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Mohammadan law: Hiba (gift) – Essential requisites of – Held: Are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee and (3) delivery of possession -The rules of Mohammadan Law do not make writing essential to the validity of a gift and an oral gift fulfilling all the three essentials make the gift complete and irrevocable – However, the donor may record the transaction of gift in writing – In the instant case, as all the three essential requisites are satisfied by the gift deed – The gift in favour of defendant 2 became complete and irrevocable -Judgment of High Court set aside and that of trial court, holding the gift deed genuine and binding between the parties, restored -Transfer of Property Act – ss. 129 and 123. Transfer of Property Act, 1882: ss. 123 and 129 – Deed of gift executed by a Mohammadan – HELD: Is not the instrument effecting, creating or making the gift – Such writing is not a document of title but is a piece of evidence – Section 129 preserves the rule of Mohammadan Law and excludes the applicability of s. 123 to a gift of an immovable property by a Mohammadan – In the instant case, the gift deed is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act – Registration Act, 1908 – s.17. In a suit for partition between the parties governed by Sunni Law, defendant no. 2 set up the defence that his father executed a hiba (gift deed) on 5.2.1968 and gifted his properties to him, and put him in possession of the hiba properties. The trial court held the hiba as true, valid and binding between the parties, and dismissed the suit. In the appeal, before the High Court it was contended for the plaintiffs that the gift deed dated 5-2-1968 being in writing was compulsorily required to be registered and stamped and in the absence thereof the gift deed could not be accepted and relied upon. The High Court allowed the appeal and remanded the matter to the trial court for passing a preliminary decree.=Allowing the appeal filed by heirs of defendant no.2, the Court HELD: 1.1. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. The rules of Mohammadan Law do not make writing essential to the validity of a gift; and an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. [para 27] [1175-h; 1176-a-b] 1.2. Merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to be in conformity with the rule of gifts in Mohammadan Law. [para 29] [1176-H; 1177-A-C] 1.3. A deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence; such writing is not a document of title but is a piece of evidence. [para 32] [1178-A-B] Mahboob Sahab v. Syed Ismail and others 1995 (2) SCR975= (1995) 3 SCC 693 – relied on. Nasib Ali v. Wajed Ali AIR 1927 Cal 197; Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41; Jubeda Khatoon v. Moksed Ali AIR 1973 Gauhati 105; and Makku Rawther’s Children: Assan Ravther and others v. Manahapara Charayil AIR 1972 Kerala 27- approved. Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199; Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113; Amirkhan v. Ghouse Khan (1985) 2 MLJ 136; Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 JammuAND Kashmir 59; and Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271 – disapproved. Mohammad Abdul Ghani (since deceased)AND ANOTHERv. Fakhr Jahan BegamAND OTHERS 1922 (49) IA 195- referred to Mohammadan Law by Syed Ameer Ali; Mahomedan Law by Mulla, 19th Edition 5(pp.696-697); Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182; and Mulla, Principles of Mahomedan Law (19th Edition), Page 120 -referred to. 2.1. Section 17(1)(a) of the Registration Act, 1908 leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. Section 123 of the Transfer of Property Act, 1882 lays down the manner in which gift of immoveable property may be effected and prescribes that transfer of immovable property by gift must be effected by a registered instrument. However, an exception is carved out in s. 129 of the T.P. Act with regard to the gifts by a Mohammadan. [para 14,15 and 18] [1164-B-E; 1166-A] 2.2. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of s. 123 of T.P. Act to a gift of an immovable property by a Mohammadan. It is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered u/s. 17 of the Registration Act. Each case would depend on its own facts. [para 31] [1177-F-G] 2.3. In the inastant case, the gift was made by the father of defendant no. 2 by a written deed dated 5.2.1968 in his favour in respect of the properties `A’ schedule and `B’ schedule appended thereto. The gift – as is recited in the deed – was based on love and affection for defendant no. 2 as after the death of donor’s wife, he has been looking after and helping him. Therefore, it cannot be said that because a declaration is reduced to writing, it must have been registered. The acceptance of the gift by defendant no 2 is also evidenced as he signed the deed. He was residing in the `B’ schedule property consisting of a house and a kitchen room appurtenant thereto and, thus, was in physical possession of residential house with the donor. The trial court on consideration of the entire evidence on record has recorded a categorical finding that the donor, executed the gift deed dated 5-2-1968 in favour of donee, the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee, and thus all the three essentials of a valid gift under the Mohammadan Law were satisfied. The view of the trial court is in accord with the legal position. The gift deed dated 5.2.1968 is a form of declaration by the donor and not an instrument of gift as contemplated u/s 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5.2.1968, the gift in favour of defendant 2 became complete and irrevocable. [para 34] [1178-G-H; 1179-A] 2.4. The High Court in the impugned judgment relied upon the Full Bench decision in the case of Tayyaba Begum which is not a correct view and does not lay down the correct law. The judgment and order passed by the High Court is set aside. The judgment and decree passed by the Principal Subordinate Judge is restored. [para 35-36] [1179-B-C] Case Law Reference: 1922 (49) IA 195 referred to para 12 1995 (2) SCR 975 relied on para 13 AIR 1927 Cal 197 approved para 19 1954 2 MLJ 113 disapproved para 20 AIR 1962 Andhra Pradesh 199 disapproved para 21 1972 Kerala 27 approved para 22 AIR 1974 JammuAND Kashmir 59 disapproved para 23 AIR 1975 Andhra Pradesh 271 disapproved para 24 (1985) 2 MLJ 136 disapproved para 27 AIR 1984 Gauhati 41 approved para 28 AIR 1973 Gauhati 105 approved para 28 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1714 of 2005. From the JudgmentAND Order dated 13.9.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in First Appeal No. 1685 of 1988. A.K. Srivastav, G.R.K. Paramahamsa, Lokesh Kumar (for M.K.Garg) for the Appellants. V. Mohana for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1714 OF 2005 Hafeeza Bibi & Ors. …. Appellants Versus Shaikh Farid (Dead) by LRs. & Ors. ….Respondents JUDGMENT R.M. Lodha, J. This appeal, by special leave, arises from the judgment of the High Court of Andhra Pradesh dated September 13, 2004 … Continue reading
ACQUITTAL under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as the ‘IPC’).= Admittedly, there was a divorce between the parties. Therefore, the question of demand of dowry or ill-treatment or harassment could not arise after 8 years of divorce decree by the court. The mother of Ratna has deposed about the illicit relationship of the appellant and another woman and the appellant wanted to marry that woman. In case the parties had separated by a divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned about such a relationship. 15. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.= whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s). – In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The High Court did not consider the matter in correct perspective nor observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside. The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.248 of 2007 Bhadragiri Venkata Ravi …Appellant Versus Public Prosecutor High Court of A.P., Hyderabad …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been filed against the judgment and order dated … Continue reading
