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MARKANDEY KATJU

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what is the suppression of material fact ?=Constitution of India, 1950: Article 226-Exercise of jurisdiction under-Suppression of material fact by petitioner-Writ petition filed suppressing the fact of filling of suit in District Court and non-granting of interim injunction-However, after filing the writ petition suit was withdraw-High Court declining to entertain the writ petition-Held, though appellant had suppressed a material fact and High Court may be correct that in a case of this nature, Court’s jurisdiction may not be invoked, however, suppression of filing of the Suit is no longer a material fact, and incase another writ petition is filed disclosing all the facts, Court, at that point of time, will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is basic feature of the Constitution-Judgment of the High Court, on facts, shall not operate as res judicata-Judgment Review-Human Right of access to justice-Res judicata. Maxim-Ubi jus ibi remedium-Applicabilitty of. Words and Phrases: `Material facts’-Meaning of in the context of Court’s refusal to exercise its discretionary jurisdiction on petitioner suppressing material facts. Services of appellant, who was a confirmed employee of Indian Council for Child Welfare, a Society registered under the Societies Registration Act, were terminated. She challenged the said order by filing a suit in the District Court with an application for an ad interim injunction. The court notice but granted no ad interim injunction. Soon thereafter, the appellant filed a writ petition in the High Court challenging the termination order. In the Writ petition pendency of the suit was not disclosed. She filed an application for withdrawal of the suit and the District Court permitted the Suit to be withdrawn. Later, a Single Judge of the High Court, declined to entertain the writ petition on the ground of concealment of material fact by the writ petitioner. The intra-court appeal having been dismissed by a Division Bench of the High Court, the Writ petitioner filed the present appeal. On the question : how far and to what extent suppression of fact by court appeal having been dismissed by a Division Bench of the High Court, the writ petitioner filed the present appeal. =Dismissing the appeal, the Court HELD: 1.1. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. A person who has a grievance against a State, a forum must be provided for redressal thereof. The court’s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands, but to what extent such relief should be denied is to be considered. [Para 10] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166; Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. B.D. Agarwal & Ors., [2003] 6 SCC 230; Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., [2007] 5 SCALE 357; Zee Telefilms Ltd. v. Union of India, [2005] 4 SCC 649 and Hatton & Ors. v. United Kingdom, 15 BHRC 259, relied on. Hatton & Ors. v. United Kingdom, 15 BHRC 259, referred to. 1.2. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. [Para 11] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166, relied on. 1.3. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But when the said dirt is removed and the court is approached with clean hands. The court at that point of time will be entitled to determine the case on merits. [Para 11] Jai Narain Parasrampuria (D) and Ors. v. Pushpa Devi Saraf and Ors., [2006] 7 SCC, relied on. Moody v. Cox, (1917) 2 Ch 71, referred to. Halsbury’s Laws of England, Fourth Edn., Vol. 16, pg.874-876 and Equitable Remedies, Fourth Edn., pg. 5 by Spry, referred to. 2.1. Further, the court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. But, where one proceedings has been terminated without determination of the lis, it cannot be said that the disputant shall be without a remedy. [Para 18] Jain Singh v. Union of India and Ors., [1997] 1 SCC 1 and M/s. Tilokchand and Motichand & Ors. v. H.B. Munshi and Anr., [1969] 1 SCC 110,, relied on. 2.2. Existence of an alternative remedy by itself, may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction, but it is another thing to say that the court refuses to do so on the ground of suppression of facts. Ubi jus ibi remedium is a well known concept. A person who comes with a genuine grievance in an arguable case should be given a hearing. [Para 20 and 21] 3. In the instant case, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact. The Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court’s jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India, The judgment of the High Court, in a case of this nature, shall not operate as a res judicata. [Para 21 and 23] Lata Krishnamurthy, Rekha Pandey, Saurabh Ajay Gupta and Raj Kumar Tanwar for the Appellant. Nikhil Nayyar and Ankit Singhal for the Respondents.=, 2007(5 )SCR904 , 2007(6 )SCC120 , 2007(6 )SCALE293 ,

CASE NO.: Appeal (civil) 2205 of 2007 PETITIONER: Arunima Baruah RESPONDENT: Union of India & Ors DATE OF JUDGMENT: 27/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 2205 OF 2007 [Arising out of SLP (Civil) No. 9283 of 2006] S.B. SINHA, J : Leave … Continue reading

