This tag is associated with 33 posts

Indian Evidence Act, 1872. Sections 34, 61 and 114. Books of account–Entries–Proof of–Nobody supporting correctness of entries—-Account books liable to be reject- ed. Title–Proof- Presumption on basis of revenue entry–When arises. Limitation Act, 1963. Article 65–Adverse possession–Proof-Actual physical possession by claimant not necessary–Fact that property was in possession of tenants would be of no consequence. Indian Contract Act, 1872. Sections 182 and 188–Joint possession-Claim by agent–Agent actually collecting rent from tenants-Cannot claim joint possession of property. = Respondent No. 1 in the appeals instituted a suit for partition against his younger brothers and sisters, and the heirs of his deceased brothers. The plaintiff was the eldest among the brothers and sisters. The 1st and 2nd Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the third brother. Defendant 6 was the widow of the fourth brother, and Defendants 7 to 12 were his children, while Defendant No. 14 was the wife of Defendant No. 1, and Defendants 13, 15, 16 and 17 were their children. The subject matter of the appeals related only to one item of property known as “Naroda Chawl” measuring 7 acres and 2 gunthas of land, where 115 rooms and huts stood con- structed, out of which 114 rooms had been let out to ten- ants, and one room was retained for the caretaker. According to Defendants No. 6 to 12 this property exclu- sively belonged to defendant No. 6 and was not liable to partition. The other defendants however supported the plain- tiff’s case that it belonged to the 233 joint family and was liable to partition. Defendants 6 to 12 pleaded that the plaintiff’s father- Bapalal orally gifted this property to his daughter-in-law Defendant No. 6 in March 1946 and made a statement before the Revenue authorities on . the basis of which her name was mutated and she was put in possession thereof, that although she came in peaceful possession, the management which in- cluded realisation of rent was in the hands of Defendant No. 1, that as some dispute arose in 1952 she assumed direct charge of the chawl and had remained in possession thereaf- ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960. The City Civil Judge who tried the suit, held that there was a joint Hindu family and a business was carried on for the benefit of the family and the income therefrom was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the family. As the case of Defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired title by adverse possession, and the suit was dismissed with respect to the disputed chawl. The plaintiff appealed to the High Court. Some of the defendants also filed appeals in respect of the other items of property. All these appeals were heard and disposed of by a common judgment. The High Court reversed the finding of adverse posses- sion in regard to the disputed chawl and granted a decree for partition. It held that Defendant No. 6 remained in exclusive possession of the property only since 1952, the period was thus short of the time required for prescription of title. It further held that since the rents of the chawl from 1952 were collected by her husband and after his death by her son (Defendant No. 7), she was liable to render accounts till the death of her husband, and she along with Defendant No. 7 would be jointly liable for the period thereafter. Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court. Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court. 234 HELD: 1. The principle that revenue entry furnishes presumptive evidence of title is inapplicable in the instant case. It cannot be denied that title to Naroda Chawl could not have passed to Defendant No. 6 by virtue of the entry Ext. 247. The value of the chawl even in 1946 was large and no registered instrument of transfer was executed. Besides Ext. 247 describes the plaintiff’s father (Bapalal) and Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu- pant. In such circumstances, the presumption which can be raised in favour of Defendant No. 6 from this entry is with respect of her possession and possession only. [238F-G] Gangabai and others v. Fakirgowda Somaypagowda Desai and others, AIR 1930 Privy Council 93; and Desai Navinkant Kesarlal v. Prabhat Kabhai, 9 Gujarat Law Reporter 694, referred to. 2. The account books have to be rejected as not reli- able. It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries therein. Many of the documents produced by Defendant No. 1 were accepted, but the account books which were S. Nos. 123-75 to 123-97 of Ext. 123 were in express terms not admitted. The plaintiff filed his objection–Ext. 172. Defendant No. 6 also filed her objection–Ext. 275. The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross-exami- nation. The plaintiff by saying that he had written as per the instructions of Defendant No. 1 made it clear that he Could not vouchsafe for its reliability. Defendant No. 1 could not summon courage to support them either personally or through any witness. No reason has been suggested as to why he did not produce other important documents in his possession which could have supported the account books and the joint case of the parties resisting the appellant’s claim. [243B-E] 3. Defendant No. 1 cannot be treated to be in joint possession as he was actually collecting the rents from the tenants. it is well settled that the possession of the agent is the possession of the principal and in view of the fidu- ciary relationship, Defendant No. 1 cannot be permitted to claim his own possession. [247D-E] David Lyeii v. John Lawson Kennedy, [1889] XIV H.L.(E) 437; Williams v. Pott, L.R. XII Equity Cases 149 and Secre- tary of State for India v. Krishnamoni Gupta, 29 Indian Appeals 104, referred to. 4(a). It is the intention to claim exclusive title which makes 235 possession adverse and this animus possidendi must be evi- denced and effectuated by the manner of occupancy which again depends upon the nature of the property. The manner of possession depends upon the kind of possession which the particular property is susceptible. That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner’s possession. [246E-F] (b). The title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned, “.. . or any interest therein”. [246E] In the instant case, the parties have been fighting for the rent from the chawl so long as it continued in posses- sion of the tenants. Before the gift of 1946 the Defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952. The appellant has, however, estab- lished her case that the Defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl. Since 1946 the tenants attorned to the Defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the Defendant No. 1. The fact that the tenants have been in actual physical posses- sion of the chawl is, in the circumstances, of no assistance to the respondents. What is material is that they paid the rent to the Defendant No. 6. Defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent Defendant No. 1 and thereafter through her husband and son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years. [246G-H; 248G] Uppalapati Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and another, [1963] 3 SCR 910 and Hari Prasad Agarwalla and another v. Abdul Haw and others, A.I.R. 1951 Patna 160, referred to. =1989 AIR 1269, 1989( 2 )SCR 232, 1989( 2 )SCC 630, 1989( 1 )SCALE802 , 1989( 4 )JT 115