V. Vijay Sai Reddy- cancellation of bail granted to the respondent herein.= It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge granting bail. = While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.= It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words “reasonable grounds for believing” instead of “the evidence”= whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody. 33) The appeal is allowed.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 729 OF 2013 (Arising out of SLP (Crl.) No. 5946 of 2012 Central Bureau of Investigation …. Appellant(s) Versus V. Vijay Sai Reddy …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) This … Continue reading
Ponnala Lakshmaiah -whether the High Court of Andhra Pradesh was right in holding that the election petition filed by respondent No.1 against the appellant who happens to be the successful candidate in the election to the 98-Jangaon Assembly Constituency in the State of Andhra Pradesh, disclosed a cause of action and could not therefore be dismissed at the threshold. The factual matrix in which the election petition came to be filed by the respondent has been set out at length by the High Court, hence need not be recounted except to the extent the same is essential for the disposal of the appeal. The High Court has, while holding that the averments made in the election petition raised triable issues and disclosed a cause of action, observed: “23. As seen from the statement showing voter turn out report in connection with General Elections, 2009 to 98-Jangaon Legislative Assembly Constituency on 16.04.2009, the total votes polled, as reported by the Returning Officer, is shown as 1,50,678 from 251 polling stations. Whereas the final result sheet in Form no.20, total valid votes is shown as 1,51,411. So, from this document, it is clear that prima facie a proper counting had not taken place. Therefore, prima facie it can be said to be an irregularity on the part of the Returning Officer involved in dereliction of the duty. Similarly, there is a specific allegation that out of 653 postal ballots, the election petitioner would have secured more than 300 votes, if properly counted, and out of the said votes, 142 votes which were validly polled in favour of the election petitioner, were illegally declared as invalid and another 52 votes polled in favour of the election petitioner were counted in favour of the first respondent, and 45 invalid votes were illegally counted in favour of the first respondent. Since the margin between the elected candidate and the nearest rival is only 236 votes, had postal ballots been counted properly, then there would be a possibility of materially affecting the result of the election in so far as the returned candidate. So, under no stretch of imagination, it can be said that the allegations in the Election Petition are vague. 24. No doubt, it is true that in view of the decision of the Apex Court, recounting of the votes cannot be resorted to as a matter of course and every endeavour should be made to protect the secrecy of the ballots. But, at the same time suspicion of the correctness of the figures mentioned in the crucial documents of the statement showing voters’ turn out report and Form-20-final result sheet, where there is a variance between total number of votes polled and votes counted. The two basic requirements laid down by the Apex Court, to order recounting, are: (a) the election petition seeking recount of the ballot papers must contain an adequate statement of the material facts on which the allegations of irregularity or illegality in counting are founded; and (b) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary. Therefore, the questions–whether counting of votes by the officials is in accordance with the rules and regulations and also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper counting of votes polled in favour of the returned candidate, are required to be decided after adducing evidence only. The allegation that because of the improper counting of postal ballots polled in favour of the election petitioner, the election petitioner could not secure 300 votes, if accepted as true at this stage, it would materially affect the election result because the margin of votes polled between returned candidate and his nearest rival is very narrow. In the Election Petition, the allegation with regard to irregularity or illegality in counting of votes, which affects election of the returned candidate materially, has been clearly stated in the Election Petition. It is not a vague or general allegation that some irregularities or illegalities have been committed in counting. Similarly, there is allegation that in the first instance, after totalling of all votes, the election petitioner secured a majority of 44 votes and the same was informed to the electronic media, and some TV channels telecasted the same immediately. A Compact Disc (CD) is also field along with the Election Petition, in support of the said allegation. It is also alleged that none of the contested candidates filed any petition for recounting of votes within maximum period of five minutes after the election petitioner was declared to have secured a majority of 44 votes. Therefore, there is prima facie material to show that there was irregularity or illegality in counting of votes which resulted in affecting materially the election of the returned candidate, so as to proceed further with the Election Petition. As, at this stage, prima facie case for recounting, as seen from the allegations in the Election Petition, is made out, the pleadings cannot be struck off as unnecessary. Therefore, rejecting the Election Petition at this stage does not arise.”- There is no denying the fact that the election of a successful candidate is not lightly interfered with by the Courts. The Courts generally lean in favour of the returned candidates and place the onus of proof on the person challenging the end result of an electoral contest. That approach is more in the nature of a rule of practice than a rule of law and should not be unduly stretched beyond a limit. We say so because while it is important to respect a popular verdict and the courts ought to be slow in upsetting the same, it is equally important to maintain the purity of the election process. An election which is vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 & 123 of the Act cannot obviously be recognised and respected as the decision of the majority of the electorate. The Courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper-technical in its approach & without being oblivious of the ground realities. Experience has shown that the electoral process is, despite several safeguards taken by the Statutory Authorities concerned, often vitiated by use of means, factors and considerations that are specifically forbidden by the statute. The electoral process is vulnerable to misuse, in several ways, in the process distorting the picture in which the obvious may be completely different from the real. Electoral reforms is, therefore, a crying need of our times but has remained a far cry. If the Courts also adopt a technical approach towards the resolution of electoral disputes, the confidence of the people not only in the democratic process but in the efficacy of the judicial determination of electoral disputes will be seriously undermined. This Court has in several pronouncements while emphasising the need to leave the elections untouched, reiterated, the need to maintain the purity of elections and thereby strengthening democratic values in this country. The decisions of this Court in T.A. Ahammed Kabeer v. A.A. Azeez & Ors. (2003) 5 SCC 650 and P. Malaichami v. M. Andi Ambalam and Ors. (1973) 2 SCC 170 express a similar sentiment. 23. Suffice it to say, that in the absence of any provision making breach of the proviso to Section 83(1), a valid ground of dismissal of an election petition at the threshold, we see no reason why the requirement of filing an affidavit in a given format should be exalted by a judicial interpretation to the status of a statutory mandate. A petition that raises triable issues need not, therefore, be dismissed simply because the affidavit filed by the petitioner is not in a given format no matter the deficiency in the format has not caused any prejudice to the successful candidate and can be cured by the election petitioner by filing a proper affidavit. In the result, this appeal fails and is dismissed with costs assessed at Rs.25000/-.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4993 OF 2012 (Arising out of S.L.P. (C) No. 20013 of 2010) Ponnala Lakshmaiah …Appellant Versus Kommuri Pratap Reddy & Ors. …Respondents J U D G M E N T T.S. THAKUR, J. 1. … Continue reading
