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Stamp Act, 1899 – ss. 33 and 35 and Article 23 of Schedule 1A (as substituted by M.P. Act No. 19 of 1989) — Execution of sale deed – Execution whereof statutorily barred – Suit by the vendee for recovery of consideration amount – Reliance on the conveyance deed which was not registered – Document impounded, being not duly stamped – Held: Provision of ss. 33 and 35 are applicable, even if the unregistered document sought to be admitted in evidence is for collateral purpose – The purpose for which reliance is placed on the document is not relevant for applicability of the provisions – s. 35 rules out applicability of s. 49 of Registration Act – On facts, the document rightly impounded – Registration Act, 1908 – s. 49. Respondent-a member of Scheduled Tribe sold his immovable property to appellant. Appellant paid the consideration amount for the same, and respondent gave the possession of the property to the appellant. However, the permission for such transfer was not granted. Appellant filed a suit for recovery of the consideration amount. He relied on the agreement which was sought to be registered as a sale deed. As the document was not duly stamped, the court impounded the same. The challenge against the order was not entertained by High Court. In appeal to this Court, appellant contended that since the unregistered sale deed was sought to be put in evidence only for the purpose of recovery of the consideration amount i.e. for collateral purpose, the provisions of ss. 33 and 35 of Stamp Act, shall not be attracted. . =Dismissing the appeal, the Court HELD:1.1. The Parliament has, in Section 35 of Stamp Act, used the words “for any purpose whatsoever”. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provision. The land, in the instant case, is situated in a Scheduled Area. Execution of a deed of conveyance in respect of the land situated in the scheduled area is statutorily barred. All transactions can be effected only upon obtaining the permission of the Collector in terms of the provisions of Section 165 (6) of the C.G. Land Revenue Code, 1959. An instrument was executed. By reason of such an instrument not only the entire amount of consideration was paid but possession of the property had also been transferred. [Paras 12, 13 and 14] [953-C-F] 1.2. By reason of the explanation appended to Article 23 of Schedule IA of the Stamp Act as inserted by M.P. Act 19 of 1989 a legal fiction has been created. Although ordinarily an agreement to sell would not be subject to payment of stamp duty which is payable on a sale deed, but having regard to the purpose and object it seeks to achieve the legislature thought it necessary to levy stamp duty on an instrument whereby possession has been transferred. [Para 15] [954-C-D] 1.3. The possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. Although the agreement was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908. In the instant case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [Paras 16 and 19] [954-E-F] Pandey Oraon v. Ram Chander Sahu 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. 2004 (10) SCC 65, referred to. 1.4. Section 33 of Stamp Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of Stamp Act. [Paras 17 and 18] [954-F-H] 1.5. It is not correct to say that the document was admissible for collateral purpose. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof. Section 35 of Stamp Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purposes. [Paras 19, 20 and 21] [955-A-G-D-E] Ram Rattan v. Parmananad AIR 1946 PC 51, relied on. Bondar Singh v. Nihal Singh 2003 (4) SCC 161, distinguished. Bhaskarabhotla Padmanabhaiah and Ors. v. B. Lakshminarayana and Ors. AIR 1962 A.P. 132; Sanjeeva Reddi v. Johanputra Reddi AIR 1972 A.P. 373; T. Bhaskar Rao v. T. Gabriel and Ors. AIR 1981 A.P. 175; Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chanda and Ors. AIR 1965 All. 164 and Chandra Sekhar Misra v. Gobinda Chandra Das AIR 1966 Ori. 18, referred to. Case Law Reference: 2003 (4) SCC 161 Distinguished. Para 19 1992 Supp (2) SCC 77 Referred to. Para 19 2004 (10) SCC 65 Referred to. Para 19 AIR 1946 PC 51 Relied on. Para 22 AIR 1962 A.P. 132 Referred to. Para 22 AIR 1972 A.P. 373 Referred to. Para 22 AIR 1981 A.P. 175 Referred to. Para 22 AIR 1965 All. 164 Referred to. Para 22 AIR 1966 Ors. 18 Referred to. Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7350 of 2008. From the Judgment and final Order dated 27.02.2007 of the High Court of Chattisgarh in at Bilaspur in W.P. No. 251/2007. A.K. Bajpai, M.F. Khan, Goodwill Indeevar for the Appellant. Suhail Dutt, Ram Gupta, Jagit Singh Chhavra and Ravin Rao for the Respondent =, , , 2009(1 )SCALE80 ,