PETITIONER: SMT. CHANDRAKANTABEN ETC. Vs. RESPONDENT: VADILAL BAPALAL MODI & OTHERS. DATE OF JUDGMENT30/03/1989 BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H. CITATION: 1989 AIR 1269 1989 SCR (2) 232 1989 SCC (2) 630 JT 1989 (4) 115 1989 SCALE (1)802 ACT: Indian Evidence Act, 1872. Sections 34, 61 and 114. Books of … Continue reading

Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner’s title was not sine qua non for claiming title by adverse possession. =Dismissing the appeal, the Court HELD: 1.1. Adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession . It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostiles. [Para 5] [496-D, E] Downing v. Bird, [100] So. 2d 57 (Fla. 1958); Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, [207 N.Y. 240, 100 N.E. 742 (1913) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, application of limitation provision thereby jurisprudentially “Willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. Secondly, specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. If the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. It needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents.

CASE NO.: Appeal (civil) 7062 of 2000 PETITIONER: P.T. Munichikkanna Reddy & Ors RESPONDENT: Revamma and Ors DATE OF JUDGMENT: 24/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : BACKGROUND FACTS One Thippaiah was the owner of 5 acre 23 guntas of land having … Continue reading

suit for damages and eviction=1) Whether the plaintiff is entitled to an order of eviction against the defendants as prayed? 2) Whether the plaintiff is entitled to suit claim of Rs.12,00,000/- as prayed? 3) Whether the plaintiff is entitled for the mesne profits @ Rs.1,00,000/- as prayed? 4) To what relief?= The evidence of PW 1 would go to show that the appellant – defendant No.1 entered into lease agreement with the first respondent – plaintiff on 18-08-1967 for a period of about 20 years and later it was extended for another period of 20 years which came to an end by 31-03-2007. Ex.A-1 is the letter addressed by the plaintiff to the first defendant to vacate the premises. It is admitted by her that though request was made by the appellant to extend the lease period for another 30 years, she refused to do so. Practically, the evidence of PW 1 remained unchallenged. DW 1 who is examined on behalf of the defendant No.1 stated that when the lease period expired, the company made a request to the plaintiff to extend the lease period for another 30 years. He also admitted that they intended to vacate the premises as soon as they secure a suitable accommodation. For that purpose, the appellant also identified some sites for retail outlet of the petrol bunk, but that was not materialised. So from the evidence on record, it is clear that the lease period expired by 31-03-2007. Further, a specific plea has been taken in the written statement that the appellant would require six months or one year time to vacate the premises to enable it to secure a suitable alternative site. That period is also over. Therefore, considering the evidence on record, the trial Court rightly decreed the suit directing the defendants to vacate and deliver vacant possession of the schedule property to the plaintiff, and it requires no interference by this Court. Insofar as awarding of damages for use and occupation after expiry of the lease period is concerned, the respondent – plaintiff claimed damages at the rate of Rs.1,00,000/- per month. There was a rapid growth in that area because of starting of international airport and sharp rise of rents in and around the plaint schedule premises. Considering these aspects, the trial Court rightly granted Rs.25,000/- per month towards damages for use and occupation. Considering the locality of the outlet and considerable increase of rents in that area, granting of Rs.25,000/- per month towards damages for use and occupation cannot be said to be on higher side or unreasonable. There are no grounds to interfere with the judgment and decree of the trial Court. 9. The appeal fails and is accordingly dismissed confirming the judgment and decree dated 30-04-2011 in O.S No.904 of 2008 on the file of the II Additional District Judge, Ranga Reddy District at L.B. Nagar. In the circumstances of the case, no order as to costs. 10. In view of the fact that for the last 40 years, the appellant is running a retail outlet petrol bunk, a reasonable time can be granted to enable it to secure alternative accommodation for the purpose of starting retail outlet. Accordingly, the appellant is granted time to vacate the premises till 31-12-2011.

THE HON’BLE SRI JUSTICE K.C. BHANU A.S No. 362 OF 2011 Date: 24-08-2011   Between Bharat Petroleum Corporation Limited, rep., by its Territory Manager and Authorised Signatory, Hyderabad Retail Territory, P.B.No.04,, H.C.L., Cherlapalli, now at Tadbund, Secunderabad …..Appellant And Smt. Hashimunnisa Begum and another …..Respondents                     … Continue reading

Indian Partnership Act, Section 69(2)-bar under-scope of-explained. The question involved in the instant appeal was whether a suit by an unregistered firm to enforce a right not arising from a contract to which it was a party or arising from a contract entered into by it in connection with its business, but for the enforcement of a right arising out of a contract entered into by its partner when the firm was his proprietary concern which he continued to the partnership when constituted was maintainable against third party and not barred under the provisions of section 69(2) of the Indian Partnership Act. =Allowing the appeals, the court HELD. 1.1 Once registration is granted, even though after the filing of the suit, the suit should be held to be maintainable as from the date on which registration is granted subject to the law of limitation. Subsequent registration of the firm would not cure the initial defect in the filing of the suit. [527-F-G; 528-D] M/s.Shreeram Finance Corporation v. Yasin Khan and Ors, [1989] 3 SCC 476; D.D.A. v. Kochhar construction Work and Anr., [1998] 8 SCC 559 and U.P. State Sugar corporation Ltd. v. Jain Construction Co. and Anr., [2004] 7 SCC 332, relied upon. 1.2. After coming into the existence of the partnership and having transferred to the said partnership all his assets and liabilities of his proprietary concern, the erstwhile proprietor has no subsisting exclusive right to enforce the liability against others since such rights as he had as the proprietor vested in the partnership, Such a partner in his personal capacity could not sue the respondent firm for the amount in question, if the firm of which he was a partner was for reason of non-registration unable maintain a suit. He can not, therefore, either file a suit for claim any relief in the suit filed by the partnership asserting his right as the erstwhile proprietor. [529-F-G] Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (D) & Ors., [1966] 3 SCR 400, relied upon. 1.3. The bar under Section 69(2) would apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the firm with a third party, the bar of Section 69(2) will not apply. [533-E-F] Haldiram Bhujiawala and Anr. v. Anand Kumar Deepak Kumar and Anr., [2000] 3 SCC 25, relied upon. Raptakos Brett & Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184, referred to. 2.1. Observations made and principles laid down in a judgment if obiter do not have the force of a binding precedent. However, that does not preclude the Court from appreciating the reasons given for the principles laid down, and if the reasoning appears to the Court to be cogent, and merits acceptance, the same may be accepted by the Court and applied to the case before it. V.A. Mohta, B.J. Aggarwal, S.G. Hartalkar, J.S. Wad, Ashishwad, Neeraj Kumar, Arvind Gupta and Simanti Chakrabarti for the Appellant. S.V. Deshpande, Prashant Kumar, V. Sheshagiri and Rahul Prasanna Dave for the Respondents.=, 2006(8 )Suppl.SCR524 , , 2006(12 )SCALE232 , 2007(4 )JT564

