendant No.2 was brought on record as the executor under the will on demise of his father, the testator; that the second wife of the deceased was aware of defendant No.2 being appointed as an executor; that the probate Court has revoked the grant only on the ground of non- citation which was admitted by PW1 in his evidence; that the revocation cannot annul the impugned disposition which was effected during the period when probate was in existence; that in the absence of allegation of fraud or collusion against defendant No.14, both the Courts below erred in holding that defendant No.14 was not at arms length to defendant No.2, since fraud and collusion have to be alleged and proved; and that defendant No.14 had completed the sale only after the grant of probate. Thus, defendant No.14 was a bona fide purchaser and since defendants Nos.15 to 20 had derived title from defendant No.14, they are also protected. It was submitted by the respondents that defendant Nos. 14 to 20 were not entitled to rely upon the probate or the will in support of their case in view of the concession made by them before the Division Bench of the High Court; that probate granted without will being proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act is void ab initio; that the impugned will was surrounded by suspicious circumstances and that the onus was on defendant No.2 or defendant No.14 to remove or explain those circumstances; that the consent decree was a collusive decree entered into with the intention to defeat the rights of the plaintiffs/other heirs in the partition suit; that defendant No.14 or defendant Nos. 15 to 20 cannot claim protection for the transfer, which originated from fraud.; that suit for specific performance was filed by defendant No.14 to complete the sale at the earliest; that the total price/consideration amount payable was higher but defendant No.2 transferred the property for lesser amount; and that by surreptitious method, defendant No.14 in connivance with defendant No.2 as constituted attorney executed Ex.A/2 after death of the owner of the property. =Allowing Civil Appeal Nos. 6258 and 6259 of 2000 and disposing of Civil Appeal Nos. 6871-6873 of 2003 as having become infructuous, the Court HELD: 1.1. Sections 211, 212 and 213 of the Indian Succession Act bring out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. In the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. [54-B; 55-A] 1.2. Under Section 263 of the Act, grant of probate of letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds is failure on the part of the grantee to exhibit/ file an inventory or statement of account Similarly, the probate or letter of administration is liable to be revoked if the grant is obtained fraudulently. If the grant is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void, if it is obtained fraudulently. If the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator’s intention and which are compatible with the administration of the estate are protected. Therefore, on reading Sections 211, 227 along with Section 263 of the Act, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate. [55-G, H; 56- A, B] 1.3. Section 273 of the Act refers to conclusiveness of the probate as to the representative title. It establishes the factum of the will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as long as the grant stands. Under Section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging. It is, therefore, not a pure question of law. Hence, the revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under Section 273 is of validity and contents of the will. [57-B, C, D] Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr., AIR (1951) Bombay 72; S. Parthasarthy Aiyar v. M. Subbaraya Gramany and Anr., AIR (1924) Madras 67; Mt. Azimunnisa Begum v. Sirdar Ali Khan and Ors., AIR (1927) Bombay 387; Cherichi v. Ittianam and Ors., AIR (2001) Kerala 184; Sheonath Singh v. Madanlal, AIR (1959) Raj. 243; Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. AIR (1962) SC 1471; Komollochun Dutt and Ors. v. Nilruttun Mundle 4 ILR Cal.360; Akshay Kumar Pal v. Nandalal Das, ILR (1946) 1 Cal. 432 and Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. LJ 301, referred to. 1.4. The finding of the Trial Court is perverse since it is clear that the probate was revoked only on account of non-citation and despite this evidence, the Trial Court holds that the probate was revoked on the ground of forgery and fraud apart from non-citation. Hence, finding of the Trial Court is unsustainable for want of evidence. [60-F, G, H] 2.1. The testator had married thrice. His first wife pre-deceased him. When he made the will he had two wives and nine children. He was strong willed person who was conscious of his legal rights and had considerable properties. During his life time itself, he asserted his legal rights qua the tenants and used to litigate on every issue. He collected rent from the tenants. He filed eviction and rent collection suits against the tenants. He sued his second wife by filing numerous cases. He was at one point of timeliving with his second wife and her sons in one of the properties. However, his second wife and her sons started disobeying him; they were ungrateful to him; he was ill-treated by them and that thereafter he has been living with his third wife and her son. In the circumstances, there was no question of defendant No.2, executor of the will influencing his father/testator in the making of the will bequeathing the suit premises to him. [62-G, H; 63-A; 64-B-C-D] 2.2. The evidence shows that during the