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7350 OF 2008 (Arising out of SLP (C) No. 8651 of 2007) Avinash Kumar Chauhan …. Appellant Versus Vijay Krishna Mishra …. Respondent JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Interpretation of Sections 33 and 35 of the Indian Stamp Act … Continue reading

Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past events-Registration whether necessary- Whether admissible in evidence to prove factum of partition. % = The parties are decendants of a common ancestor, who had two sons. These two branches of the family had joint properties, both agricultural and residential. The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, ghers, ghetwars etc. The factum of partition was embodied in the memorandum of partition Exh. B-12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh. P-1 written in the presence of a number of villagers. A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share. In proceedings under s. 145 Cr. P.C., 1898, the Sub-Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land. In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate. On further revision the High Court affirmed the findings reached by the courts below. In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971. He construed the document Exh. p-12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act for a collateral purpose of showing nature of possession. In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge. In the appeal by special leave, it was contended for the appellants that the document Exh. P-12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. It, therefore, required registration under s. 17 of the Registration Act. Dismissing the appeal, ^ HELD: 1. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. [1115B- C] 2. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. [1116C-E] Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84 refereed to. In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The opening words of the document are: ‘Today after discussion it has been mutually agreed and decided that …’ what follows is a list of properties allotted to the respective parties. From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. It cannot, therefore, be construed to be an instrument of partition. [1116F-G; 1114C-D] Section 17(1)(b) of the Registration Act lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property. Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document. [1113H; 1114A] Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai v. Gita Bai, AIR (1958) SC 706 referred to. 3. A document though unregistered can, however, be looked into under the proviso to s. 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. [1116G-H; 1117A] Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 referred to. 4. In any view, the document Exh. P-12 is a mere list of properties allotted to the shares of the parties. It merely contains the recital of past events. It is, therefore, admissible in evidence. [1117B] Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604; Bageshwari Charan Singh v. Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian v. Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR 1109 (1942) Nag. 73 and Mulla’s Registration Act, 8th Edn. pp. 54-57 referred to. =1988 AIR 881, 1988( 2 )SCR1106, , 1988( 1 )SCALE391 ,

PETITIONER: ROSHAN SINGH & ORS. Vs. RESPONDENT: ZILE SINGH & ORS. DATE OF JUDGMENT24/02/1988 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J) CITATION: 1988 AIR 881 1988 SCR (2)1106 1988 SCALE (1)391 ACT: Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past … Continue reading

Indian Registration Act, 1908, s. 17-Mortgage by deposit of title deeds-Document evidencing mortgage when must be registered-Document which itself does not create contract but is only memorandum of contract already entered into need not be registered-Further evidence to prove terms of agreement not barred by ss. 91 & 92 Evidence Act, 1872. =The respondent Bank gave a loan to Godavari Sugars Refiners Ltd., of which defendants 1 to 3, as partners, were managing agents. Subsequently the bank filed a suit for the recovery of the loan. The appellant, a brother of defendant No. 1, was impleaded as defendant No. 4 and Godavari Sugars as defendant No. 5. The suit was decreed and the decree was upheld by the High Court. Only Defendant No.4 appealed tothis Court. The decree against the appellant was passed on the basis of Exh. 1-6, a document which was signed by Defendants 1 & 4 and in which it was recorded that the title deeds Exhs. A-7 and Exh. A-8 had been deposited with the respondent bank as security for money due. According to the appellant the said title deeds had been deposited by him as security for a loan given to him by the bank in his individual capacity, and that the signature of defendant no. I had been appended to Exh. A-6 only because he bad an interest in one of the properties covered by Exhs. A-7 and A-8. HELD.- If the parties intend to reduce their bargain: regarding the deposit of title deeds to the form of a document the document requires registration. If on the other hand its proper construction and the surrounding circumstances lead to the. conclusion that the parties did not intend to do so, then, there being no express. bargain the contract to create a mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration. [220 H-221A] Rachpal Maharaj v. Bhagwandas Daruka & Ors., [1950] S.C.R, 548 Pranjivandas Mehta v. Chan Ma Phee, L.R. 43 I.A. 123, Shaw v. Foster: (1872) L.R. 5 H. L. 321,341 and Subramonian =1971 AIR 1613, 1971Suppl.SCR 209, , ,