CASE NO.: Appeal (civil) 4092 of 1998 PETITIONER: Purushottam & Anr RESPONDENT: Shivraj Fine Art Litho Works & Ors DATE OF JUDGMENT: 07/11/2006 BENCH: B.P. Singh & Altamas Kabir JUDGMENT: J U D G M E N T B.P. Singh, J In this appeal by special leave the plaintiffs are the appellants. Their suit against … Continue reading

Code of Civil Procedure, 1908 – O. 38 r. 5 – Attachment before judgment -Application for, against partnership firm and its partners – Challenge to, on the ground that borrower was not a partner and borrowal of money was not for the benefit of the firm – Held: All of them were partners at the relevant time – Plaintiff could enforce his claim against the firm as also its partners – Lender filed application for attachment to protect his interest in the event suit is decreed – Court was to form prima facie opinion at that stage without going into the correctness of the contentions raised – On facts, partners would not be seriously prejudiced on furnishing security, thus, interference under Article 136 not called for – Constitution of India, 1950- Article 136 – Partnership Act, 1932. The appellant-defendant nos. 4 to 7 were partners of the defendant no. 1 firm. Defendant no. 3 was also the partner. It is alleged that defendant no. 2, who was described as the managing partner of the firm fraudulently obtained loan from the plaintiff-respondent and also furnished a personal guarantee. The cheque was issued in the name of defendant No. 1. Defendant no. 3 executed a pronote. Plaintiff-respondent filed suit for realisation of the amount against all the defendants. It also filed application under O. 38 r. 5 CPC for attachment before judgment. The High Court rejected the application since the defendant no. 2 took the loan in connivance with defendant no. 3 and 8 not for the benefit of partnership firm. Aggrieved, plaintiff filed appeal which was allowed. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1 The firm would be bound only when a transaction is entered into by a partner of the firm subject to the limitations contained in the Partnership Act, 1932. [Para 9] [213-G] 1.2 The amount of loan was advanced by a cheque. The said cheque was drawn in the name of the partnership firm. Concededly again, the appellants were the partners thereof at the relevant time, although an endeavour was made before the Single Judge of High Court to show that they ceased to be so. Having regard to the fact that they purported to have retired from the partnership firm in the year 2001 and the transaction between the parties are of the year 2000, prima facie the liability of the appellants could not have been ignored. [Para 11] [214-A, B, C] 1.3 The application for attachment before judgment was filed by the plaintiff so as to protect his interest in the event the suit is decreed. In such a situation, the court exercises jurisdiction under Order XXXVIII Rule 5 CPC. It need not go into the correctness or otherwise of all the contentions raised by the parties. Allegations against defendant Nos. 2, 3 and 8 are required to be gone into at the hearing of the suit. The plaintiff is entitled to secure his interest keeping in view the amount involved in the suit. A cheque had been issued in the name of the firm. The appellants are partners thereof. A pronote had been executed by a partner of the firm. Thus, even under the Partnership Act prima facie the plaintiff could enforce his claim not only as against the firm but also as against its partners. [Paras 12, 13 and 14] [214-D, F, G, H; 215-A] 1.4 In any view of the matter as the appellants are not seriously prejudiced if they furnish the security, this, is not a fit case where this Court should exercise its jurisdiction under Article 136 of the Constitution of India. [Para 15] [215-B] K. Ramamurthy, Kawaljit Kochar, Rishi Dewan and Kusum Chaudhary for the Appellants. Amit Sharma and B.V. Anupam Lal Das for the Respondents.