Intellectual Property – Passing-off in trade mark – Infringement of copyright – Appellant is sole proprietor of a Karnataka based firm carrying on manufacture of incense sticks (agarbathis), which adopted the trade mark `Eenadu’ and started selling its product in the State of Andhra Pradesh – Respondent company, engaged in the business of publishing a newspaper in Telugu entitled as `Eenadu’ and other businesses in the State of Andhra Pradesh, filed a suit for infringement of copyrights and passing-off trade mark – Whether the appellant should be permitted to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh – Held: The respondent company’s mark `Eenadu’ has acquired extraordinary reputation and goodwill in the State of Andhra Pradesh – `Eenadu’ means literally the products or services provided by the respondent company in the State of Andhra Pradesh – In this background, the appellant cannot be referred or termed as an honest concurrent user of the mark `Eenadu’ – Adoption of the words `Eenadu’ is ex facie fraudulent and mala fide from the very inception – By adopting the mark `Eenadu’ in the State of Andhra Pradesh, the appellant clearly wanted to ride on the reputation and goodwill of the respondent company – Permitting the appellant to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh would definitely create confusion in the minds of the consumers because the appellant is selling Agarbathies marked `Eenadu’ designed or calculated to lead purchasers to believe that its product Agarbathies are in fact the products of the respondent company – No one can be permitted to encroach upon the reputation and goodwill of other parties – This approach is in consonance with protecting the proprietary rights of the respondent company. The appellant is the sole proprietor of a Karnataka based firm carrying on manufacture of incense sticks (agarbathis), which adopted the trade mark `Eenadu’ and started selling its product in the State of Andhra Pradesh. The word `Eenadu’ means `this land’ in Kannada, Malayalam and Tamil languages and `today’ in Telugu language. The respondent company, which was engaged in the business of publishing a newspaper in Telugu entitled as `Eenadu’ and other businesses in the State of Andhra Pradesh, filed a suit for infringement of copyrights and passing-off trade mark. The respondent company contended that the use of the word `Eenadu’ by the appellant amounted to infringement of their copyright and passing-off in trade mark. The trial court partially decreed the suit of the respondent company by injuncting the appellant from using the words `Eenadu’ in the State of Andhra Pradesh. The appellant was not injuncted from using the words `Eenadu’ in the entire country other than in the State of Andhra Pradesh. The appellant filed appeal before the High Court. The respondent company also filed an appeal praying that the order of injunction to be made absolute and not be confined to the State of Andhra Pradesh. A Single Judge of the High Court dismissed the appeal filed by respondent company while allowing the appeal filed by the appellant. The respondent company filed Letters Patent Appeal before the Division Bench of the High Court which was allowed, thereby decreeing the original suit filed by the respondents in 1999. Hence the present appeals. Disposing of the appeals, the Court HELD: 1.1. The respondent company’s mark `Eenadu’ has acquired extra- ordinary reputation and goodwill in the State of Andhra Pradesh. `Eenadu’ newspaper and TV are extremely well known and almost household words in the State of Andhra Pradesh. The word `Eenadu’ may be a descriptive word but has acquired a secondary or subsidiary meaning and is fully identified with the products and services provided by the respondent company. [Para 100] [1053-G-H; 1054-A] 1.2. The appellant is a Karnataka based company which started manufacturing its product in Bangalore in the name of `Ashika’ and started selling its product in the State of Andhra Pradesh in 1995. The appellant started using the name `Eenadu’ for its Agarbathi and used the same artistic script, font and method of writing the name which obviously cannot be a co-incidence. The appellant company after adoption of name `Eenadu’ accounted for 90% of sale of their product Agarbathi. [Para 101] [1054-B] 3. On consideration of the totality of facts and circumstances of the case, the following findings and conclusions are arrived at: a) The respondent company’s mark `Eenadu’ has acquired extraordinary reputation and goodwill in the State of Andhra Pradesh. The respondent company’s products and services are correlated, identified and associated with the word `Eenadu’ in the entire State of Andhra Pradesh. `Eenadu’ means literally the products or services provided by the respondent company in the State of Andhra Pradesh. In this background the appellant cannot be referred or termed as an honest concurrent user of the mark `Eenadu’; b) the adoption of the words `Eenadu’ is ex facie fraudulent and mala fide from the very inception. By adopting the mark `Eenadu’ in the State of Andhra Pradesh, the appellant clearly wanted to ride on the reputation and goodwill of the respondent company; c) permitting the appellant to carry on his business would in fact be putting a seal of approval of the court on the dishonest, illegal and clandestine conduct of the appellant; d) permitting the appellant to sell his product with the mark `Eenadu’ in the State of Andhra Pradesh would definitely create confusion in the minds of the consumers because the appellant is selling Agarbathies marked `Eenadu’ as to be designed or calculated to lead purchasers to believe that its product Agarbathies are in fact the products of the respondent company. In other words, the appellant wants to ride on the reputation and goodwill of the respondent company. In such a situation, it is the bounden duty and obligation of the court not only to protect the goodwill and reputation of the respondent company but also to protect the interest of the consumers; e) permitting the appellant to sell its product in the State of Andhra Pradesh would amount to encouraging the appellant to practise fraud on the consumers; f) permitting the appellant to carry on his business in the name of `Eenadu’ in the State of Andhra Pradesh would lead to eroding extra- ordinary reputation and goodwill acquired by the respondent company over a passage of time; g) the appellant’s deliberate misrepresentation has the potentiality of creating serious confusion and deception for the public at large and the consumers have to be saved from such fraudulent and deceitful conduct of the appellant; h) permitting the appellant to sell his product with the mark `Eenadu’ would be encroaching on the reputation and goodwill of the respondent company and this would constitute invasion of proprietary rights vested with the respondent company and i) honesty and fair play ought to be the basis of the policies in the world of trade and business. [Para 102] [1054-C-H; 1055-A-H; 1056-A] 1.4. The law is consistent that no one can be permitted to encroach upon the reputation and goodwill of other parties. This approach is in consonance with protecting proprietary rights of the respondent company. [Para 103] [1056-B] Daimler Benz Aktiegesellschaft and another v. Hybo Hindustan AIR 1994 Delhi 239; Ruston & Hornsby Ltd. v. The Zamindara Engineering Co. 1969 (2) SCC 727; Laxmikant