PETITIONER: VEERAMACHINENI GANGADHARA RAO Vs. RESPONDENT: ANDHRA BANK LTD. ORS. DATE OF JUDGMENT25/03/1971 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. CITATION: 1971 AIR 1613 1971 SCR 209 ACT: Indian Registration Act, 1908, s. 17-Mortgage by deposit of title deeds–Document evidencing mortgage when must be registered-Document which itself does not create contract but is only … Continue reading

Transfer of Property Act, 1882: s.52 – Transfer of property by a defendant pending a partition suit – Partition suit found to be not collusive – Decree in partition suit – In terms of decree, the pendente lite transferor found to have only half share in the property and she was allotted only one fourth of the property purchased by the transferee – Suit by transferee for declaration of title and permanent injunction in regard to transferred property – Courts below dismissed the suit – Held: Suit ought not to have been dismissed in entirety even if the sale was hit by the Doctrine of lis pendens – Transferee’s title will be saved in respect of that part of the transferred property allotted to the transferor in the partition suit – Transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. Transfer of Property: Suggestion to Law makers – Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and leads to unnecessary litigation – All these inconveniences, risks and misery could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property – Law Commission and the Parliament much consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures – Also, registration of agreements of sale should be made compulsory to reduce property litigation – Registration Act, 1908 – Legislation. Appeal: Appeal before Supreme Court – Concurrent findings of facts by the three courts below that the partition suit was not collusive – Interference with – Held: Not called for – Constitution of India, 1950 – Article 136. The appellant filed a suit for declaration of his right and title and permanent injunction in regard to the suit property. The case of the appellant was that he purchased the suit property from the second respondent under sale deed dated 11.4.1990 and he was a bona fide purchaser and was unaware of the partition suit between the second respondent and the first respondent who was the step daughter of the second respondent. On 17.3.1994, the said suit for partition was decreed by preliminary decree whereby the two respondents were held entitled to half share each in the properties including the suit property. In the final decree proceedings, the Commissioner divided the suit property in such a manner that nearly three-fourth portion of the suit property was allotted to the share of the first respondent and only about a one-fourth portion was allotted to the share of the second respondent. The first respondent resisted the suit contending that the appellant had purchased the suit property during the pendency of her suit for partition; and that being a purchaser pendente lite, the sale in his favour was hit by the doctrine of lis pendens and, therefore, he could not claim any right in the suit property; and she denied that there was any collusion between her and the second respondent. The second respondent did not contest the suit. The trial court dismissed the suit on the ground that the sale in favour of the appellant was hit by the doctrine of lis pendens. The appeal filed by the appellant was dismissed by the first appellate court. The High Court dismissed the second appeal. Aggrieved, the appellant filed the instant appeal. =Partly allowing the appeal, the Court HELD: 1. The trial court, the first appellate court and the High Court on appreciating the evidence have held that the partition suit was not collusive and that there was a valid reason for a larger portion of the suit property being allotted to the first respondent, plaintiff in the partition suit as the portion allotted to the second respondent had a house therein and to equalize the value, a larger portion (vacant plot) was allotted to the first respondent. There is no reason to interfere on that score. [Para 8] [570-C-D] Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569; Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 – relied on. 2.1. The principle underlying Section 52 of the Transfer of Property Act, 1882 is clear. During the pendency in a court of competent jurisdiction of any suit which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee’s right and title are saved fully or partially. [Para 10] [571-C-H; 572-A] 2.2. In the instant case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by the second respondent in favour of the appellant though not void, did not bind the first respondent. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would, therefore, be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant would be effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction. The suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore, the courts below ought to have decreed the appellant’s suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit. Therefore, the declaration of title with consequential permanent injunction as prayed is granted in regard to that portion of the suit property that was allotted to the second respondent in the partition suit. [Paras 11, 12, 16] [572-B-H; 573-A-B; 576-B] A related suggestion to the Law makers 3.1. Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and unnecessary litigation. At present, a prospective purchaser can find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way to ascertain whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. The inconveniences, risks, hardships and misery as a result of such transfers could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property. A solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. The Law Commission and the Parliament must consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties. [Paras 13, 14] [573-C-H; 574-A-C; 575-C] 3.2. At present in most of the States, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Registration of agreements of sale will reduce property litigation. It will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country. [Para 15] [575-D-G] Case Law Reference: AIR 1973 SC 569 relied on Para 9 (2007) 2 SCC 404 relied on Para 9 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10325 of 2010. From the Judgment & Order dated 01.09.2009 of the High Court of Judicature at Madras in S.A. No. 1141 of 2008. R. Balasubramaniam, B. Karunakaran, V. Balachandran for the Appellant. N. Shobha, Sriram J. Thalapathy, Adhi Venkataraman, S.P. Parthasarthy for the Respondents.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10325 OF 2010 [Arising out of SLP [C] No. 163 of 2010] T.G. Ashok Kumar … Appellant Vs. Govindammal & Anr. … Respondents JUDGMENT R.V.RAVEENDRAN, J. Notice to respondents was issued limited to the question whether the High Court ought to have decreed … Continue reading

