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Section 498-A of the IPC could be made compoundable, – a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. – We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. – No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the 10Page 11 wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) xxx xxx xxx (viii) xxx xxx xxx (ix) xxx xxx xxx (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. 11Page 12 (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. – directions, which the courts dealing with the matrimonial matters shall follow: (a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the 36Page 37 Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit. (b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to 37Page 38 grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage. 37. The appeal is disposed of in the aforestated terms.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1794 OF 2013 (Arising out of Special Leave Petition (Civil) No. 4782 of 2007) K. SRINIVAS RAO … APPELLANT Versus D.A. DEEPA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. This appeal, by special leave, has been … Continue reading

motor accident claims =the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO   M.A.C.M.A. No. 2681 of 2011   JUDGMENT: The appeal is filed against the judgment dated 23.04.2004 in M.O.P.No.1274 of 2001 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhapatnam questioning the liability of the insurance company.   A claim for compensation was made for … Continue reading

Foreign Exchange Regulation Act, 1973 – ss. 50, 51 and 56 – Scope and applicability of – Charges against the appellant for contravening the provisions of s.9(1)(f)(i) and s.8(2) r/w s.64(2) – Enforcement Directorate (ED) sought to prosecute appellant in a proceeding u/s.56 though on the self-same facts and cause of action, respondent-adjudicating authority had dropped charges framed against the appellant u/s.50 – Plea of appellant that standard of proof required to bring home the charge in a criminal case is much higher than the adjudication proceeding and once the appellant was exonerated in the adjudication proceeding, his prosecution was an abuse of the process of Court – Held (per majority): The yardstick would be to judge as to whether allegation in the adjudication proceedings and the proceedings for prosecution was identical and exoneration of the person concerned in the adjudication proceeding was on merits – In case it is found on merit that there was no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court – In the instant case, in the adjudication proceeding on merit the adjudicating authority had categorically held that the charges against the appellant for contravening the provisions of s.9(1)(f)(i) and s.8(2) r/w s.64(2) were not sustainable – In the face of the finding by the Enforcement Directorate in adjudication proceeding that there was no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution – Resultantly the appellant’s prosecution is quashed – Held (per minority): The scheme of the Act makes it clear that adjudication by the concerned authorities and prosecution are distinct and separate – The two proceedings are independent and irrespective of the outcome of the decision u/s.50, there cannot be any bar in initiating prosecution u/s.56 – In the light of the mandate of s.56, it is the duty of the Criminal Court to discharge the functions vested with it and give effect to the legislative intention, particularly, in the context of the scope and object of FERA which was enacted for economic development of the country and augmentation of revenue. The Enforcement Directorate alleged that the appellant had contravened the provisions of Section 8(2) and 9(1)(f)(i) of the Foreign Exchange Regulation Act, 1973 and accordingly rendered himself liable to imposition of penalty under Section 50 of the Act. Accordingly, adjudication proceeding as contemplated under Section 51 of the Act were instituted against him for the aforesaid contraventions. The adjudication officer (the Special Director) came to the conclusion that the allegation made against the appellant of contravention of the provisions of Section 8, 9(1)(f)(i) and Section 8(2) read with Section 64(2) of the Act were not sustainable. The Enforcement Directorate did not challenge this order and it attained finality. The Enforcement Directorate on the same allegation which was the subject matter of adjudication proceeding laid complaint against the appellant for prosecution under Section 56 of the Act before the Metropolitan Magistrate. After the issuance of process and exoneration in the adjudication proceeding, the appellant filed application for dropping the proceedings, inter alia, contending that on the same allegation the adjudication proceedings having been dropped and the appellant exonerated, his continued prosecution is an abuse of the process of the Court. The Metropolitan Magistrate rejected his prayer. Aggrieved, the appellant preferred criminal revision application which was dismissed by the High Court by the impugned order. In the instant appeal, dispute arose as to whether the Enforcement Directorate (ED) could prosecute the appellant in a proceeding under Section 56 of the FERA when on the self-same facts and cause of action, the respondent-adjudicating authority had dropped the charges framed against the appellant under Section 50 of the FERA. It was contended on behalf of the appellant that standard of proof required to bring home the charge in a criminal case is much higher than the adjudication proceeding and once the appellant was exonerated in the adjudication proceeding, his prosecution was an abuse of the process of Court. =Allowing the appeal (per majority), Per Chandramauli Kr. Prasad, J. (for Harjit Singh Bedi, J. and himself): HELD: 1. Section 50 of the Foreign Exchange Regulation Act, 1973 (FERA) provides for mandatory penalty and fixes the outer limit of such penalty on any person contravening the provisions of the Act which is to be adjudged by the Director of Enforcement or any other officer of the Enforcement not below the rank of an Assistant Director empowered by the Central Government. The procedure and the power to adjudicate penalty has been provided under Section 51 of the Act. From a plain reading of Section 51 of the Act it is evident that for adjudging the penalty under Section 51 of the Act for contravention of the provisions of the Act or any rule, direction or order made thereunder the adjudicating officer is to be satisfied that the person has committed the contravention after holding an inquiry in the prescribed manner and after giving the person concerned a reasonable opportunity of making representation. Thus besides the procedural requirement the sine qua non for imposition of penalty under Section 51 of the Act is that the adjudicating officer has to record its satisfaction that the person concerned has committed the contravention of any of the provisions of the Act or of any rule, direction or order made thereunder. [Paras 8, 9] [903-E-H; 904-A-G] 2. As would be evident from the preamble of the FERA, it was enacted for the conservation of foreign exchange resources of the Country and the proper utilization thereof in the economic development of the Country. The proceedings under Section 51 and 56 of the Act are independent of each other and the finding in an adjudication proceeding under Section 51 of the Act is not binding in the proceeding for prosecution under Section 56 of the Act and