V. Patel v. Chetanbhai Shah and Another 2002 (3) SCC 65; Satyam Infoway Ltd. v. Sifynet Solutions (P) Limited 2004 (6) SCC 145; Ramdev Food Products (P) Limited v. Arvindbhai Rambhai Patel and Others 2006 (8) SCC 726; Midas Hygiene Industries (P) Ltd. and another v. Sudhir Bhatia and others (2004) 3 SCC 90; Madhubhan Holiday Inn v. Holiday Inn Inc. 100 (2002) DLT 306 (DB); Mahendra & Mahendra Paper Mills Limited v. Mahindra & Mahindra Limited (2002) 2 SCC 147; Bata India Limited v. Pyare Lal & Company, Meerut City & Ors. AIR 1985 All 242; N.R. Dongre and others v. Whirlpool Corporation and another (1996) 5 SCC 714; Godfrey Philips India Limited v. Girnar Food & Beverages (P) Limited (2004) 5 SCC 257; Info Edge (India) Private Limited and another v. Shailesh Gupta and another 98 (2002) DLT 499; Kamal Trading Co., Bombay and Others v. Gillette U.K. Limited [1988] IPLR 135; Honda Motors Company Limited v. Charanjit Singh & Others (101 (2002) DLT 359); M/s. Bengal Waterproof Limited Vs. M/s. Bombay Waterproof Manufacturing Company and Another (1997) 1 SCC 99; Heinz Italia and another v. Dabur India Limited (2007) 6 SCC 1; Ford Motor Company of Canada Limited and another v. Ford Service Centre 2009 (39) PTC 149; Prakash Roadline Limited v. Prakash Parcel Service (P) Ltd. 48 (1992) Delhi Law Times 390 – referred to. Taylor Mary Campbell v. Secretary of Health and Human Services 69 Fed. Cl. 775 (2006) [US Court of Federal Claims]; Lamilem Badasa v. Michael B. Mukasey 540 F.3d 909 [US Court of Appeals]; Reddaway & Co. and Another v. Banham & Co. and Another 1895-99 All ER 133; Reckitt & Colman Products Ltd. v. Borden Inc. and others 1990 (1) ALL ER 873; Harrods Limited v. R. Harrod Limited (1924) RPC 74; Harrods Limited v. Harrodian School Limited (1996) RPC 697; Office Cleaning Services Limited v. Westminster Office Cleaning Association 1944 (2) All ER 269; Taittinger and others v. Allbev Limitd and others (1994) 4 All ER 75 – referred to. Case Law Reference: AIR 1994 Delhi 239 referred to Para 29, 76 69 Fed. Cl. 775 (2006) referred to Para 37 540 F.3d 909 referred to Para 37 1895-99 All ER 133 referred to Para 61 1990 (1) ALL ER 873 referred to Para 63 1969 (2) SCC 727 referred to Para 64 2002 (3) SCC 65 referred to Para 65 2004 (6) SCC 145 referred to Para 66 2006 (8) SCC 726 referred to Para 67, 95 (1924) RPC 74 referred to Para 68 (1996) RPC 697 referred to Para 69, 73, 77 (2004) 3 SCC 90 referred to Para 70 (2002) DLT 306 (DB referred to Para 71 (2002) 2 SCC 147 referred to Para 74 AIR 1985 All 242 referred to Para75 (1996) 5 SCC 714 referred to Para 79 (2004) 5 SCC 257 referred to Para 80 98 (2002) DLT 499 referred to Para 81 1944 (2) All ER 269 referred to Para 82 (1994) 4 All ER 75 referred to Para 87 1988 IPLR 135 referred to Para 89 (2002) DLT 359 referred to Para 90 (1997) 1 SCC 99 referred to Para 93 (2007) 6 SCC 1 referred to Para 94 2009 (39) PTC 149 referred to Para 96 (1992) DLT 390 referred to Para 97 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6314-6315 of 2001. From the Judgment & Order dated 15.06.2001 of the High Court of Andhra Pradesh at Hyderabad in LPA Nos. 12 & 13 of 2001. Pratibha M. Singh, Kapil Wadhwa, Abhinav Mukherjee for the Appellant. C.A. Sundaram, Neelima Tripathi, G.V.S. Jagannadha Rao, Rohini Musa, Abhishek Gupta, K.V. Mohan, Zafar Inyat, Md. Niyazuddin, Anandh Kannan for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6314-15 OF 2001 T.V. Venugopal ` … Appellant Versus Ushodaya Enterprises Ltd. & Another … Respondents J U D G M E N T Dalveer Bhandari, J. 1. These appeals are directed against the judgment … Continue reading
Civil Procedure Code, 1908-Or 2 R 2 (3)-Bar in respect of claim of relief in subsequent suit-The plea of bar under Or 2 R 2 (3) CPC is maintainable only if the defendant files in evidence before the trial Court the pleadings in the previous suit to prove identity of cause of action in the two suits-Inference about the bar cannot be culled merely from the plaint in the second case-Attempt to bring the pleadings of the earlier suit on record at the stage of proceedings before Supreme Court not allowed. Trade and Merchandise Marks Act, 1958, Copy Right Act-In case of continuing or recurring wrong there would be corresponding, continuous or recurrent causes of action-Action for passing off-Continuing deceit gives rise to fresh causes of action-First suit based on infringement of plaintiff’s trade mark by defendants and passing off of the defendants goods as if they were plaintiff’s goods-Second suit based on continuous acts of infringement of its trade mark and continuous passing of action on the part of the defendants subsequent to filing of the earlier suit and continuing till the date of filing of the second suit-Cause of action in the two suits are different-One of the ingredients of Or 2 R 2 (3) thus having not been satisfied, bar thereunder could not operate. Limitation Act 1963 S.22-In a case of continuing breach of contract or continuing tort-A fresh period of limitation runs at every moment of the time during which the breach or the tort continues. The appellant company, manufacturing and marketing waterproof goods and rubberised waterproof raincoats throughout the country under the trade mark `Duck Back’, was registered under the Trade and Merchandise Marks Act, 1958 and the Copy Right Act. It filed original Suit No. 238 of 1980 in City Civil Court, Hyderabad against the respondents alleging that they were manufacturing and marketing similar products under the trade mark `Duck Back’ which phonetically and visually resembles the plaintiffs trade mark resulting in confusion among consumers and amounted to passing off the appellant’s goods as of the respondents’. The suit was dismissed on 6th April, 1982 on the ground that there was no infringement of the appellant’s trade mark `Duck Back’ by the respondents. In the year 1982 the second suit was filed in the City Civil Court, Hyderabad by the appellant against the respondents inter alia alleging that they were ill-advised and mis-informed in filing the first suit and further alleged that even after 1982, the respondents were carrying on infringement of their registered trade mark and were passing off their goods as the goods of the appellants and prayed for permanent injunction restraining the respondents from infringing their trade-mark and copy right as well as from passing off their goods as if they were of the appellant’s. The trial court held that the suit was barred by the provisions of Order 2 Rule 2 Sub Rule (3) of the CPC. On appeal, the High Court held that the appellants had proved their case of pasting off against the respondents but upheld the finding of the trial court that the suit was barred by order 2 Rule 2 sub rule (3) of the CPC and thus dismissed the same. Aggrieved, the plaintiff filed the present appeals. =Allowing the appeal, this Court HELD:1.1. A suit can be said to be barred under Order 2, Rule 2 (sub rule 3) CPC if it is shown that the second suit is based on the same cause of action on which the earlier suit was based; and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to him of that cause of action, the relief which the plaintiff had failed to pray in that suit can not be subsequently prayed for except with the leave of the Court. [702-H, 703-A- B] 1.2. As regards the plea of the respondents that suit is barred under order 2 Rule 2 sub rule (3) there is a threshold bar against them for their failure to bring on record of the trial court the pleadings of the earlier suit. No inference can be drawn in absence of the pleading of the previous suit being on record. Even before the High Court no attempt was made by them to produce the pleading in the earlier suit by way of an application for additional evidence. Production of the copy of the plaint by the respondent in the Counter Affidavit at the stage of proceedings before the Supreme Court is of no avail. [703-C, 704-G] 1.3. An action for passing off is a common Law remedy being an action in substance of deceit under the law of torts and for a fresh deceitful act, a person would naturally have a fresh cause of action. Thus every time