Even though the mother is shown as nominee, widowed wife is also equally entitled to a share in the insurances and death benefits of deceased son= the 1st respondent and the appellant, being the wife and the mother of the deceased respectively, come within the meaning of Class I heirs as per Section 8 of the Hindu Succession Act, and therefore, the 1st respondent along with the appellant is entitled to a share in the amounts shown in the petition schedule as also the amount claimed by the appellant as counter-claim and also the death benefits payable by the employer of the deceased. =nomination does not confer any beneficial interest on the nominee and the amounts so received by the nominee are to be distributed according to Hindu Succession Act, 1956.

THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE B. CHANDRA KUMAR     Civil Miscellaneous Appeal No.941 of 2010     JUDGMENT:   (Per Hon’ble Sri Justice N.V. Ramana)             This civil miscellaneous appeal is directed against the order dated 30.08.2010 passed in O.P. No. 1634 of 2007 by the learned IV Additional District … Continue reading

Indian Succession Act, 1925 S.275/S.18, 20, 54-Compensation for land acquired-Reference Court directing payment of 2/3 and 1/3 share to the appellants and respondents-High Court holding that the appellants and respondents would be entitled to 50% share- Will entitles 2/3 share to appellants and 1/3 share to respondents-Probate granted by Civil Court-Conclusive and binding on the parties unless revoked in appropriate proceedings. =CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4258 of 1996. From the Judgment and Order dated 2.2.90 of the Madhya Pradesh High Court in F.A. No. 24 of 1978. B,S. Banthia and G. Prakash for the Appellants. Sushil Kumar Jain and Mrs Partibha Jain for the Respondents. =, 1996( 2 )SCR 833, 1996( 9 )SCC 48, ,

CASE NO.: Appeal (civil) 4258 of 1996 PETITIONER: ASHOK KUMAR SINGHAL AND ORS. RESPONDENT: STATE OF M.P. AND ANR. DATE OF JUDGMENT: 19/02/1996 BENCH: K. RAMASWAMY & G.B. PATTANAIK JUDGMENT: JUDGMENT 1996 (2) SCR 833 The following Order of the Court was delivered: Leave granted. We have heard learned counsel on both sides. One Gyaso … Continue reading