CASE NO.: Appeal (civil) 802 of 2008 PETITIONER: Rajendran and others RESPONDENT: Shankar Sundaram and others DATE OF JUDGMENT: 30/01/2008 BENCH: S.B. SINHA & HARJIT SINGH BEDI JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 22880 of 2004) S.B. SINHA, J. 1. Leave granted. 2. Appellants herein were defendant Nos. 4 to 7 in the … Continue reading

small cause suit – proof of promissory note-The plaintiff besides examined himself as P.W.1 examined attestor of the Ex.A.1-promissory note as P.W.2. Though the defendant denied the execution, he did not choose to make any application seeking expert opinion on the signatures of him appearing in Ex.A.1-promissory note. Indeed, the trial Court compared the signatures of the defendant appearing on the written statement, vakalat, deposition with the signature appearing on the Ex.A.1 promissory note and came to the conclusion that they are of the one and the same person. The plaintiff besides examining himself as P.W.1 examined attestor as P.W.2. The evidence of P.Ws.1 and 2 is cogent and consistent. Once the plaintiff is able to prove the execution of Ex.A.1-promissory note, it is for the defendant to move an application to get the signatures appearing on Ex.A.1 promissory note examined by an expert. Such course has not been adopted by the defendant. There is no flaw in the judgment impugned in the revision.

HON’BLE SRI JUSTICE B. SESHASAYANA REDDY     CIVIL REVISION PETITION No.2837 of 2009     ORDER:-     This revision is directed against the judgment and decree dated 13-04-2009 passed in Small Cause Suit No.9 of 2008 on the file of the Senior Civil Judge at Narayanpet, whereby and whereunder the learned Senior Civil … Continue reading