life time of the testator, agreements for sale of the properties, Ex.A/1 and Ex.A/2, came to be executed. That although Ex.A/1 and Ex.A/2 were executed by defendant No.2 as the constituted attorney of the deceased/testator, certain amount was received by the testator himself from defendant No.l4/vendee, which is uncontroverted evidence, and which indicates that the testator was aware of Ex.A/1 and that he intended to sell the suit premises to defendant No.14. Fur her, he lived for almost three years after making the will. He found defendant No.2 to be obedient. He loved defendant Nos. 1 and 2. These basic tell-tale circumstances have not been considered by the Courts below. Both the Courts below have drawn inferences from circumstances with dead uniformity and without realistic diversity. The basic error committed by the Courts below is that it has examined the alleged suspicious circumstances de hors the tell-tale circumstances duly established by evidence and the contents of the will. In the light of the above circumstances, the factors relied upon by the Courts below are not relevant particularly in the context of deciding the question whether the testator had approved the impugned disposition in favour of defendant No.2. [64-E, F, G, H; 65-A] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484 and Smt. Indu Bala Base and Ors. v. Manindra Chandra Base and Anr., AIR (1982) SC 133, referred to. 3.1. The Trial Court has placed reliance on the affidavit of defendant No.l, third wife of the testator, in which she has alleged that the will was forged; and that it was outcome of undue influence exercised by defendant No.2 on his father. However, the said affidavit has been filed by her at an interim stage and it is not put in evidence. Subsequently, she filed another affidavit whereby she confirms the signature of her husband, the testator on the power of attorney in favour of defendant No.2. She also confirms the sale by defendant No.2 in favour of defendant No.14. Defendant No.2 in his evidence has explained that the first affidavit was filed by his mother under misconception and subsequently on going through the papers she had rectified her earlier position. This evidence has not been shaken. Therefore, the alleged suspicious circumstance stood cleared. [65-B, C, D] 3.2. The execution of power of attorney by the testator was found to be abnormal by the Trial Court. He was 90 years of age. Negotiation for sale is a tedious and laborious task. Though he was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, there could be no abnormality in the son being appointed as constituted attorney, particularly when under the will he was the legatee. The Trial Court has come to the conclusion that the power of attorney was not produced in evidence by him and consequently execution of Ex.A/1 by constituted attorney was to defraud the testator and his heirs. However, the Trial Court has failed to consider the evidence of defendant No.2 stating that a part of sale consideration was received by the testator. [65-D, E, F] 3.3 Another circumstance which the Trial Court takes into account is that defendant No.2 has received payments of Rs.9.54 lacs whereas under the agreement (Ex.A/1) he was entitled to receive Rs.15 lacks. However, no suggestion was put to him in cross-examination on this point. In the absence of allegations the Trial Court could not have proceeded on the circumstance to hold that property was sold at a lesser price. In fact, there was no such plea taken by the plaintiffs/legal heirs. [65-G, H; 66-A, B] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484, referred to. 3.4. The Trial Court placed reliance on revocation of probate. According to the Trial Court the will was forged. However, this finding was without evidence. [66-C] Naresh Chandra Ghosh and Ors. v. Archit Vanijya and Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, distinguished. 4. The findings of the Courts below are not based on evidence. The Trial Court has failed to take into account the proved preponderatory circumstances and it was influenced by inconsequential matters in holding that the -will was not genuine. It is reiterated that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate. The findings of the Courts below are perfunctory. High Court has given a finding that in 1982 defendant No.2 got impleaded in a suit without disclosing the conveyance. No particulars of the order of impleadment have been given. However, it has been found that order dated 21.8.1982 passed by Additional District Judge in Misc. Case No.3/80 in which the testator was a party as a shebait and the subject matter of the case was quite different. Further, Ex.A/8 in the present case concerning the suit premises was not relevant in the Misc. case as the subject matter of the two cases was different That in any event the order was not put to defendant No.2 in cross-examination. In the circumstances, the High Court erred in holding that defendant No.2 had deliberately withheld the disclosure of the conveyance and the probate. [66-F, G; 67-B, C, D, E] 5. The High Court has also given a finding that defendant No.2 had obtained the probate fraudulently without service of citation on his mother and two step sisters. There is no evidence. On the contrary, the Probate Court had rejected the application for revocation made by another son of the testator on the ground of forgery and fraud. High Court erred in disbelieving defendant No.2 when he deposed that his two step sisters were not cited as they were not the legatees. This was due to misconception and not on account of