when a person passes off his goods as those of another, he commits the act of such deceit. Similarly, when a person commits a breach of registered Trade Mark of another, he commits a recurring act of breach of such Trade Mark giving recurring and fresh cause of action at each time of such infringement. [708-C-E] 1.4. Order 2 Rule 2 sub rule (3) requires that the cause of action from the earlier suit must be the same on which the subsequent suit is based and unless there is identity of cause of action in both the suits, the bar of Order 2 Rule 2 sub rule (3) will not get attracted. Further, in cases of continuous causes of action or recurring causes of action, the bar can not be invoked. The cause of action in the first suit of 1980 was based on infringement of plaintiff’s Trade Mark “Duck Back” by the defendant till the date of the suit and the grievance regarding passing off the defendant’s goods as if they were plaintiff’s goods, was also confined to the situation prevailing on that date. But in the second suit the grievance of the plaintiff is entirely different and is not based on any act of infringement or passing off alleged to have been committed by the defendant in 1980. But the plaintiffs grievance is regarding the continuous acts of infringement of its Trade Mark `Duck Back’ and the continuous passing of action on the part of the defendants subsequent to the filing of the earlier suit and which had continued on the date of the second suit of 1982. The cause of action in the second suit is continuous and recurring. The infringement of the plaintiff’s Trade Mark “Duck Back” and passing of action on the part of the defendants in selling their goods by passing of their goods as if they were plaintiff’s goods, had continued all throughout uninterrupted in a recurring manner and such an action would give a recurring cause of action to the holder of the Trade Mark. [705-CE-F, 708,B] 2. By virtue of the provisions of section 22 of the limitation Act, 1973, in a case of continuing breach of contract or in a case of continuing tort, a fresh period of limitation begins to run every moment of the time during which the breach or the tort, as the case may be, continues. [709 AB] 3. As held by the High Court, on merits, the action of the defendants is actionable and amounts to acts of passing off as the waterproof raincoats manufactured by the first defendant bearing the trade mark “Dack Back” are phonetically and visually similar the those of the plaintiff bearing the trade marks “Duck Back”. The plaintiff had made out a case for actionable breach of infringement of plaintiff’s trade mark as well as actionable act of passing off by the defendants of their goods as if they were plaintiff’s goods and, therefore, the plaintiff’s suit would be required to be decreed. The judgment and order of dismissal of the plaintiff’s suit as passed by the Trial Court and as confirmed by the High Court are set aside. [709-D-G] Gurbux singh v. Bhooralal, [1964] 7 SCR 831, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14610 of 1996. =1997 AIR 1398, 1996( 8 )Suppl.SCR 695, 1997( 1 )SCC 99, 1996( 8 )SCALE369 , 1996(10 )JT 96
PETITIONER: M/S BENGAL WATERPROOF LIMITED Vs. RESPONDENT: M/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER DATE OF JUDGMENT: 18/11/1996 BENCH: A.S. ANAND, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: J U D G M E N T S.B. Majmudar. J. Leave granted. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally … Continue reading
Indian Succession Act, 1925 – Will – Execution of – Testator bequeathing property in absolute terms in favour of her daughters – Latter part of bequest purporting to vest the same property in their female offspring – Interpretation of – Held: It is clear from the Will that testatrix had made an unequivocal and absolute bequest in favour of her daughters – By the latter part all such property as remained available in the hands of the legatees at the time of demise, were to devolve upon their female offspring – Latter part is redundant since it was repugnant to the clear intention of testatrix in making an absolute bequest in favour of her daughters – Stipulation made in the second part did not in the least affect the legatees being the absolute owners of the property bequeathed to them – Upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by testatrix – Will. The original owner bequeathed certain properties in favour of her daughters `SA’ and `SR’. It was stipulated that after death of `SA’ and `SR’ the properties would devolve upon their female offsprings. `SA’ died intestate. The appellants, sons of `SA’, took possession of the property bequeathed in favour of `SA’. The respondents-daughter of `SA’ and others filed a suit for declaration of title over the suit property and for recovery of possession in view of the stipulation contained in the Will. The trial court dismissed the suit. The High Court set aside the order passed by the trial court and decreed the suit. Therefore, the appellants filed the instant appeal. =Allowing the appeal, the Court HELD:1.1 It is evident from a careful reading of Sections 84, 85, 86 and 87 of the Indian Succession Act, 1925 that while interpreting a Will, the courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. The courts would also interpret a Will to give effect to the intention of the testator as far as the same is possible. Each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that meaning of any clause in a Will must be collected from the entire instrument and all parts should be construed with reference to each other. [Para 16] [821-F-H; 822-A] 1.2 It is evident from a careful reading of clause 6 of the Will that the same makes an unequivocal and absolute bequest in favour of daughters of testatrix. The use of words like “absolute rights of sale, gift, mortgage etc.” employed by the testatrix make the intention of the testatrix abundantly clear. The testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only. There is no dispute that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. The submission that the absolute estate of the `SA’ ought to be treated only as a life estate though attractive on first blush, does not stand closer scrutiny. It is said so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the instant case, the testatrix. The intention of the testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression “after demise of my daughters the retained and remaining properties shall devolve on their females children only” does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted does not detract from the absolute nature of the bequest in favour of the daughters. [Paras 6 and 17] [815-A-B; 822-C-D] 1.3 All that the testatrix intended to achieve by the latter part of clause 6 was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. [Para 17] [823-A-F] 1.4 The judgment and order passed by the High Court is set aside and that passed by the trial court restored. [Para 18] [823-G] Sasiman Chowdhurain and Ors. vs. Shib Narain Chowdhury and Ors. AIR 1922 PC 63; (Kunwar) Rameshwar Bakhsh Singh and Ors. v. (Thakurain) Balraj Kuar and Ors. AIR 1935 PC 187; Radha Sundar Dutta v. Mohd. Jahadur Rahim and Ors. 1959 SCR 1309; Ramkishore Lal v. Kamal Narain (1963) Supp 2 SCR 417; Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors. (2002) 2 SCC 468; Pearey Lal v. Rameshwar Das (1963) Supp 2 SCR 834; Ramachandra Shenoy and Anr. v. Mrs. Hilda Brite and Ors. 1964 (2) SCR 722; Kaivelikkal Ambunhi (Dead) By Lrs. and Ors. v. H. Ganesh Bhandary (1995) 5 SCC 444 – referred to. Case Law Reference: AIR 1922 PC 63 Referred to. Para 4 AIR 1935 PC 187 Referred to. Para 8 1959 SCR 1309 Referred to. Para 9 (1963) Supp 2 SCR 417 Referred to. Para 10 (2002) 2 SCC 468 Referred to. Para 11 (1963) Supp 2 SCR 834 Referred to. Para 12 1964 (2) SCR 722 Referred to. Para 13 (1995) 5 SCC 444 Referred to. Para 14 CIVIL APPELLATE JURISDICITION : Civil Appeal No. 2758 of 2004. From the Judgment & Order dated 4.3.200 of the High Court of Andhra Pradesh at Hyderabad in Appeal No. 1530 of 1998. Y. Raja Gopala Rao for the Appellants. I. Venkatanarayana, A. Chandramohan, T. Anamika for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.2758 OF 2004 Sadaram Suryanarayana & Anr. …Appellants Versus Kalla Surya Kantham & Anr. …Respondents JUDGMENT T.S. THAKUR, J. 1. This appeal by special leave is directed against an order dated 4th March, 2003 passed by the High Court of Andhra Pradesh whereby … Continue reading