Punjab custom–Principles to be observed in dealing with customary law stated–Essentials of valid custom. = The plaintiff, a Rajput belonging to Tehsil Garhshankar in the District of Hoshiarpur (Punjab), instituted a suit against the defendant for the recovery of the properties which belonged to a deceased Gurkha woman R and which she had acquired by way of gift from a stranger, alleging that he was the lawfully wedded husband of Rand that accord- ing to custom which applied to the parties with regard to succession he was entitled to succeed to the moveable and immoveable properties of R in preference to the defendant who was his daughter by R. Held, that even if it be assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property which R had received as a gilt from a stranger and which she owned in her own right would be governed by the custom governing her husband’s family and not her own. Such marriage as was alleged to have been contracted by the plaintiff being evidently an act of rare occurrence, the rule of succession set up by the plaintiff cannot be said to derive its force from long usage and the plaintiff was not, in any event, entitled to succeed. Their Lordships laid down the general principles which should be kept in view in dealing with questions of custom- ary law as follows: (1) It should be recognised that many of the agricultur- al tribes in the Punjab are governed by a variety of cus- toms, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872. (2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by custom- ary law must prove that he is so governed and must also prove the existence of the custom set up by him. (See Daya Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410; Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10). (3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a CUstOm, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” should not be strictly 826 applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (See Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 32). (4) A custom may be proved by general evidence as to its existence by members of the tube or family who would natur- ally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v. Mt. Channi Bibi, A.I.R. 1925P.C. 267 at 271). (5) No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. (See Beg v. Allah Ditta, A.I.R. 1916 P.C. 129 at 131 ;Saleh Mohammad v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 25). (6)When the question of custom applicable to an agricultur- ist is raised, it is open to a party who denies the applica- tion custom to show that the person who claims to be gov- erned by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. (See Muhammad Hayat Khan v. Sandhe Khan and Others, 55 P.R. (1906) 270 at 274; Muzaffar Muhammad v. Imam Din, I.L.R. (1928) 9 Lab. 120, 125). (7) The opinions expressed by the compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the compiler’s remarks is that if they repre- sent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the 827 applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. (See Narain Singh v. Mr. Basant Kaur A.I.R. 1935 Lah. 419 at 421,422; Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 98S; Khedam Hussain v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79). =1952 AIR 231, 1952SCR 825, , ,

PETITIONER: THAKUR GOKALCHAND Vs. RESPONDENT: PARVIN KUMARI. DATE OF JUDGMENT: 16/05/1952 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN CITATION: 1952 AIR 231 1952 SCR 825 CITATOR INFO : R 1971 SC1398 (6) RF 1991 SC1654 (15,35) ACT: Punjab custom–Principles to be observed in dealing with customary law stated–Essentials of valid custom. HEADNOTE: … Continue reading

Indian Succession Act, 1925 S.275/S.18, 20, 54-Compensation for land acquired-Reference Court directing payment of 2/3 and 1/3 share to the appellants and respondents-High Court holding that the appellants and respondents would be entitled to 50% share- Will entitles 2/3 share to appellants and 1/3 share to respondents-Probate granted by Civil Court-Conclusive and binding on the parties unless revoked in appropriate proceedings. =CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4258 of 1996. From the Judgment and Order dated 2.2.90 of the Madhya Pradesh High Court in F.A. No. 24 of 1978. B,S. Banthia and G. Prakash for the Appellants. Sushil Kumar Jain and Mrs Partibha Jain for the Respondents. =, 1996( 2 )SCR 833, 1996( 9 )SCC 48, ,

CASE NO.:   Appeal (civil) 4258 of 1996 PETITIONER: ASHOK KUMAR SINGHAL AND ORS. RESPONDENT: STATE OF M.P. AND ANR. DATE OF JUDGMENT: 19/02/1996 BENCH: K. RAMASWAMY & G.B. PATTANAIK JUDGMENT: JUDGMENT 1996 (2) SCR 833 The following Order of the Court was delivered: Leave granted. We have heard learned counsel on both sides. One … Continue reading