Partnership Act, 1932-Section 14-Property belonging to the firm-First partner claiming share in tenancy rights of second partner when partnership not in existence on the date of acquiring of the said premises by the second partner and no contribution by first partner towards acquisition of premises-Held: Premises acquired when partnership not in existence-No direct evidence that second partner brought the same as his investment in the partnership at the initial stage but it is evident that it was done later-Also in absence of deed of partnership, it cannot be held that the same had been originally brought in the stock of the firm-Agreement not being decisive, conduct of the parties assumes significance-Admission of second partner that the royalty received from the tenanted premises was being deposited in the partnership account thus, the property formed part of the assets of the partnership-Evidence Act, 1872-Section 58. The original tenant of the premises died in 1966 leaving behind him the assignors. The business as also the tenanted premises was assigned for valuable consideration. Appellant allegedly acquired the tenancy right in respect of the suit premises in terms of a deed of assignment. Appellant started business of DP Store in the said premises. He executed leave and licence agreement in relation to the self-same premises in favour of W in 1970. W was running a business in the said premises under the name and style of DP Store. Dispute arose between parities. W filed suit which was compromised. Appellant, respondent no 1 and one more entered into a partnership in the name of M/S Shreedhar Govind Kamerkar. Since appellant claimed full ownership in relation to tenanted premises as also in Shree Medicos, the same was dissolved in 1977. The deed of dissolution postulated that the said tenancy was a part of the assets of the partnership. Thereafter, appellant obtained possession of the premises in 1978. He started a business under the name and style of ‘Shree Medico’. Appellant refused to render accounts and started claiming partnership business and partnership premises as his own. Respondent no.1 filed suit claiming 1/3 share in suit business of Medical and General Store and also tenancy rights. Though in the suit respondent did not claim any relief in respect of the business of DP Store, but at the hearing, he claimed business running under the name and style of ‘Shree Medico’ and also interest in ‘DP Store’. Trial Judge dismissed the suit. Single Judge of High Court allowed the appeal holding that the respondent and appellant had 1/3rd share each in the business of DP Store carried in the premises and also equal tenancy rights in the premises where DP Store business was being carried out and that the partnership business of DP Store at the aforesaid premises stood dissolved from 1981. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Although a claim was made by the respondent no. 1 that the tenancy had been acquired by the partnership from the beginning, from the deposition of the respondent no.1, the following facts have been elicited : (i) DP Store was not run by the partners; (ii) All licences of Shree Medico were standing in the name of appellant. Respondent no 1 had never signed on any document pertaining to Shree Medico; (iii) He had no source of income in 1966; (iv) There is no documentary evidence to show that the said premises were acquired out of the funds of partnership firm and that the business of partnership was carried out at the same premises; (vi) The property was under attachment from 1969 to 1978; (vii) The possession of the property was obtained in 1978; and (viii) respondent no. 1 claimed a share in the business which was running under the name and style of ‘Shree Medico’. Despite that it appears, a statement was made by respondent no. 1 which was recorded by trial court that he is not claiming any right in the business of ‘Shree Medico’ but is claiming the right only in respect of the business of ‘DP Store’ and the tenancy rights in respect of the shop premises. [760-H; 761-A-E] 1.2. Appellant may be right in his submission that in view the pleadings of the parties as also the statements of the respondent no. 1 in his deposition before the trial court, the respondent could not lay any claim in respect of any business which was being carried in the premises under the name and style of ‘DP Store’, but the same, may not be decisive to arrive at a conclusion that the right in respect of the tenanted premises in question never formed the part of the assets of the partnership. [761-F-H; 762-A] 1.3. The parties have entered into the deed of dissolution voluntarily. Appellant