Penal Code, 1860 – s.302 – Death of appellant’s wife due to cyanide poisoning – Allegation that appellant had mixed up cyanide in a cold drink bottle of Limca and given it to his wife to drink – Trial Court held that the prosecution had failed to prove the guilt of the appellant beyond all reasonable doubts and, therefore, acquitted him of the charge under s.302 – Appeal by State Government – High Court reversed the judgment of acquittal and, convicted the appellant under s.302 and sentenced him to rigorous imprisonment for life – Justification of – Whether on the basis of the materials on record, the view taken by the trial Court, was so wrong and unreasonable as to warrant interference and reversal by the High Court – Held: There was hardly anything in the prosecution evidence to establish the charge against the appellant – The facts and circumstances of the case may give rise to a strong suspicion against the appellant but suspicion, howsoever strong, cannot take place of proof – Testimony of PW6 (on the issue of appellant mixing up cyanide in the cold drink bottle of Limca and giving it to the deceased to drink) was not reliable – Prosecution case on recovery of the Limca bottle from the residence of appellant was also highly suspect – There was no proof of the appellant’s guilt and on the basis of the evidence on record it would be quite unsafe to hold him guilty of murder and to send him to imprisonment for life – Trial court had taken the perfectly correct view in the matter – High Court arrived at a completely erroneous conclusion regarding the appellant’s guilt – Judgment passed by the trial court accordingly restored. The wife of the appellant died of cyanide poisoning. It was alleged by the prosecution that the appellant had mixed up cyanide in a cold drink bottle of Limca and given it to his wife to drink. Apart from the doctor (PW14) and the forensic expert (PW17), 16 more witnesses were examined to prove the culpability of the appellant. Out of them PWs 1 and 2 were the father and the brother respectively of the deceased. The trial Court on a consideration of all the evidence produced before it found that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubts. It, therefore, acquitted him of the charge under section 302 IPC. Against the judgment of the trial Court, the State Government preferred appeal. The High Court allowed the government appeal, reversed the judgment of acquittal passed by the trial court and, accordingly, convicted the appellant under section 302 IPC and sentenced him to rigorous imprisonment for life. In the instant appeal, the question which arose for consideration was whether on the basis of the materials on record, the view taken by the trial Court, was so wrong and unreasonable as to warrant interference and reversal by the High Court. =Allowing the appeal, the Court HELD:1. PW7 was the landlady in whose house the appellant and the deceased lived on rent, and PW3 was her maid. These two witnesses stated before the Court how they had found the appellant’s wife lying unconscious in a chair and had shifted her to Hospital for treatment. PW3 further stated that at that time the accused was not present in the house but he came to the hospital an hour after the deceased was admitted there. In her cross- examination by the defence, she stated that the deceased was suffering from some kind of disease, and at that stage she was declared hostile by the prosecution. PW7 similarly stated that on receiving a telephone call she went to the portion of the house occupied by the deceased and found her there lying unconscious in a chair. She, then, called her maid PW3 and with her help, shifted her to hospital. She did not know what had happened to the deceased. In her cross examination she stated that the accused and the deceased were living amicably prior to the date of the incident. [Para 27] [624-G-H; 625-A-C] 2. PW4 was the goldsmith, from whom the appellant is supposed to have obtained the cyanide as per his confessional statement. In his deposition before the Court, PW4 stated that he was threatened and cajoled by the police to say that the appellant had obtained cyanide form him on the pretext of cleaning the computer parts. He stated before the court that he and his brother were brought to the Police Station where they were kept for 10 days and were threatened that they would be implicated in the case, unless they made statements as directed by the police. In the end, finding no way out, he yielded and made the statement before the police and the Magistrate as he was asked to do. He was declared hostile and was cross- examined by the prosecution, in course of which he bluntly denied that his statement under section 161 of Cr. P. C. was given voluntarily and not under coercion. The deposition of PW4 is a major blow to the prosecution case as regards the source of cyanide to the appellant and his access to the poison. [Para 28] [625-D-G] 3.1. On the issue of the appellant mixing up cyanide in the cold drink bottle of Limca and giving it to the deceased to drink, the prosecution relied upon the evidence of PW6, the owner of a general store, and the recovery of the empty Limca bottle from one of the rooms in the occupation of the appellant and the deceased. PW6 deposed before the court that more than a year ago, at about 2.30 or 3 p.m., the accused went to his store and purchased a Limca bottle. Apart from the price of the cold drink, he was asked to deposit Rs.5 for the bottle. He paid Rs.15 and took away the bottle of Limca, but he didn’t return the empty bottle. He did not know where and in which house the accused resided. In cross-examination, he stated that his store was a big shop and a number of customers came there. He remembered some customers and the articles purchased by them but didn’t remember most of the customers or the articles purchased by them on a particular day. He also said that most of the time he went out for the purchase of supply for the shop and at those times his brother sat in the shop. He also said that he was a social worker and a reputed person in the locality. And he went to the police station whenever some disputes arose in the locality and tried to settle them amicably by compromise. [Para 29] [625-H; 626-A-D] 3.2. In appreciating the evidence of PW6, two or three things need to be kept in mind. First, though it is not impossible for a busy shop keeper to recall a person who is not a regular customer of the shop but comes there by chance for purchasing a bottle of cold drink, it is certainly a little unusual. Secondly, PW6 claimed himself to be a social worker and a reputed person in the locality. He was quite familiar with the police and used to visit the police station for settlement of the disputes arising in the locality. Thirdly, and most importantly, the appellant was presented before him after allegedly making the confessional statement before the police and the punch witnesses. The whole story was, thus, out in the open and the police had brought the culprit before him `for a simple confirmation’ that he would indeed do in order to oblige the police without any difficulty. For the aforesaid reasons, this Court is very reluctant in accepting the testimony of PW6. [Para 30] [626-E-H] 4. As regards the recovery of the empty Limca bottle from one of the rooms at the appellant’s residence that was found by the forensic laboratory to contain cyanide, the appellant’s residence was thoroughly searched soon after the death of Laxmi Kumari. The `Scene of Offence Panchnama’ is in considerable detail and it describes the appellant’s residence and the articles found there. On the `sajja’ of the appellant’s bedroom, suit cases and some miscellaneous articles were found and on shelves there were portraits of goddesses, weekly magazines, other books and some clothes. It is rather strange, that in course of such a detailed examination, the Sub- Inspector should have missed out the empty Limca bottle that is shown to be recovered three days later from the same shelf. The seizure memo does not state that the bottle was taken out by the appellant from some hidden place from where normally it could not be recovered without his assistance. The seizure memo was prepared in presence of panchas. Only one of them was examined by the prosecution as PW12. He denied that any recovery was made in his presence. On the contrary he stated that police obtained his signatures on some papers of which some were written and some were blank. He denied that in his presence the appellant had led the police to his house and had produced the Limca bottle, that the police had seized it under the seizure memo, and that he and another panch attested the panchnama. Thirdly, it is in the seizure report under the column details of seizure what is stated is `One empty Limca Bottle-300ml.’ Thus, at the time of seizure there was no white powder visible inside the bottle as is mentioned in the report of the Forensic Science Laboratory. Also, the bottle reached the Forensic Science Laboratory much later and there is absolutely no evidence as to where and with whom the bottle remained during this period. All these circumstances make the prosecution case on recovery of the Limca bottle from the residence of the appellant highly suspect. [Para 31] [627-A-H; 628-A] 5.1. There appears to be hardly anything in the prosecution evidence to establish the charge against the appellant. The facts and circumstances of the case may give rise to a strong suspicion against the appellant but suspicion, howsoever strong, can not take place of proof. There is no proof of the appellant’s guilt and on the basis of the evidence on record it would be quite unsafe to hold him guilty of murder and to send him to imprisonment for life. [Para 32] [628-B-C] 5.2. The trial court had taken the perfectly correct view in the matter. The High Court was unable to keep aside the so called confessional statement made by the appellant. On the contrary, it put the confessional statement at the centre and proceeded to examine all other evidences in its back drop and, thus, reached to a completely erroneous conclusion regarding the appellant’s guilt. The confessional statement was completely repudiated by the appellant before the trial court. Further, the statement was supposedly made in presence of `panchas,’ and it was shown to have been signed by them as witnesses along with the investigating officer (PW18). Of the two panchas, only one was examined as PW12, but he did not support the prosecution case either in regard to the appellant’s confessional statement or the Seizure Report of the Limca bottle and was declared hostile. It was only PW18, the investigating officer, who stated before the trial court that the accused voluntarily made the confessional statement and voluntarily produced the empty Limca bottle from the `sajja’ at his residence. The confessional statement, disowned by the appellant and not supported even by the witness, is of no use for judging the appellant’s guilt and must be kept out of consideration. The impugned judgment of the High Court is, accordingly, set aside and the judgment passed by the trial court is restored. [Paras 25, 33] [623-H; 624-A-D; 628-D-E] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1449 of 2007. From the Judgment & Order dated 13.9.2007 of the High Court of Judicature Andhra Pradesh at Hyderabad in Criminal Appeal No. 1009 of 2005. Sushil Kumar, S. Udaya Kumar Sagar, Vinita Sasidharan, Aditya Kumar (for Lawyer’s Knit & Co.) for the Appellant. D. Mahesh Babu, Ramesh Allan, D. Bharathi Reddy for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1449 OF 2007 M. Nageshwar Rao ….Appellant Versus State of Andhra Pradesh ….Respondent JUDGMENT AFTAB ALAM, J. 1. This appeal by grant of special leave is directed against the judgment and order dated September 13, 2007 passed by the High Court of … Continue reading
Indian Partnership Act, 1932: ss.42 and 4 – Deemed dissolution of firm – Two partners – Death of one partner – LRs of deceased partner not interested in continuing the firm or in constituting a fresh firm – Effect of – Held: Since there were only two partners constituting the partnership firm, on death of one of them, there was deemed dissolution of the firm, despite existence of a clause in the partnership deed which said otherwise – A partnership is a contract between partners – There cannot be any contract unilaterally without acceptance by the other partner – LRs of the deceased partner could not be asked to continue the partnership, as there was no legal obligation upon them to do so, as partnership is not a matter of heritable status but purely one of contract, which is also clear from definition of partnership under s.4. ss.14 and 48 – Property of firm – Partnership firm, constituted for construction of a cinema theatre, consisted of two partners – While the first partner offered her land for construction of cinema theatre, the second partner constructed cinema theatre and other allied constructions by procuring funds – Deemed dissolution of the firm in view of death of the first partner – Distribution of residual property amongst the partners – Held: On facts, there was no intention from either partner to treat the land, building, structures etc. as properties of the firm – As the partnership got dissolved on death of a partner, it would be reasonable to allow both the parties to take their respective properties – First partner entitled to exclusive possession of the land while second partner entitled to take away the movables and recover the value of buildings and structure embedded to the land. Appeal – Second appeal – New plea – Question of law, based on pleadings and evidence on record, not raised before lower courts – Held: Such question of law can be permitted for the first time before the High Court. Constitution of India, 1950 – Article 136 – Powers under – Not to be exercised, until grave injustice is shown to be caused to the aggrieved party by way of the impugned order. The partnership firm in question, constituted for construction of a cinema theatre, consisted of two partners. One of the partners filed suit for dissolution of the partnership firm alleging that the other partner mismanaged the business of the firm, manipulated the account books and stopped payment of the minimum guarantee profit, as envisaged under the partnership deed, to the plaintiff-partner. In terms of the partnership deed, the plaintiff-partner offered her land for construction of the cinema theatre, while the defendant-partner constructed the cinema theatre and other allied constructions by procuring necessary funds. During pendency of the suit, the plaintiff-partner died and her legal representatives, i.e. the appellants, were brought on record. The trial court held that there was deemed dissolution of the partnership firm due to death of the plaintiff-partner, and since the appellants were not agreeable to enter into partnership with the defendant-partner, they were entitled for rendition of accounts and to be handed over the entire cinema theatre with allied structures as per the deed of partnership. Meanwhile the defendant-partner also died, and his legal representatives, i.e. the respondents were brought on record before the First Appellate Court, which confirmed the decree passed by the trial court. The respondents filed appeal before the High Court, which also held that the partnership firm stood dissolved on account of death of one of the partners, but permitted the respondents to take away the movables from the cinema theatre and recover the value of the building and structures embedded to the land. On a combined reading of the terms of the partnership deed, the High Court held that the land and the cinema were not the properties of the firm but were properties of the respective parties, and thus the appellants were entitled to exclusive possession of the land and the respondents were