A conjoint reading of all the translations of Ex.B1 shows that Sharfuddin had recorded natural love and affection as well as services rendered by his wife and gifted the house property to her for making provision for her life time maintenance. The translations of Exs.A7 and B2 are similar to that extent, except the word ‘life time maintenance’ is missing in Ex.B2-translation. The translation supplied by the Registry specifically states that apart from the natural love and affection, faithful services, ‘for the purpose of maintenance’ the gift was made in favour of Mahboob Bee. The Urdu text used the word ‘parvarish’ and ‘Tajist’. While parvarish means nourishment, sustenance, protection, patronage, rearing, fostering, upbringing etc., Tajist means, for the purpose. The said two words, therefore, unmistakably point out that Sharfuddin wanted to make provision for life time maintenance of his wife and for her sustenance and in recognition of services rendered by her and out of natural love and affection, the said gift deed was made. It is also very striking to note that in all the three translations it is mentioned that the donor had gifted the suit schedule house to Mahboob Bee as well as to his both sons viz., Abdul Khader and Muzaffaruddin. Exs.A7 and Ex.B2-translations show that the gift was made by Sharfuddin in favour of Mahboob Bee as well as to his sons. The translation supplied by the Registry also confirms to the same. A reading of the entire text of Ex.B1-gift deed would unmistakably point out that while gifting two other house properties to each of his two sons, the suit schedule property was gifted by Sharfuddin to his wife Mahboob Bee for her life time maintenance and for her protection as well as to his two sons together. The Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) succinctly stated that gifts of the usufruct (ariyat) is recognized under Muslim law and such gift is not a gift of corpus. Further there was no necessity for the donor to write the names of his two sons also while making the gift to his wife Mahboob Bee if really corpus was gifted to late Mahboob Bee. The trial Court has completely missed the aforesaid aspect and proceeded on the footing as if it is a gift of corpus to Mahboob Bee. It is no doubt true that if any condition is attached to a gift of corpus, which runs inconsistent with or in derogation of gift, such condition is held to be void as per Section 164 of the Mulla’s Principles of Mahomedan Law. To my mind, a fair reading of the document Ex.B1 with the help of translations on record, shows that the gift deed-Ex.B1 in respect of suit schedule property was in two parts, while usufruct was gifted to Mahboob Bee, the corpus was gifted to both of his sons. When once we reached to the conclusion that the gift to Mahboob Bee was only of usufruct and not corpus, Section 164 of the Mulla’s Principles of Mahomedan Law by itself will have no application to the facts of the present case. Consequently after the death of Mahboob Bee on 20.6.1988, the suit schedule house stands gifted to both the sons, each having an equal share. The conclusion of the trial Court that there was no Matruka property left by Mahboob Bee is, therefore, unsustainable. Equally inconsequential the further contention of the defendants that Mahboob Bee exercised her right and sold the property to D.W.2 under Ex.B3. Once it is found that Mahboob Bee had only life interest and was entitled to the usufruct only for her life sustenance, it cannot be said that she had a right to alienate the property. As noticed above, Mahboob Bee died on 20.6.1988 and the present suit for partition was filed on 11.2.1993 within about five years of her death. Once the plaintiff is held to be entitled to seek a decree for partition, any unauthorized alienation made by Mahboob Bee has to yield to the said partition. It is not necessary for the plaintiff to separately question the alienation made by Mahboob Bee under Ex.B3 in favour of D.W.2. In my view, therefore, the points 1 and 2 deserve to be answered in favour of the plaintiffs/appellants and consequently the judgment of the trial Court is liable to be reversed. 16. Accordingly the appeal is allowed, the judgment and decree passed by the trial Court are set aside and the suit filed by the plaintiffs/appellants shall stand decreed as prayed for. No costs.

THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.C.C.A.NO. 69 of 2001 31-05-2010 Abdul Khader (died) and others Muzaffaruddin (died) and others Counsel for appellants: Mr. K. Prathap Reddy Counsel for Respondents: Mr. Basith Ali Yavar :JUDGMENT: 1. Plaintiffs in OS.No. 147 of 1993 on the file of the VI-Addl. Senior Civil Judge, City Civil Court, … Continue reading

whether acceptance of a gift by a minor is valid in Muslim Law -There are five types of gifts as per Muslim personal law, they are: (i) Hiba (ii) Ariat (iii) Sadaqa (iv) Hiba-bil.iwaz (v) Hiba-ba-sharat-ul-iwaz.

IN THE HIGH COURT OF KERALAAT ERNAKULAM RSA.No. 474 of 2007() 1. SALEKATH BEEVI, W/O. LATE ABDUL KHADER, … Petitioner Vs 1. MUMTHAS BEEVI, D/O. AISHA BEEVI, … Respondent For Petitioner :SRI.S.SANAL KUMAR For Respondent :SRI.K.S.HARIHARAPUTHRAN The Hon’ble MR. Justice P.BHAVADASAN Dated :29/06/2010 O R D E R P. BHAVADASAN, J. – – – – … Continue reading