both can go hand in hand. Further, the prosecution can be launched even before conclusion of adjudication proceeding under Section 51 of the Act. [Paras 10, 11] [904-H; 905-H; 906-A-C] 3. The standard of proof in a criminal case is much higher than that of the adjudication proceeding. The Enforcement Directorate has not been able to prove its case in the adjudication proceeding and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, the determination of facts in the adjudication proceeding cannot be said to be irrelevant in the criminal case. However, the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceeding cannot necessarily be held guilty in criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case entire burden to prove beyond all reasonable doubt lies on the prosecution. [Paras 15, 16] [909-H; 910-A-B; 911-F-G] 4. The yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court. [Para 19] [916-A-B] 5. In the instant case, in the adjudication proceeding on merit the adjudicating authority has categorically held that “the charges against Shri Radheshyam Kejriwal for contravening the provisions of Section 9(1)(f) (i) and Section 8(2) read with Section 64(2) of the Foreign Exchange Regulation Act, 1973 cannot be sustained”. In the face of the aforesaid finding by the Enforcement Directorate in adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution. [Para 23] [919-F-H; 910-A] 6. In the result the impugned judgment of the Metropolitan Magistrate and the order affirming the same by the High Court are set aside and appellant’s prosecution is quashed. [Para 24] [920-B] Standard Chartered Bank and others vs. Directorate of Enforcement and others (2006) 4 SCC 278; Assistant Collector of Customs, Bombay and another vs. L.R. Melwani and another AIR 1970 SC 962 and Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 – distinguished. Uttam Chand and others vs. Income Tax Officer, Central Circle, Amritsar (1982) 2 SCC 543; G.L. Didwania and Another vs. Income Tax Officer and Another 1995 Supp (2) SCC 724 and K.C. Builders and Another vs. Assistant Commissioner of Income Tax (2004) 2 SCC 731 – relied on. Hemendra M. Kothari v. Shri W.S. Vaigankar, Asstt. Director, Enforcement Directorate (FERA), Govt. of India and State of Maharashtra [decided by Bombay High Court on 25-04-2007] and Sunil Gulati & Anr. V. R.K. Vohra 145 (2007) DLT 612 – approved. B.N. Kashyap vs. Emperor AIR (32) 1945 Lahore 23 Full Bench; K.G. Premshanker v. Inspector of Police (2002) 8 SCC 87 – referred to. Case Law Reference: (2006) 4 SCC 278 distinguished Para 11, 20 AIR 1970 SC 962 distinguished Para 12, 13 AIR (32) 1945 Lahore 23 referred to Para 15 (2002) 8 SCC 87 referred to Para 15 (2005) 4 SCC 370 distinguished Para 16 (1982) 2 SCC 543 relied on Para 17 1995 Supp (2) SCC 724 relied on Para 17 (2004) 2 SCC 731 relied on Para 17 145 (2007) DLT 612 approved Para 22 Per Sathasivam, J. (dissenting): HELD: 1. The Foreign Exchange Regulation Act, 1973 (FERA) being a statute relating to economic offences, there is no reason to restrict the scope of any provisions of the Act. These provisions ensure that no economic loss is caused by the alleged contravention by the imposition of an appropriate penalty after adjudication under Section 51 of the Act and to ensure that the tendency to violate is guarded by imposing appropriate punishment after due transaction in terms of Section 56 of the Act. In fact, Section 23D of the Foreign Exchange Regulation Act, 1947 had a proviso, which indicates that the adjudication for the imposition of penalty should precede making of complaint in writing to the court concerned for prosecuting the offender. The absence of a similar proviso to Section 51 or to Section 56 of the 1973 Act is a clear indication that the Legislature intended to treat the two proceedings as independent of each other. There is nothing in the present Act to indicate that a finding in adjudication is binding on the Court in a prosecution under Section 56 of the Act or that the prosecution under Section 56 depends upon the result of adjudication under Section 51 of the Act. The two proceedings are independent and irrespective of the outcome of the decision under Section 50, there cannot be any bar in initiating prosecution under Section 56. The scheme of the Act makes it clear that the adjudication by the concerned authorities and the prosecution are distinct and separate. No doubt, the conclusion of the adjudication, in the case on hand, the decision of the Special Director, may be a point for the appellant and it is for him to put forth the same before the Magistrate. Inasmuch as FERA contains certain provisions and features which cannot be equated with the provisions of Income Tax Act or the Customs Act and in the light of the mandate of Section 56 of the FERA, it is the duty of the Criminal Court to discharge its functions vest with it and give effect to the legislative intention, particularly, in the context of the scope and object of FERA which was enacted for the economic development of the country and augmentation of revenue. Though the Act has since been repealed and not available at present, those provisions cannot be lightly interpreted taking note of the object of the Act. [Para 23] [942-D-H; 943-A-D] 2. In view of the above, the conclusion arrived at by the Metropolitan Magistrate, Calcutta as well as the decision of the High Court are upheld. [Para 24] [943-E] G.L. Didwania and Another v. Income Tax officer and Another 1995 Supp (2) SCC 724; K.C. Builders and Another v. Assistant Commissioner of Income-Tax (2004) 2 SCC 731; P.S. Rajya vs. State of Bihar (1996) 9 SCC 1; Uttam Chand and Others v. Income Tax Officer, Central Circle, Amritsar (1982) 2 SCC 543 – distinguished. Standard Chartered Bank and Others vs. Directorate of Enforcement and Others (2006) 4 SCC 278; K.G. Premshanker vs. Inspector of Police and Another (2002) 8 SCC 87; Assistant Collector of Customs vs. L.R. Malwani, 1969 (2) SCR 438; Iqbal Singh Marwah and Another vs. Meenakshi Marwah and Another (2005) 4 SCC 370 – relied on. Asstt. Commr. vs. Velliappa Textiles Ltd. (2003) 11 SCC 405; ANZ Grindlays Bank Ltd. vs. Directorate of Enforcement (2004) 6 SCC 531; Standard Chartered Bank vs. Directorate of Enforcement (2005) 4 SCC 530 – referred to. B.N. Kashyap vs. Emperor AIR (32) 1945 Lahore 23 Full Bench – referred to. Case Law Reference: 1995 Supp (2) SCC 724 distinguished Para 9, 10, 11, 16, 19, 22 (2004) 2 SCC 731 distinguished Para 9 , 11 (1996) 9 SCC 1 distinguished Para 9 , 12 (1982) 2 SCC 543 distinguished Para 9 , 13 (2006) 4 SCC 278 relied on Para 15, 22 (2002) 8 SCC 87 relied on Para 15, 17 1969 (2) SCR 438 relied on Para 15, 18, 19, 22 (2005) 4 SCC 370 relied on Para 15, 20 AIR (32) 1945 Lahore 23 Full Bench referred to Para 15, 21 (2003) 11 SCC 405 referred to Para 16 (2004) 6 SCC 531 referred to Para 16 (2005) 4 SCC 530 referred to Para 16 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1097 of 2003. From the Judgment & Order dated 10.08.2001 of the High Court of Calcutta in C.R.R. No. 3593 of 1997. A. Sharan, Punet Jain, Sushil Kr. Jain, Pramod Sharma, Anil K. Verma, Pratibha Jain for the Appellant. P.P. Malhotra, ASG, P.K. Dey, Ranjana Narayan, B. Krishna Prasad. Tara Chandra Sharma, Neelam Sharma for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1097 OF 2003 RADHESHYAM KEJRIWAL ….. APPELLANT VERSUS STATE OF WEST BENGAL & ANR. ….. RESPONDENTS J U D G M E N T CHANDRAMAULI KR. PRASAD, J. 1. We have gone through the draft judgment prepared by our noble and learned Brother … Continue reading