is not an illiterate. He has been carrying on business. He had acquired tenancy right on his own showing and in his own name and also been fighting litigation with W for a long time. [763-E-F] 1.4. From the preamble of the deed of dissolution, it is evident that the partnership had been carrying on business under the name and style of ‘M/s Shreedhar Govind Kamerkar’ at X place, a tobacco shop at Y place and a tobacco godown at Z place but also ‘DP Store’ at the disputed premises. Clause (1) of the deed also refers to ‘DP Store’. In clause (3) of the deed, royalty in relation to a hotel, was assigned to respondent No.2. In relation to the ‘DP Store’, it was categorically stated that the matter was pending in the court. Clause (4) of the deed of dissolution suggests that the parties intentionally left out division of their properties in respect of ‘DP Store’. [763-F-H; 764-A-B] 1.5. All properties of the owner may not be partnership property and each case, thus, must be determined on the basis of fact materials on record. The very fact that the parties had referred to the business carried out under the name and style of ‘DP Store’ which was not and could not be the subject-matter of the partnership as the same was entered into in the year 1971 and dissolved in 1977, the admission of the appellant that the royalty received from the said tenanted premises was being deposited in the partnership account assumes significance. If the said property was the exclusive property of the appellant, and he had been dealing therewith as the sole owner thereof, the question of any reference being made thereto in the deed of dissolution would not have arisen. It may be true that in absence of the original deed of partnership having been brought on records, it is difficult for the court to arrive at a finding that the same had been originally brought in the stock of the firm. There is also no direct evidence that the appellant had brought the same as his investment in the partnership at the initial stage thereof but it is evident that the same was done at a later point of time. What, formed ‘the assets’ of the partnership must be gathered from the admission of the parties as also the other materials available on records. The said agreement having been in dispute, it may not be decisive. In a case of this nature, the conduct of the parties assumes significance. Admission, as is well-known, is the best proof of a claim. Section 58 of Evidence Act states that the facts admitted need not be proved. The very fact that the royalty received in respect of the said premises was being deposited in the partnership account is a clear pointer to show that the same was the property of the partnership. [764-B-G] Dwijendra Nath Mullick and Anr. v. Rabindra Nath Chatterjee and Ors., AIR (1987) Cal 289; Jayalakshmi v. Shanmugham and Ors., AIR (1988) Ker 128 and Arm Group Enterprises Ltd. v. Waldorf Restaurant and Ors., [2003]] 6 SCC 423, referred to. ‘Lindley & Banks on Partnership’, 18th Edn., referred to. 2. Mere execution of deed of dissolution did not discharge the parties thereto from their rights and liabilities. The rights and liabilities of the partners in respect of the partnership property would be discharged only when the firm is finally wound up and the properties of the firm are distributed. The partner of a dissolved firm can not only exercise his right under section 50, he may also restrain the use of the firm’s name and firm’s property in terms of section 53 of the Partnership Act. Section 37 determines the rights of the outgoing partner in certain cases to avoid shares to subsequent profits. If the tenancy right was being subjected to any profit by one of the partners, the cause of action arose. Therefore, the cause of action for the suit did not perish with the execution of the deed of dissolution. [768-F-H; 769-A-B] 1.8. With regard to the applicability section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the instant case is not where a landlord has brought any suit for eviction of the tenant on the ground that he had wrongfully assigned his right, title and interest in the tenanted premises in contravention of Section 15 of the Bombay Act, thus, liable for eviction. Instant case is with regard to partnership. Assignment of tenancy having regard to the statutory provision would not attract section 23 of Contract Act. Even otherwise in a case of this nature, the said question does not arise. [765-C-F] Uday Lalit, Chinmoy Khaladkar, P.N. Patwardhan and S.K. Nandy for the Appellant. Shekhar Naphade, Shivraj M. Jadhav for the Respondents.,= 2006(10 )Suppl.SCR751 , 2006(13 )SCC481 , 2006(14 )SCALE174 ,