Land laws – Suit for title and possession of property – Allegation of encroachment of property by defendant – Said suit property purchased by original owner, which thereafter by partition fell to share of vendor who sold it to plaintiff – Dismissal of suit, by trial court and first appellate court – Set aside by Letters Patent Bench – Justification of – Held: Not justified – Title is to be established by tracing it to a point beyond a minimum of twelve years before the suit – Neither title of plaintiff nor previous possession of plaintiff nor encroachment by defendants made out – Ownership or possession of plaintiff and his vendors for period of 12 years prior to suit not established – Thus, order of Letters Patent Bench set aside and that of trial court and first appellate court upheld. AP-original owner purchased property by sale deed dated 2.2.1932 (Ex. A-7 to A-8). He died issueless. There was partition among his brothers and nephews. The suit property was allotted to LA, his brothers and sister. They sold the property to the first respondent-plaintiff under a sale deed executed in year 1982. It was first respondent-plaintiff’s case that appellants-defendant-had encroached the suit property. First respondent filed suit for declaration of title and possession of the property against defendants. Both the trial court and the High Court dismissed the suit holding that the plaintiff failed to establish title and possession. However, the Division Bench of High Court allowed the Letters Patent Appeal. Hence the present appeal. =Allowing the appeal, the Court HELD: 1.1. Title to an immovable property is usually established by tracing it for a period of thirty years, many a time, the search and tracing is restricted to a minimum period of twelve years, presumably with reference to Articles 64 and 65 of Limitation Act, 1963. Where the title is traced to a grant or transfer by the government or a statutory development authority, as contrasted from a transfer from a private person, the search is not taken prior to such transfer/grant, even if such transfer/grant is within 12 years. In a suit for declaration of title filed in 1984, reliance on title deeds dated 2.3.1982 (sale deed) and 25.8.1981 (partition deed) would not establish title as that would trace title hardly for 3 years. To establish the title, it was necessary to trace it to a point beyond a minimum of 12 years before the suit. This became necessary as the plaintiff did not have possession, nor were any revenue entries available to support the ownership or possession of plaintiff and his vendors for a period of 12 years and more, prior to the suit. [Para 7] [864-D-F; 866-C-D] 1.2. Ex.A7 is a sale deed dated 2.2.1932 executed by one SM in favour of AP. The description of the property sold under the said deed is vague and inconsistent. In respect of Ex.A7-sale deed dated 2.2.1932 in favour of AP executed by one MP, the position is equally confusing. The actual extent of land was sold in four survey numbers. What is the extent that was sold from out of sy. no.407/2B was not mentioned. Nor does it refer to exclusive possession. Therefore, trial court held that Ex.A7 and A8 are not of any assistance to establish the title or exclusive possession in regard to 5 acres 11 cents in survey no. 407/2B-2. [Paras 9, 10 and 11] [865-E; 866-C- D; 866-H; 867-A] 1.3. Ex.A13 is a mortgage deed executed by AP in favour of MN on 2.2.1932 itself and Ex.A14 is deed of assignment of the said possessory mortgage on 27.11.1939 by MN in favour of TH. This would mean that AP was never in possession of sy. no.407/2B after 2.2.1932. There is no explanation as to whether AP redeemed the mortgage and got back possession of the property or how and to whom possession passed on from TH. Ex.A13 & A14 instead of proving the title or possession, add to the confusion by showing that AP was never in possession. The marking of the mortgage deed and assignment deed as Exs.A13 & A14 at the stage of Letters Patent Appeal without any explanation or connecting or linking oral evidence, makes it difficult to accept these two documents as