fraud. Lastly, the High Court has observed that the will is lying in the state of derelict without being probated. After revocation, defendant No.2 applied for revival of proceedings; that order of revival was passed and it was challenged by one of the sons of the testator. Therefore, these circumstances indicate the strained relationship between the parties, their propensity to litigate at every stage have not been considered by the Courts below. Hence, the findings of the Courts below are based on conjectures and suspicion and that relevant circumstances have not been taken into account. [67-F, H; 68-A, B] 6. The grant of probate establishes the genuineness of the will and the person in whose favour the probate is granted is entitled to convey the title arising out of the will probated by the Court. It may happen that the propounder did not take appropriate steps, by mistake, to notify the other heirs before obtaining probate. But the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder. [68-E, F] Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. L.J. 301, referred to. 7. Without allegation of collusion against developers, both the Courts erred in holding, without evidence, that Ex.A/8 was collusive as it was got executed expeditiously. The evidence shows the propensity of the family to litigate on every issue. Appellant, the developers had invested huge amount not only in the payment of consideration but also by way of costs incurred to free the suit premises from requisition, acquisition and other encumbrances including eviction of tenants. Under these circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, defendant No.2 was not reliable. In the circumstances, without evidence, the Courts below erred on the basis of expedition of sale that Ex.A/8 was fictitious and based on collusion between defendant No.2 and defendant No.14. [70-C, D, E] 8. The second wife of the testator was aware of the will. However, she did not apply for letters of administration. She did not challenge the will. The plaint was amended. The developers demolished the old building and constructed a multi-storied building. They got freed the property from all encumbrances. In the circumstances, it cannot be said that the other heirs of testator had no knowledge of these events. Hence, the test laid down by the High Court in the case of Naresh Chandra Ghosh and Ors. v. Archil Vanijya & Viniyog Ltd. and Ors. in the matter of applicability of Section 41 of the Transfer of Property Act is squarely applicable to the facts of the present case. The intestate heirs of the testator allowed defendant No.2 to represent to the developers that he was the owner of the suit premises. It is established by the conduct of the inaction on the part of the intestate heirs of the testator. Hence, defendant No.14 was bona fide purchaser for value. [71-B, C, D, E] Gurbaksh Singh v. Nikka Singh and Anr., AIR (1963) SC 1917, relied on. Seshumull M. Shah v. Sayed Abdul Rashid and Ors. AIR (1991) Kar.273 and Naresh Chandra Ghosh and Ors. v. Archit Vanijya & Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, approved. 9. Under the will, the suit premises have been bequeathed by the testator to defendant No.2, his son from the third wife who is also appointed as an executor. Therefore, there is nothing to suggest that Ex.A/ 8 was incompatible with the administration of the estate of the testator. In the circumstances, defendant No.14 was a bona fide purchaser for value and the alienation effected by defendant No. 14 in favour of defendants No.15 to 20 was valid. Before the Trial Court, defendant No.14 and defendant Nos. 15 to 20 had asked for stay of the partition suit pending decision by the Probate Court. It was objected to by the plaintiffs. The objection of the plaintiffs was upheld and the matter was decided against the defendants. Besides, before the Trial Court, it was the plaintiffs who had relied upon the alleged suspicious circumstances surrounding the will. In the circumstances, defendants No.14 to 20 cannot be prevented from relying on the probate and the will. [71-G; 72-D, E] G.F.F. Foulkes and Ors. v. A.S. Suppan Chettiar and Anr., AIR (1951) Madras 296, referred to. 10.1. Generally, this Court does not interfere with the concurrent findings recorded by the Courts below in civil appeals by way of special leave under Article 136 of the Constitution of India. However, in cases where the Courts below have given findings on documents and on the basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached, it is incumbent duty of the Court to review such inferential process. In such cases, the right of this Court to review such inferential process cannot be denied. It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. [72-F, G] 10.2.In the instant case, the concurrent findings recorded by the Courts below are interfered with. The judgment and decree of both the Courts below are set aside and the suit for partition stands dismissed. Interim order, if any, against the appellants stands vacated. [72-H; 73-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6258 of 2000. =2004 AIR 4980, 2004(5 )Suppl.SCR31 , 2005(9 )SCC375 , 2004(8 )SCALE390 , 2004(9 )JT64
CASE NO.: Appeal (civil) 6258 of 2000 PETITIONER: Crystal Developers RESPONDENT: Smt. Asha Lata Ghosh (Dead)Thr.Lrs.Ors. DATE OF JUDGMENT: 05/10/2004 BENCH: ASHOK BHAN & S.H. KAPADIA JUDGMENT: J U D G M E N T WITH CIVIL APPEAL No.6259/2000 Archit Vanijya & Viniyog Pvt. Ltd. & Ors. Appellants Versus Smt. Asha Lata Ghosh (Dead) Through … Continue reading
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