Motor Vehicles Act, 1988 : s. 166 – Claim petitions by passengers of bus and its driver – Injured in a collision between a bus and a truck – Tribunal holding that bus driver, and not the truck driver, was driving the vehicle in a rash and negligent manner – Claim petitions of passengers allowed and that of driver rejected – High Court rejecting claim petition of bus driver observing that he having not questioned finding of tribunal in passengers’ petitions regarding his negligence and the findings having become final, he was bound thereby – Held: Claimant-bus driver was fully aware of his legal liability – He was also prosecuted in criminal court in that regard – He deposed in claim petitions filed by injured passengers – He was aware that his plea of not being negligent was negatived – He, therefore, was party to the proceedings initiated by passengers and could have preferred an appeal thereagainst – Tribunal and High Court rightly rejected his claim – `Party’ – `Necessary party’ – ` Aggrived person’ – Connotation of – Practice and Procedure – Words & Phrases. In a motor accident stated to have occurred on a collision between a bus belonging to the State Road Transport Corporation and a truck, several passengers traveling in the bus and its driver (the appellant) were injured. The passengers as also the appellant filed a claim petition before the Motor Accident Claims Tribunal. The appellant was also prosecuted in a criminal case for rash and negligent driving. However, that case ended in acquittal. Before the Tribunal the Corporation denied and disputed the case of the passengers that the appellant was driving the bus in a rash and negligent manner. The appellant also examined himself in the claim petitions filed by the passengers and supported the case of the Corporation. The Tribunal heard both the sets of cases together and allowed the claim petitions of the passengers holding that the appellant was driving the bus rashly and negligently. The Corporation did not challenge the awards given in favour of the passengers and the same attained finality. Rejecting the claim petition of the appellant the Tribunal held that it was the appellant, and not the truck driver, who was driving the vehicle rashly and negligently. In the appeal filed by the appellant the High Court affirming the order of the Tribunal held that as the appellant did not question correctness of the award of the Tribunal in the passengers’ cases, although a party aggrieved, he was bound thereby as regards the finding of negligence. In the instant appeal filed by the bus driver, it was contended for the appellant, inter alia, that the awards passed by the Tribunal in the cases of the passengers were not binding on the appellant; and that the High Court erred in holding that although the appellant was not a party in the proceedings, he was an aggrieved person. =Dismissing the appeal, the Court HELD: 1.1 Section 168 of the Motor Vehicles Act,1988 mandates the Tribunal to specify the amount which shall be paid by the owner or the driver of the vehicle involved in the accident or by both or any of them. As it is imperative on the part of the Tribunal to specify the amount payable, inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceedings. In appropriate cases, liability of the driver may be primary. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tort feaser. [para 18 and 33 ] [98-B, C] Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt AIR 1966 SC 1697; and Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another (2003) 8 SCC 731 – relied on. Patel Roadways and Another Vs. Manish Chhotalal Thakkar and Others ILR 2000 Kar. 3286; Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another AIR 1977 SC 1248; and New India Assurance Co. Vs Munni Devi 1993 ACJ 1066 (M.P.) and Madhya Pradesh State Road Transport Corporation Vs. Vaijanti 1995 ACJ 560 (M.P.) – referred to. 1.2 In the instant case, the appellant was fully aware of his legal liability. He was involved in the criminal case. He deposed in the claim applications filed by the injured persons who were travelling in the bus. He was fully aware that unless he proves his innocence in regard to the charge of rash and negligent driving, he would be held liable therefor, particularly, when he himself had filed the claim petition. It might have been a matter of sharing of liability between him and the driver of the truck. He was aware that his plea of not being negligent has been negatived. He, for all intent and purport, therefore, was a party to the earlier proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal thereagainst. He did not choose to do so. It was in that sense, the High Court cannot be said to have committed any error in holding tha the appellant was also an aggrieved person. [para 22 and 25] [100-D, E, F; 104-B] 2.1 In the instant case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. Unless the finding of negligence in the claim cases of the passengers was negatived, in the claim cases filed by the driver himself, the said finding of negligence on the part of the driver could not have been varied. [para 23] [101-E, F] 2.2 In the first set of claims cases, the driver of the bus was held to be negligent and, therefore, a ruling that the driver is a necessary party would mean that the bus driver must necessarily be involved in these proceedings. However, the driver of the bus had sufficient opportunity to make a representation against the allegation of negligence as he was examined as RW1 in the claim cases filed by the passengers, even though he was not formally impleaded as a respondent. Hence, the High Court has correctly held that he was a `party’ to the proceedings. [para 23] [101-G, H] 2.3 In the claims filed by the driver of the bus, namely the appellant, specific allegations were made against the driver of the truck. Hence, the driver of the truck was not a necessary party. Here, one must bifurcate the terms `party’ and `necessary party’. `Party’ has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party as defined is one who must be joined in an action because, inter alia, complete relief cannot be given to those already parties their joinder. [para 23] [102-B-E] Black’s Law Dictionary, 5th Edition – referred to. 3.1 The principles of natural justice demand that a person must be given an opportunity to defend his action. Appellant not only made averments as regards absence of negligence on his part; he made specific allegations against the driver of the truck. The driver of the truck alone would have been competent to depose. In a given case, like the present one, the owner of the truck may not defend the action at all keeping in view the fact that the vehicle was an insured one. [para 19-20] [98-D, E, F] Halsbury’s Laws of England, 3rd Edn., Vol. 32 – referredto. 3.2 First and foremost, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness. More importantly, however, one must look at the kind of evidence which must be led in such cases. To make a finding on negligence without involving the driver, as, at least, a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate. On this basis, a driver should be made a `party’ to the proceedings. It was done in the instant case. Without contrary evidence led by the appellant or the Corporation, the finding of negligence on the part of the appellant cannot be interfered with. Without a deposition on the part of the truck driver and without his involvement at least as a witness, an adverse finding on negligence cannot be made against him. In any event, the truck driver was examined as RW1. Therefore, in the circumstances, the driver of the bus was examined in the first set of claims cases in the same manner as the driver of the truck was examined in the second set of cases (which has been filed by the Appellant). [para 23 and 24] [102-E, F; 103-D-H; 104-A] 4. Both the Tribunal and the High Court have rightly arrived at a finding of fact that it was the appellant alone who was rash and negligent in driving of the vehicle. No case had been made out to differ with the said finding of fact. [para 25] [104-B, C] Kiran Suri for the Appellant. R.S. Hegde, Chandra Prakash, Rahul Tyagi, J.K. Nayyar, P.P. Singh, D. Varadarajan and Shiv Prakash Pandey for the Respondents.=2008 AIR 2545, 2008(7 )SCR83 , , 2008(7 )SCALE496 ,