entitled to take away the projectors and other machineries, the furnitures and all other items, which can be safely removed from their place and that the appellants should pay the respondents the value of the remaining portions of the structures which could not be removed without any damage, after proper valuation of the same. In appeal to this Court, the questions which arose for consideration were: 1) whether the High Court erred in permitting the respondents in raising a question for the first time in second appeal, which was not in the pleadings before the Trial Court or the First Appellate Court; 2) whether the High Court erred in holding that there had been dissolution of the partnership firm on account of death of a partner and 3) whether the High Court also erred in permitting the Respondents to remove the movables from the cinema theatre. =Dismissing the appeals, the Court HELD: 1. The contention that the High Court erred in permitting the respondents to raise a new plea for the first time in the second appeal has no substance. The new plea which was allegedly raised before the High Court for the first time was that all assets of the firm including the land and building is to be dealt with under Section 48 of the Partnership Act, 1932 and the proceeds is to be disbursed to the two partners in accordance with the respective shares as per the partnership deed. The High Court had dismissed this plea. The Respondents did not appeal against the said finding of the High Court. That apart, when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be permitted for the first time before the High Court. Therefore, one fails to see how the Appellants are aggrieved by this finding of the High Court even assuming the High Court had formulated a new question of law, which was not raised before the Courts below. There is thus no scope for exercise of powers by this Court under Article 136 of the Constitution. [Paras 17 and 19] [889-g-h; 890-a-c; 891-a-b] Santakumari & Ors. v. Lakshmi Amma Janaki Amma (D) By Lrs. & Ors. (2000) 7 SCC 60, relied on. Hardayal Gir v. Sohna Ram 1970 (3) SCC 635 and Chandra Singh v. State of Rajasthan (2003) 6 SCC 545, referred to. 2.1. Dissolution of a partnership firm on account of death of one of the partners is subject to the contract entered into by the parties. Though Clause 22 of the Partnership deed herein reads that “the partnership deed shall be in force for a period of 42 years certain from this date and the death of any partner shall not have the effect of dissolving the firm”, this clause clearly states that death of any partner shall not have the effect of dissolving the firm. However, in the facts and circumstances of the case, absolute effect to this clause cannot be given. [Paras 22 and 23] [892-a-d] 2.2. When there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise. A partnership is a contract between the partners. There cannot be any contract unilaterally without the acceptance by the other partner. The appellants, the legal representatives of the deceased partner were not at all interested in continuing the firm or constitute a fresh firm and they cannot be asked to continue the partnership, as there is no legal obligation upon them to do so as partnership is not a matter of heritable status but purely one of contract, which is also clear from the definition of partnership under Section 4 of the Partnership Act, 1932. Therefore, the trial court was justified in holding that the firm dissolved by virtue of death of one of the partners and the first appellate court as well as the High Court have taken the correct view in upholding the same. [Para 26] [893-d-f] Smt. S. Parvathammal v. CIT 1987 Income Tax Reports 161, approved. 3. As to the issue related to removing the movables from the Cinema and allowing the Respondents to recover the value of the building and structures embedded to the land, from the appellants, it is true that there was no intention from either of the parties to treat these properties as the properties of the firm. A careful perusal of Clause 24 of the Partnership Deed clearly indicates that the land as well as the building with the fixtures etc., to be vested with the plaintiff-partner (since deceased), after the expiry of term of 42 years. It is also true that directing the delivery of the entire property to the appellants would cause prejudice to the rights of the Respondents and would put him to loss. As the partnership got dissolved on the death of the plaintiff-partner, it would be reasonable to allow both the parties to take their respective properties. The appellants are entitled to the exclusive possession of the land and the respondents are entitled to take away the movables from the property and recover the value of the buildings and structure embedded to the land. It has to be assessed by the technically qualified person. The appellants are liable to pay the value of the remaining structures after adjusting the amount if any due to the appellants. [Paras 27 and 41] [893- g; 897-h; 898-a-d] Arjun Kanoji Tankar v. Santaram Kanoji Tankar (1969) 3 SCC 555; Arm Group Enterprises Ltd. v. Waldorf Restaurant (2003) 6 SCC 432; Commissioner of Income Tax, Madhya Pradesh v. Dewas Cine Corporation (1968) 2 SCR 173; Narayanappa v. Krishtappa (1966) 3 SCR 400; Malabar Fisheries Co. Calicut v. CIT (1979) 4 SCC 766 and S.V. Chandra Pandian v. S.V. Sivalinga Nadar (1993) 1 SCC 589, referred to. Mills v. Clarke 1953 (1) AER 779, referred to. Halsbury’s Law of England, 4th Edition, referred to. Case Law Reference: AIR 1978 AP 257 referred to Para 4 1970 (3) SCC 635 referred to Para 18 (2003) 6 SCC 545 referred to Para 19 (2000) 7 SCC 60 relied on Para 19 1987 ITR 161 approved Para 25 (1969) 3 SCC 555 referred to Para 31 (2003) 6 SCC 432 referred to Para 32 1953 (1) AER 779 referred to Para 34 (1968) 2 SCR 173 referred to Para 36 (1966) 3 SCR 400 referred to Para 38 (1979) 4 SCC 766 referred to Para 39 (1993) 1 SCC 589 referred to Para 39 CIVIL APPELLATE JURISDICTION : Civil Appeal No.6933-6934 of 2002. From the Judgment & Order dated 9.4.2002 of the High Court of Judicature, Andhra Pradesh at Hyderabad in A.S. Nos. 1048 & 1050 of 2001. WITH C.A. Nos. 4411-4412 of 2002. Dr. K. Parasaran, Rakesh Dwivedi, R.F. Nariman, A.D.N. Rao, A. Subba Rao, Roy Abraham, Kishore Rai, Seema Jain, Anant Prakash, Shantanu Krishna, Mukti Choudhary, Preetika Dwivedi, Rahul Dua, Himinder Lal for the appearing parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6933-6934 OF 2002 Mohd. Laiquiddin & Anr. ..Appellants Versus Kamala Devi Misra (Dead) By L.Rs & Ors. ..Respondents WITH CIVIL APPEAL NOS. 4411-4412 of 2002 Smt. Kamala Devi Misra (Dead) By L.Rs & Ors .Appellants Versus Mohd. Laiquiddin Khan & Anr. ..Respondents … Continue reading
the Supreme Court in K. Veeraswami v. Union of India7, it cannot be said that judicial pronouncements made by Judges and Judicial Officers can be subjects for prosecuting those Judges or Judicial Officers in discharge of their judicial functions, particularly in any private complaint filed by the aggrieved party whether such aggrieved party is a party to those proceedings in which judicial pronouncements were rendered. 20. Section 77 IPC reads as follows: "77. Act of Judge when acting judicially.- Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law." Under this provision, no judicial act performed by a Judge can be an offence. For applicability of Section 77, the following ingredients are necessary: a) that the act was done by a Judge b) that the said act was done by the Judge when acting judicially and c) that it was done in exercise of any power which is given to the Judge by law (or) the said act was done by the Judge in good faith believing that the power was given to him by law.
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1472 of 2010 17-09-2010 Tummala Lakshmana Rao Sri Sadhu Narayana and 7 others. Counsel for the Petitioners: Sri Thummala Lakshmana Rao (in person) Counsel for the respondents: Nil :ORDER: 1. The petitioner seeks to file this revision petition questioning order dated 16.04.2010 passed by the Chief … Continue reading
advocatemmmohan 