relevant documents. Thus, the finding of the trial court upheld by Single Judge that inspite of the sale deed dated 2.3.1982 in his favour or the earlier deeds, plaintiff had not made out title or possession in regard to sy. no.407/2B-2 measuring 5 acres 11 cents get fortified. [Para 12] [867-B-F] 1.4. Adangal extract- Ex. A6 may not really help the plaintiff to prove possession. Ex.A6 is said to cover the period 1974 to 1986, including 1984 to 1986, when suit by plaintiff was pending. That is Ex.A6 shows plaintiff as the person in possession in regard to the suit land when the suit was filed in 1984 and even thereafter. But plaintiff himself admits that even before the suit was filed in 1984, the defendants were in possession of the suit land and that he was not in possession when the suit was filed or thereafter. This is also supported by the evidence of the Court Commissioner who found the defendants in possession. Therefore, Ex.A6 showing that plaintiff was in possession from 1974 to 1986 cannot be believed or relied upon to establish the possession of plaintiff. On the other hand it lends support to the defendants’ claim that plaintiffs and his predecessors being rich and influential persons, had managed to get their names entered in the revenue records belatedly and in collusion with the revenue officials. [Para 13] [868-B-E] 1.5. The Letters Patent Bench overlooked the fact that a plaintiff in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants; and that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours/villagers, were examined. Therefore, there was no evidence about previous possession. Plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession. [Para 14] [868-F-G] 1.6. The Letters Patent Bench proceeded on the basis that the suit was dismissed on the ground of adverse possession of defendants. The trial court and the first appellate court on examination of the title found that plaintiff had made out neither title nor previous possession. They also found that defendants were in possession. The trial court and the first appellate court also noticed the significant fact that the plaint and the evidence of plaintiff are wholly silent as to when, that is in which year, the defendants allegedly encroached upon the suit property. The plaint merely stated that during the absence of plaintiff, the defendants had encroached the suit property in entirety. Neither the date, month or year is given. The trial court also observed that defendants should be taken as having established their adverse possessory title also and consequently, suit should be held to be barred by limitation. But even without the said finding, the suit was liable to be dismissed as neither title of plaintiff, nor previous possession of plaintiff, nor encroachment by defendants was made out. Therefore, the Letters Patent Bench interfered with the well reasoned judgments of the trial court and first appellate court which were based on concurrent finding of facts, without justification, and in the absence of any clear and acceptable evidence. This was unwarranted. The order of the Letters Patent Bench is set aside, and the judgment and decree of the Single Judge confirming the dismissal of the suit is restored. [Paras 15 and 16] [868-H; 869-A-E] Asha Devi vs. Dukhi Sao AIR 1974 SC 2048 and Umabai vs. Nilkanth Dhandiba Chavan 2005 (6) SCC 243, referred to. Case Law Reference: AIR 1974 SC 2048 Referred to. Para 6 2005 (6) SCC 243 Referred to. Para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5455 of 2002. From the Judgment & Order dated 13.11.2001 of the High Court of Judicature at Madras in L.P.A. No. 125 of 2001. Hari Shankar K., for the Appellant. V. Raghava Chari, R. Anand Padmanabhan, S.R. Sundar, Pramod Dayal, R. Nedumaran for the Respondent.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5455 OF 2002 T.K. Mohammed Abubucker (D) Thr. LRs. & Ors. … Appellant(s) Vs. P.S.M. Ahamed Abdul Khader & Ors. … Respondent(s) JUDGMENT R.V. RAVEENDRAN, J. The defendants in a suit for declaration of title and possession are the appellants in this appeal … Continue reading