CASE NO.: Appeal (civil) 3041 of 2008 PETITIONER: Machindranath Kernath Kasar RESPONDENT: D.S. Mylarappa & Ors. DATE OF JUDGMENT: 29/04/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G M E N T REPORTABLE CIVIL APPEAL NO. 3041 OF 2008 [Arising out of SLP (Civil) No. 17711 of 2006] S.B. SINHA, J : … Continue reading

Kerala General Sales Tax Act, 1963 – Entry 104 – Satilon/Tuflon coated cookware – Held: Classifiable under Entry 104 and not under Entry 5 – Such products cannot be treated as ordinary aluminium household utensils – Satilon/Tuflon coating makes the products non sticky and hence different from aluminium household utensil falling under Entry 5 – The amendment to Entry 104 in 1999 by which the word `non-stick’ cookware was added was merely clarificatory in nature. The questions which arose for consideration in these appeals were whether the satilon coated cookware and articles coated with tuflon are classifiable under Entry 5 of First Schedule under Kerela General Sales Tax Act, 1963 as `an aluminium household utensil made of utensil’ or whether these products would fall under Entry 104 which pertains to `pressure cooker, cook and serve ware to keep food warm, casseroles, water filters and similar home appliances not coming under any other entry’. The Assessing Authority classified the product under Entry 5. The Appellate Authority held that as the satilon coating made the goods non-stick, it would make it different from the aluminium household utensils made of aluminium covered under Entry 5 of the First Schedule. The Tribunal upheld the same. High Court held that the products were classifiable under the heading “similar home appliances” under Entry 104 of the Act and that the amendment to Entry 104 in the year 1999 by which the word “non-stick cookware” was added was only clarificatory in nature. Hence these appeals. =Dismissing the appeals, the Court HELD: 1.1. The view taken by the Tribunal as well as the High Court that “satilon coated aluminium products” are not identical with “aluminium household utensils made of aluminium and aluminium alloys” is correct. The coating of satilon makes all the difference to the product. The Tribunal rightly recorded a finding that in trade parlance, no one would describe satilon coated aluminium products as aluminium household utensils. [Para 5] [80-F] 1.2. The satilon coated cookware cannot be treated as ordinary aluminium household utensils. Price of the satilon coated cookware is much more than the aluminium household utensils made of aluminium and its alloys. The Hawkins cookware sold by the assessee cannot be categorized as household utensils made of aluminium for the reasons that the satilon coating makes the goods non-sticky and hence different from the aluminium household utensils. In common parlance, Hawkins cookware with satilon coating is not understood as aluminium ware. The view taken by the High Court that the amendment to Entry 104 of the First Schedule is clarificatory in nature is also correct. [Para 6] [80-H; 81-A-B] Gujarat Steel Tubes Ltd and Ors. v. State of Kerala and Ors. (1989) 3 SCC 127; Metlex (I) (P) Ltd. v. Commissioner of Central Excise, New Delhi (2005) 1 SCC 271; Commissioner of Central Excise, Cochin v. Apollo Tyres Ltd. (2005) 11 SCC 444 – distinguished. 2. Coating of tuflon also makes the article non-stick. [Para10] [81-G] T.L.V. Iyer, Gopal Jain, Kaushik Mishra, Bindu K. Nair, Sarika Singh, Ruby Singh Ahuja, K.R. Sasiprabhu, Krishan Venugopal, K. Varghese, Sidhartha, Naresh Kumar, G. Prakash, Beena Prakash, Varun Sarin (for Ramesh Babu M.R.) for the appearing parties.=, 2008(7 )SCR77 , , 2008(6 )SCALE657 , 2008(6 )JT237

CASE NO.: Appeal (civil) 6469-6470 of 2002 PETITIONER: Hawkins Cookers Limited RESPONDENT: State of Kerala DATE OF JUDGMENT: 29/04/2008 BENCH: ASHOK BHAN & DALVEER BHANDARI JUDGMENT: J U D G M E N T REPORTABLE CIVIL APPEAL NOS. 6469-6470 OF 2002 With Civil Appeal No. 7169 of 2004 Talent Marketing Agencies …..Appellant(s) – Versus – … Continue reading

or.21, rule 102 of c.p.c ?= the power of the General Power of Attorney agent =“The mortgages executed by the agent were valid and binding on the appellant. The consideration that it was very unreasonable to expect that the appellant should inform the whole world that she had cancelled the power of attorney given to the person, was not relevant in the face of the clear words of the Section 208 of the Contract Act. The policy of the law, apparently in the interests of trade and commerce, is that the agent’s action should bind the principal, even though the principal might have cancelled the agent’s authority unless the third person with whom the agent enters into contracts knew of the termination of the agency.”

HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE K.S. APPA RAO   C.C.C.A.Nos.111 and 113 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice K.S. Appa Rao)         These appeals are filed against the orders, dated  25-03-2011 passed in E.A.Nos.59 of 2010 and 62 of 2010 respectively in E.P.No.39 of 2008 in O.S.No.108 of 2007 on the … Continue reading

supreme court of U.K.=On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crown’s reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on incriminating statements made by the appellant while being interviewed by the police in such circumstances was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63.=Generally speaking the court will shut its face against the admission in evidence of any coerced Page 17 statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (‘a pragmatic compromise’ as . . . [Lord Bingham describes it]) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value.” 33. If, then, as I believe, the position is that the facts discovered as a result even of a coerced confession are (subject always to the court’s discretionary power under section 78(1) to exclude evidence) admissible in evidence – although not, of course, evidence that it was the accused’s statement that led to the discovery of the fact, ie the situation in Chalmers v HM Advocate [1954] JC 66 itself (see section 76(5) and (6) of PACE) – the position cannot be different (and certainly the prosecution cannot be under greater inhibition) with regard to facts discovered (as here) as a result of a police interview notwithstanding the wrongful failure to provide the accused with legal assistance. 34. If there would be a discretion in the court to admit evidence of, say, a bomb found with the accused’s fingerprints all over it discovered by the police as a result of a confession extracted from him by torture, it surely must be in the court’s discretion to admit oral evidence from the friend in the particular circumstances of the present appeal.