IN THE SUPREME COURT OF UGANDA AT KAMPALA=whether the contract was frustrated due to accident, whether the owner entitled for compensation as agreed on daily rental basis till the date of delivery ? =The facts giving rise to this appeal are that the appellant (trading as Country Wide Contractors) entered into an agreement with State House for the hire of his motor vehicle Toyota Land Cruiser Reg. No. 860 UAJ at an agreed price of Uganda Shillings 200,000 per day. The hire was on a self-drive basis. The contract which was effective from 7th March 1998 only depended on a Local Purchase Order (LPO). On 31st March 1998, the vehicle was involved in an accident on Masaka Road. It was towed to Masaka Police Station where it was kept until 29th January 2000 when it was given by the Police to one Paul Kaggwa who had its registration card.

THE REPUBLIC OF UGANDA  IN THE SUPREME COURT OF UGANDA AT KAMPALA [CORAM: ODOKI, CJ., TSEKOOKO, KATUREEBE, TUMWESIGYE, AND KISAAKYE JJ.SC] CIVIL APPEAL NO. 16 OF 2010 BETWEEN MONDAY ELIAB::::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND ATTORNEY GENERAL::::::::::::::::::::::::::::::::::RESPONDENT [Appeal from the judgment of the Court of Appeal at Kampala (Mpagi-Bahigeine, Engwau and Twinomujuni, JJ.A) dated 16th April, 2010 in Civil Appeal No. 21 of 2008]  JUDGMENT OF … Continue reading

IN THE SUPREME COURT OF UGANDA AT KAMPALA=filing of an appeal with out leave=I am of the considered view that if the appellant’s counsel had applied for leave to appeal he would have included in the supplementary record, the Notice of Motion, the supporting affidavit and the court order granting such leave. He did not do so and resorted to forging the court record so as to mislead this court. This court is not inclined to entertain an appeal where the record appears to be forged. 15 This court takes very serious view of such conduct by an advocate. The advocate who indulged into this unethical conduct should be reported to the Law Council for further investigations and necessary action to be taken. Additionally, where leave is required to file an appeal such leave is not 20 obtained the appeal filed is incompetent and cannot even be withdrawn as an appeal. See Makhangu Vs Kibwana [1995-1998]. 1 EA 175. It is not a merely procedural matter but an essential step envisaged by Rule 78 of the rules of this court. I am unable to appreciate the 25 argument by appellant’s counsel that because the first appellate court failed in its duty to re-evaluate the evidence, therefore, the appeal was against the whole judgment and leave to appeal was not, therefore, necessary. If such argument were to be accepted it would make a mockery of the rules of procedure. lam, mindful of the law that generally the court will grant leave to appeal in civil proceedings, where it appears on the face of it that 5 there are grounds of appeal which deserve serious consideration, see Sango Bay Estates Ltd Vs Dresdrer Bank A,Cr (1971) EA 17. However, in the instant appeal no genuine steps were taken to apply for leave to appeal either in the High Court or in the Court of Appeal. 10 Consequently there was no competent appeal before the Court of Appeal. Similarly there is no competent appeal before this court. In the result I would strike out this appeal with costs to the respondent.

THE REPUBLIC OF UGANDA  IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: ODOKI, CJ, TSEKOOKO, KITUMBA, TUMWESIGYE AND KISAAKYE JJ.S.C.)  CIVIL APPEAL NO.11 OF 2010 BETWEEN DR. SHEIKH AHMED MOHAMMED KISUULE::::::::::: APPELLANT  AND GREENLAND BANK (IN LIQUIDATION)::::::::::::::::RESPONDENT [Appeal against the decision of the Court of Appeal (Mukasa-Kikonyogo DCI, MpagiBahigeine, Kavuma IIA) dated 11th February, 2009 in Civil Appeal No … Continue reading

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