Registration Act, 1908: s.49, proviso – Unregistered sale deed is admissible in evidence in a suit for specific performance of the contract – Evidence Act, 1872 – Specific performance – Transfer of property Act, 1882. The question which arose for consideration in the present appeal was whether the courts below erred in holding that an unregistered sale deed was not admissible in evidence in a suit for specific performance of the contract. =Allowing the appeal, the Court HELD: The Trial Court erred in not admitting the unregistered sale deed in evidence in view of the proviso to Section 49 of the Registration Act, 1908 and the High Court ought to have corrected the said error by setting aside the order of the trial court. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act. [Paras 8, 11, 16] [519-C-D; 521-A-E; 525-B] K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564, relied on. Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy (1999) 7 SCC 114, referred to. Case Law Reference: (2008) 8 SCC 564 relied on Para 12 (1999) 7 SCC 114 referred to Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3192 of 2010. From the Judgment & Order dated 13.11.2008 of the High Court of Judicature at Madras in C.R.P.(PD) No. 261 of 2008. K.V. Vishwanathan, B. Rajunath, Vijay Kumar for the Appellant. T.S.R. Venkatramana, G.S. Mani, R. Satish for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3192 OF 2010 [Arising out of SLP (C) No. 1451 of 2009] S. Kaladevi …. Appellant Vs. V.R. Somasundaram & Ors. ….Respondents JUDGMENT R.M. LODHA,J. Leave granted. 2. The short question is one of admissibility of an unregistered sale deed in a … Continue reading

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