Michaelmas Term [2011] UKSC 44 JUDGMENT REFERENCE – Her Majesty’s Advocate v P (Scotland) before Lord Hope, Deputy President Lord Brown Lord Kerr Lord Dyson Lord Matthew Clarke JUDGMENT GIVEN ON 6 October 2011 Heard on 28, 29 and 30 June 2011 Appellant Respondent Frank Muholland QC, Lord Advocate Matthew Auchincloss Joanna Cherry QC Catherine … Continue reading

HINDU SUCCESSION ACT, 1956: ss. 6 and 8 – Coparcenery property in the hands of sole coparcener – On his death, shares claimed by his daughters, children of deceased daughter and the son born out of the second marriage – Held: The son would inherit the properties not as coparcener – Therefore, s. 8 would apply and not s.6 – Hindu Marriage Act, 1955 – ss.5 and 16 – Evidence Act, 1872 – s.50 Evidence Act, 1872 – s. 50 – Opinion of relationship – Factum of marriage – Held: Evidence of relatives was admissible not only from the point of view that they were the persons who could depose about the conduct of parties but they were also witnesses to various documents executed by the wife. The predecessor-in-interest of the parties, namely, `K’, a coparcener along with his brother, on a partition which took place in 1941, was allotted the suit property. He married twice. From the first wife, namely, `P’, he had three daughters, and from the second wife, namely, `Y’, whom he was stated to have married in 1960, he had a son by name `D’. `K’ died in the year 1969. In the year 1998 one of his daughters from the first wife also died. Two partition suits were filed – one by the children of K’s deceased daughter, the appellants, claiming 1/3rd share and denying the second marriage of `K’, and the other suit was filed by the two surviving daughters from the first wife and the son `D’ from second wife. The trial court held that mother of `D’ was validly and legally married to `K’ and on that premise held that `K’ and `D’ formed a coparcenery and the appellants being the heirs and legal representatives of the daughter of `K’ inherited 1/10th share in the properties left by him. The High Court upheld the judgment. In the instant appeals it was contended for the appellants that `Y’ not being validly married to `K’, her son `D’ did not inherit any share in the property; and that since `D’ was born after coming into force of the Hindu Succession Act, 1956, he was not a coparcener and, therefore, s.8 of the Act would apply and not s.6. =Allowing the appeals, the Court HELD: 1.1. Evidence in different forms may be adduced before the court; information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in such a situation, those who had the occasion to see the conduct of the parties may testify with regard to the information they have, from probably the conduct of the persons concerned. Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act. [Para 10 and 11] [47-D-G] Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on. 1.2. In the instant case, the evidences of two daughters of `K’ were admissible evidence not only from the point of view that they were the persons who could depose about the conduct of `K’ and `Y’, but they were also witnesses to various documents executed by `Y’. The High Court has itself noticed the applicability of s.50 of the Evidence Act. In that view of the matter, the finding that `K’ married `Y’ need not be interfered with. [Para 11 and 12] [47-G-H; 48-A, D] 2.1. It is now well-settled that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. [Para 16] [50-B] Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567; Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75; Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355, relied on Eramma vs. Veerupana & Ors. AIR 1966 SC 1879, referred to 2.2. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between `K’ and `Y’ took place in 1960 and, as such, the said marriage was clearly hit by s. 5 of the Hindu Marriage Act. `D’, therefore, would inherit the properties not as a coparcener. [Para 13] [48-E-G] 2.3. `D’ was admittedly born after the coming into force of the Hindu Succession Act. However, the Hindu Marriage Act, carved out an exception to the matter of inheritance of children of such marriages by creating a legal fiction u/s 16 of the Hindu Marriage Act. Therefore, as on the date of death of `K’ all his daughters as also `D’ will take in equal shares being the relatives specified in Class I of the Schedule appended to the Hindu Succession Act. Therefore, the trial court as also the High Court were not correct in opining that `D’ would be a coparcener and the appellants would inherit only 1/10th share in the said properties . The share of the appellants would be 1/3rd. [Para 13-15 and 19] [49-G-H; 53-D; 48-G] Case Law Reference: AIR 1978 SC 1557 relied on para 9 (2008) 1 SCALE 434 relied on para 9 (1986) 3 SCC 567 relied on para 16 2006 (10) SCALE 75 relied on para 17 2008 (2) SCALE 355 relied on para 17 AIR 1966 SC 1879 referred to para 18 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4818-4819 of 2009. From the Judgment & Order dated 16.11.2007 of the High Court of Karnataka at Bangalore in RFA No. 1403 of 2003 C/w 1404 of 2003. G.V. Chandrashekhar, N.K. Verma, Anjana Chandrashekar for the Appellants. S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N. Raghupathy for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4818-4819 OF 2009 ARISING OUT OF S.L.P. (C) NO. 5964-5965 OF 2008 M. YOGENDRA & ORS. ….. APPELLANTS VERSUS LEELAMMA N. & ORS. ….. RESPONDENTS JUDGMENT SINHA J. Leave granted. Interpretation of the application of the provisions of Section 6 of the … Continue reading

Hindu Law: Joint family properties – Partition of through family settlement – Sisters relinquishing their rights in properties in favour of their brothers – Consent decree based on family settlement – HELD: A partition by meets and bounds may not always be possible – A family settlement is entered into for a larger purpose of achieving peace and harmony in the family – It is not a case where settlement was contrary to any statutory provision or was opposed to public policy – Court shall apply the statute to uphold a compromise unless it is otherwise vitiated in law – Contract Act, 1872 – s.23. Deeds and Documents: Deed of `release’ – Relinquishment of right in property by sisters in favour of their brothers – HELD: Release by an heir other than coparcener does not need any consideration – s. 25 of Contract Act must be read and construed having regard to the fact situation obtaining in the case – Renunciation in Indian context may be or may not be for consideration – Contract Act, 1872 – s.2 (d) and 25 – Transfer of Property Act, 1882 – ss. 122 and 123. Contract Act, 1872: ss. 17 and 19 – `Fraud’ – Voidability of agreement – Suit by sisters against their brothers and other sisters alleging fraud in obtaining consent decree in an earlier partition suit – HELD: When a fraud is alleged, particulars thereof are required to be pleaded – In the instant suit, no particulars of alleged fraud or misrepresentation have been disclosed – Besides, documents on record show that partition consequent upon consent decree had been acted upon – Papers were signed either in office of advocate or before Sub-Registrar – Both the courts below recorded a finding that the sisters had jointly taken a stand that they would not claim any share in properties – No case of fraud or misrepresentation has been made out – Code of Civil Procedure, 1908 – Or. 6, r.4. Limitation Act, 1963: Schedule – Articles 59, 65 and 110 – Suit alleging fraud in obtaining deed of partition – Limitation – HELD: Applicability of Article 59 would depend upon the question as to whether deed of partition was required to be set aside or not – In the instant case, it was required to be set aside – In view of Article 59, suit was barred by limitation. The plaintiffs-appellants, two sisters, filed Suit No. 1760 of 1990 against their brothers defendants-respondents Nos.1 and 2 and other sisters for partition of the suit properties on the ground that the same were self acquired properties of their father, `KS’. It was also stated that the two brothers defendants-respondents no.1 and 2 acted fraudulently in getting the Power of Attorneys from them and obtaining a consent decree in earlier partition suit No. 2459 of 1982. The stand of the defendants-respondents nos. 1 and 2 was that their father `KS’ alongwith other family members came to acquire the properties through a partition of joint family properties effected in the year 1957. `KS’ had two wives namely `S’ and `V’ and in Partition Suit No. 2459 of 1982 the properties were further divided half and half between the two branches of `KS’ by a consent decree passed in terms of a compromise. Pursuant to the said compromise decree, a further deed of partition was executed on 5.8. 1983 (Ext. D-6) amongst the children of `KS’ from `S’ in terms whereof 1/3 share in the property shown as Item No.3 was allotted to their mother `S’ and rest of the properties were retained by the two brothers, defendants-respondents nos.1 and 2, in whose favour the sisters relinquished their right in the property out of love and affection. `S’ died on 10.9.1983. Defendants-respondents no. 1 and 2 pleaded that the suit without prayer for cancellation of partition deed was not maintainable and was also barred by limitation. The trial court dismissed the suit. However, it held that the two plaintiffs and defendants 1 to 8 were entitled to 1/33 share each in Item No.2 of the suit properties. In the appeal the plaintiffs filed an application under Or.6 r.17 read with s. 151 of the Code of Civil Procedure, 1908 seeking amendment to the plaint stating that some more properties belonging to their father were also available for partition and the same were required to be added as Items nos. 5 and 6 to the Schedule of the properties. The High Court dismissed the appeal. In the instant appeal filed by the two plaintiffs it was contended for the appellants that the averments made in Suit No. 2459 of 1982 being fraught with the elements of fraud and mis-representation, no reliance could have been placed thereupon nor the plaintiffs-appellants could be said to have voluntarily made admissions in the said pleading; that the deed of partition and the deed of relinquishment being void ab initio and hit by Section 25 of the Indian Contract Act as for the said purpose passing of adequate consideration was necessary, love and affection being not the requisite consideration therefor and, as such, it was not necessary to pray setting aside of the deeds of partition and relinquishment; that the partition of the properties being unfair and unequal, reopening of the partition was permissible, wherefor also it was not necessary to seek cancellation of the documents; that in the facts and circumstances of the case, Article 65 or Article 110 of the Schedule to the Limitation Act would be attracted and not Article 59 thereof. =Dismissing the appeal, the Court HELD: 1.1 The source of title in respect of properties in suit is not in question, as the same have all along been treated as joint family properties by both the branches of `KS’ through his two wives `S’ and `V’. This is evident from the records of O.S. No. 2459 of 1982. The fact that in the said suit, the properties of `KS’ were described as the joint family coparcenary properties is not in dispute. Even otherwise, in view of the well-settled principle of law that when a son gets a property from his father, as soon as sons are born to him, a joint family is constituted. It is not a case that sons from either side of the family were born before the Hindu Succession Act 1956 came into force. [para 23 and 26] [323-A,F,G. 326-A,B] Mst. Rukhmabai v. Lala Laxminarayan and Others 1960 (2) SCR 253 – relied on. 1.2 The earliest deed of partition dated 22nd July, 1957 was a registered document. A perusal of the averments made in the plaint categorically goes to show that the partition referred to therein related to the partition effected in 1957. The admissions made by the appellants in their pleadings in Suit No. 1760 of 1990 themselves are sufficient to hold that the property was a joint family property and by reason of the said deed of settlement culminating in passing of the compromise decree dated 20.12.1982, a valid consent decree was passed. [para 25] [325-D,F,G] 1.3 It may be true that although the properties were described as coparcenary properties and both the branches were granted equal share, but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some `give and take’ was necessary for the purpose of arriving at a settlement. A partition by meets and bounds may not always be possible. A family settlement is entered into for achieving a larger purpose, viz., achieving peace and harmony in the family. [para 24] [324-E,F] Hari Shankar Singhania and Others v. Gaur Hari Singhania and Others (2006) 4 SCC 658; Govt. of A.P. and Others v. M. Krishnaveni and Others (2006) 7 SCC 365 and Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726 – relied on. 1.4 When there arises a question as to whether the suit was to be regarded as having adjusted by way of mutual agreement so that it can be disposed of on the said terms, in the event of a dispute, the consideration is different. However, where a settlement had been arrived at and a decree was passed on the premise that the said compromise was lawful, the same cannot be permitted to be reopened only on the question as to whether the properties were joint properties or self-acquired properties of the common ancestor. A consent decree was passed in Suit No. 2459 of 1982 pursuant to a settlement arrived at between the two branches. The properties were divided half and half through a deed of partition (Ext. D-6). Indisputably, the said consent decree has been acted upon and ten sale deeds and some lease deeds have been executed and, therefore, question of reopening entire Suit No. 2459 of 1982 by setting aside the decree passed therein would not arise. [Para 23 and 39] [323-G, 324-A,B, 336-B,C,D] 2.1 In the instant case, the basis for the entire suit being commission of fraud in obtaining the consent decree in suit No. 2459 of 1982, it was obligatory on the part of the plaintiffs in Suit No. 1760 of 1990 to pray for setting aside the said decree. The pleadings of the appellants in the suit in which they were parties are binding on them in the subsequent proceedings proprio vigore. Unless fraud was proved, they could not have got rid of the same. When a fraud is alleged, as provided in Order 6, r.4, Code of Civil Procedure, 1908, the particulars thereof are required to be pleaded. In suit No. 1760 of 1990 no particulars of the alleged fraud or misrepresentation have been disclosed. The plea of fraud raised therein is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representations, who made the representations and what type of representations were made, have not been stated. [para 23, 35-36] [324-C,D, 331-D,E,F,G] A.C. Ananthaswamy v. Boraiah (2004) 8 SCC 588 – relied on. 2.2 If a fraud or misrepresentation is to be attributed, the same must be attributed to the entire family representing both the branches and not to respondent No.1 alone. They must have thought that by reason of such averments a settlement can be brought about. The averments made in the suit filed by one branch were accepted by the other branch without any demur whatsoever. [para 25] [325-G, 326-A] 2.3 Before the deed of partition was entered into, on 15th July, 1983 a special power of attorney was executed by plaintiff no.2 in favour of respondent No.1. A clear recital was made therein that she had agreed to relinquish her interest and the power of attorney was being executed pursuant thereto. Power of attorney need not necessarily be preceded by a regular deed. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways. A power of attorney need not disclose the purpose for which the relinquishment is made or the consideration thereof. [para 28-29] [326-D,E,F,G,H] 2.4 Section 19 of the Contract Act 1872 provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. [para 33] [330-A,B] Prem Singh v. Birbal and Others (2006) 5 SCC 353 – relied on. 2.5 In the plaint of Suit No. 1760 of 1990, execution or validity of the documents including the registered power of attorneys and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed between 1983 and 1985 are not in question. There are a large number of documents brought on record by the parties wherefrom a positive knowledge of execution of the partition deed (Ext. D-6) on the part of the sisters is possible to be attributed. These documents in categorical terms go to show that the partition effected in 1983 had been acted upon. Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar. It was, therefore, done at a public place. No signature was obtained on the blank paper. Plaintiff-appellant No. 1 in her deposition before the trial court admitted that each of the sisters had been given one rupee and their signatures were obtained on the partition deed dated 5th August, 1983. She was fluent in English and signed the documents in English. Both the courts below have come to the conclusion that the sisters jointly had taken a stand that they would not claim any share in the property. One of the sisters, who wanted a share in the property, had been paid a sum of Rs. 40,000/- and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition was executed with the knowledge that they had been signing the deed of partition and no other document. The plaintiff-appellants never stated that any fraud or misrepresentation had been practiced in regard to the character of the documents. No case of fraud or mis-representation has been made out. It was, therefore, difficult to arrive at a conclusion that the plaintiffs-appellants were not aware of the nature of the document or that any fraud had been practiced on them. These findings have a direct bearing on the question as to whether the deed of partition as also the power of attorneys were vitiated by reason of any fraud or misrepresentation on the part of respondents Nos. 1 and 2. It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. [para 29-32, 37 and 54] [327-D-F, 329-E,F 332-A-D, 343-F] Prem Singh v. Birbal and Others (2006) 5 SCC 353 – relied on. 3. It is not a case where the settlement was contrary to any statutory provision or was opposed to public policy as envisaged under Section 23 of the Contract Act. The court shall apply the statute for upholding a compromise unless it is otherwise vitiated in law. It is not required to go into the question as to whether the contents of the said settlement are correct or not. Only in a case where fraud on the party or fraud on the court has been alleged or established, the court shall treat the same to be a nullity. [para 40] [336-D,E,F] Chief Engineer, M.S.E.B. and Another v. Suresh Raghunath Bhokare (2005) 10 SCC 465; Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others (2006) 5 SCC 638; Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) Through LRs. and Others (2005) 11 SCC 314 – relied on. Sundar Sahu Gountia and others v. Chamra Sahu Gountia and others AIR 1954 Orissa 80 – held inapplicable. Ganpatbhai Mahaijibhai Solanki v. State of Gujarat and Ors. 2008 (3) SCALE 556 – referred to. 4.1 A deed of `release’ for a consideration is a transaction. When, a release is made for consideration, the particulars of consideration and other particulars are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the cases. Renunciation in Indian context may be for consideration or may not be for consideration. [para 43 and 45] [337-D,E,F, 338-E] Smt. Manali Singhal and another v. Ravi Singhal and others AIR 1999 Delhi 156; Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another (1967) 1 SCR 275; Chief Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel AIR 1968 Madras 159; The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai AIR 1977 Madras 10- referred to. De’ Souza’s Conveyancing, page 1075 – referred to. 4.2 Section 25 of the Contract Act contains several exceptions, that is to say : (i) if it is in writing; (ii) if it is registered or (iii) if the same has been executed on account of natural love and affection. The deed of partition is both in writing and registered. The fact that the parties are near relatives is not in dispute. The love and affection of the sisters on the brothers has categorically been accepted by plaintiff No. 1 in her deposition. [para 47] [340-C,D,E] 4.3 Assuming that the consideration of rupee one shown in the deed of partition is no consideration in the eye of law. However, a partition deed is per se not a void document. No such plea was raised. No issue has been framed. No evidence has been adduced. No ground has been taken even in the memo of appeal before the High Court. Validity of the partition deed (Ex. D-6) by reference to the recitals of the release of shares by other daughters has not been questioned. The parties knew the nature of the document. Appellants and other sisters being highly educated were supposed to know the contents thereof. Their husbands are well-off in the society. The transaction, therefore, was transparent. Furthermore, the mother was alive. She was also a party to the deed of partition. She must have played a pivotal role. She might be anxious to see that family properties are settled. Release by an heir other than a co-parcenar does not need any consideration. A release is valid even without consideration. [para 44 and 48] [338-B,C,D, 340-F,G, 341-A] 4.4 The High Court, therefore was correct in not allowing the appellants to raise the plea of consideration. As defined in s.2(d) of the Contract Act, 1872, consideration, even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promisee or by the transferor to the transferee. Love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act. [para 51 and 53] [342-C,D, 343-D] Mt. Latif Jahan Begam v. Md. Nabi Khan AIR 1932 Allahabad 174; Gauri Shanker v. M/s. Hindustan Trust (Pvt.) Ltd. and Others (1973) 2 SCC 127; M/s. John Tinson and Co. Pvt. Ltd. and others v. Mrs. Surjeet Malhan and another AIR 1997 SC 1411 – referred to. Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278 – Distinguished. 5. Applicability of Article 65 or Article 110 of the Limitation Act, 1963 on the one hand, and Article 59 thereof, on the other, would depend upon the factual situation involved in a case. A decree for setting aside a document may be sought for in terms of Section 31 of the Specific Relief Act, 1963. Applicability of Article 59 would indisputably depend upon the question as to whether the deed of partition was required to be set aside or not. In the instant case, it was required to be set aside. It is not a case where the deed of partition by reason of purported wrong factual contention raised in the plaint leading to grant of a consent decree was void ab initio. It was not. The effect of it would be that the same was required be set aside. In view of Article 59 of the Limitation Act, the suit was barred by limitation. [para 57] [344-G, 345-B,C,D,E] Prem Singh v. Birbal and Others (2006) 5 SCC 353; M/s. Bay Berry Apartments Pvt. Ltd. & Anr. v. Shobha & Ors. 2006 (10) SCALE 596; and Utha Moidu Haji v. Kuningarath Kunhabdulla and Ors. 2006 (14) SCALE 156 – referred to. G.V. Chandrasekhar, N.K. Verma and Anjana Chandrashekar for the Appellants. S.S. Javali, T.N. Rao, S. Balaji, Madhusmita, V.H. Ron and Gurudatta Ankolekar for the Respondents.=, 2008(9 )SCR297 , , 2008(9 )SCALE144 , 2008(8 )JT510

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. _3635_ OF 2008 (Arising out of SLP (C) No. 4055 of 2006) Ranganayakamma and another …. Appellants Versus K.S. Prakash (D) by L.Rs. and others …. Respondents JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. This appeal is directed against the … Continue reading

Code of Civil Procedure (Act 5 of 1908), O.41, r. 1- Preliminary decree in partition suit-Death of some parties- Redistribution of shares-No fresh preliminary decree drawn up-Appeal without copy of preliminary decree-If maintainable. Practice-If court could pass more than one preliminary decree in a partition suit. Hindu law-Agarwala Jains–Share given to mother in partition suit-Right, whether absolute or limited. Will-Circumstances showing genuineness of. =The appellant filed a suit for partition against his father, mother, brother (the -respondent) and the adopted son of a predeceased brother. The parties were Agarwala Jains. A preliminary decree was passed specifying the shares of the parties, but before the final decree could be passed, the father died., and soon after, the mother also died. The respondent claimed the father’s share under a will executed by the father in his favour, and the appellant claimed the mother’s share under a sale deed executed by her in his favour. The appellant challenged the genuineness of the will, and the respondent contended that as she was only a limited owner, the mother was not entitled to sell her share. The trial Court held in favour of the appellant on both contentions, and passed an order redistributing the shares, but did not prepare a fresh preliminary decree. The respondent appealed to the High Court but was not in a position to file a copy of the decree with the appeal. Even when time was granted by the High Court and the respondent moved the trial Court for framing a formal decree, the trial Court refused to do so. The High Court disposed of the appeal holding that (i) the appeal was maintainable without a copy of the decree; (ii) the varying of the share,, by the trial Court, in the preliminary decree already passed by it was a decree in the circumstances of the present case, and the respondent could appeal from it; (iii) the mother was not entitled to sell her share and so the sale in favour of the appellant was invalid; and (iv) the will in favour of the respondent was genuine. In appeal to this Court. HELD:(i) Normally a copy of the decree must accompany the memorandum of appeal. But the defect in the filing of the appeal in the present case was not due to any fault of the respondent and it could not be held that be should be deprived of his right of appeal, simply because the trial Court did not do its duty. [157 D, H] Jagat Dhish Bhargava v. Jawahar Lal Bhargava, [1961] 2 S.C.R. 918, referred to. (ii) So far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial court can and should pass a second Sup. C.1.167-11 154 preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the court deciding that dispute and making a variation in the shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the court has jurisdiction to decide all disputes that may arise due to the death of some of the Parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit if circumstances justify it and if it is convenient and advantageous to do so. [158 E, F, H; 159 A, D-E] Kasi v. Ramanathan Chettiar, [1947] 2 M.L.J. 523, Raja Peary Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram v. Hirabai, A.I.R. 1957 Bom. 59, approved. Bharat Indu v. Yakub Hasan, (1913) I.L.R. 35 All. 159, Kedernath v. Pattu Lal, I.L.R. [1954] Luck, 557 and Joti Parshad v. Ganeshi Lal, A.I.R. 1961 Punj. 120, overruled. (iii)In the absence of a custom to the contrary a Jain widow takes a limited interest in her husband’s estate similar to the widow’s estate.A custom., however, to the contrary has been proved Agarwala Jains that the widow takes an absolute estate in the required property of her husband, with full powers of alienation. But there is no such custom entitling her to an absolute estate in ancestral property. [160 D-E] In the present case, the share allotted to the mother by the preliminary decree was out of ancestral property, and therefore, the appellant could not take advantage of the sale of that share by the mother, and it must descend equally to the three surviving parties namely, the appellant, the -respondent and the adopted son of the deceased brother. [160 E-F] Tulsiram Khirchand v. Chunnilal Panchamsao Parwar, A.I.R. 1938 Nag. 391, referred to. (iv) The will was duly executed by the father in favour of the respondent. It was genuine, and the testator was competent to will away not only his self-acquired properties, but also the share he got out of the joint family property by severance of status and specification of shares. [162 C-F] The will was executed after the partition suit had been filed and after a preliminary decree, by which shares were allotted to the members of the family, had been passed. Though the testator was 70 years old at the time of the execution of the will -and though the respondent took a prominent part in its execution, the testator lived for 7 years after its execution and he was mentally and physically competent at the time of its execution. Further, the will was registered. The will was also natural, because,, (a) the testator was disgusted with the conduct of the appellant; (b) he was pleased with that of the respondent; (c) he did not give any share to the adopted son of his deceased son, because, the adopted son was the natural son of the appellant; and (d) he did not provide for his wife for she had already been allotted one-fifth share by the trial Court’s preliminary decree. [161 C-H; 162 A] =1967 AIR 1470, 1967( 3 )SCR 153, , ,

PETITIONER: PHOOLCHAND AND ANR. Vs. RESPONDENT: GOPAL LAL DATE OF JUDGMENT: 10/03/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. RAMASWAMI, V. CITATION: 1967 AIR 1470 1967 SCR (3) 153 CITATOR INFO : RF 1972 SC 414 (32) ACT: Code of Civil Procedure (Act 5 of 1908), O.41, r. 1- Preliminary decree in partition suit-Death … Continue reading

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