CASE NO.: Appeal (civil) 5720 of 2006 PETITIONER: Shreedhar Govind Kamerkar RESPONDENT: Yesahwant Govind Kamerkar and Anr DATE OF JUDGMENT: 12/12/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.8368 of 2005] S.B. SINHA, J : Leave granted. Parties herein are brothers. The … Continue reading

Partnership Act, 1932: s. 29(2) – Right of transferee under heirs of partner of dissolved partnership – partnership of two brothers being co-owners of property dissolved due to death of one of them – Heirs of deceased partner transferring suit property – Right of transferee in possession to obstruct delivery of possession to auction purchaser in execution of decree in a suit for recovery of dues against erstwhile partnership – Held, partnership having stood dissolved after death of one partner, his heirs could transfer the property, and transferee having been put in possession had right to obstruct delivery of possession to auction purchaser – Code of Civil Procedure, 1908 – Order 21, r.97. Two brothers being co-owners of certain property formed a partnership. One of them died later and with that the partnership firm stood dissolved. Legal heirs of the deceased partner transferred the suit property through a sale deed to the predecessor-in-interest of the respondents. Thereafter a third party filed a suit for recovery of certain amount against the said partnership firm. The vendee was not a party to the said suit. The suit was decreed and the suit property was auctioned in execution of the decree to the appellant, who claimed delivery of possession. The vendee under the sale deed obstructed thereto and the appellant-auction purchaser filed an application for removal of obstruction. The executing court dismissed the application holding that legal heirs of deceased partner could sell the property and the respondents were lawful owner thereof. The appeal of the auction purchaser was dismissed so also was his second appeal. In the instant appeal filed by the auction purchaser it was contended on his behalf that respondents not being the legal heirs of the dissolved firm they did not derive any share and as such they had no right to offer resistance. =2007 AIR 1501, 2006(10 )Suppl.SCR1234, , 2006(14 )SCALE75 , =Dismissing the appeal, the Court HELD:1.1. A distinction exists between the right of a partner to sell a property during subsistence of the partnership and the right of an erstwhile partner to sell the property of the firm after it stood dissolved. In the instant case, the partnership stood dissolved on the death of one partner, whose heirs and legal representatives, therefore, could transfer the property at least to the extent of their own share. [1236-G-H] Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (dead) and thereafter his heirs and Ors., AIR (1966) SC 1300, referred to. 1.2. It has been found as of fact by all the three courts below that after purchasing the property from the heirs and legal representatives of the deceased partner, the respondents had been put in possession and they had been residing therein when the auction sale was effected. They had caused some improvements and a new building had also been constructed by them. As the suit was filed after the deed of sale was executed and registered, the respondents predecessor, in interest was a necessary party. He was not arrayed as a party in the suit. He having been found to be in possession of the property as on the date when the delivery of possession of the property was sought to be effected, a `fortiori’ he had a right to obstruct thereto. B.V. Deepak (NP) for the Appellant. C.S. Rajan, Fazlin Anam and E.M.S. Anam for the Respondent.

CASE NO.: Appeal (civil) 10588 of 1995 PETITIONER: M.V. Karunakaran Appellant RESPONDENT: Krishan Respondent DATE OF JUDGMENT: 15/12/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : Auction purchaser is the appellant before us being aggrieved by and dissatisfied with a judgment and order dated … Continue reading

Indian Partnership Act, 1932 -s.69(2A) as introduced by Maharashtra Amendment of 1984 (Maharashtra Act No.29 of 1984)- Constitutional validity of – Held: It is not valid – The provision violates Arts. 14, 19(1)(g) and 300A of the Constitution – It deprives a partner in an unregistered firm from recovery of his share in property of the firm or from seeking dissolution of the firm – Restrictions placed by s.69(2A) are arbitrary and of excessive nature and go beyond what is in the public interest – Constitution of India, 1950 – Arts. 14, 19(1)(g) and 300A. In a suit filed before the Bombay City Civil Court for dissolution of an unregistered partnership firm, the defendant took the stand that the suit was not maintainable in view of sub-section (2A) of Section 69 of the Indian Partnership Act, 1932. The said sub-section (2A) was introduced to s.69 of the Act, by the Maharashtra Amendment of 1984 (Maharashtra Act No. 29 of 1984). Till the Maharashtra Amendment of 1984 came into force on 1-1-1985, a partner in a firm could file a suit for dissolution of an unregistered partnership firm or for accounts of the dissolved firm or to recover the properties of the dissolved firm. However, in view of sub-section (2A) of Section 69, w.e.f. 1-1-1985 a partner in an unregistered partnership firm in the State of Maharashtra cannot file a suit for dissolution or for accounts of a dissolved firm or realize properties of a dissolved firm, unless the duration of the firm was only six months or it’s capital is upto Rs.2000/-. The question raised in the instant appeal was: whether sub-section (2A) of Section 69 inserted by the Maharashtra Amendment is constitutionally valid. =Allowing the appeal, the Court HELD:1.1. There is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal though of course registration and non registration have different legal consequences. The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Indian Partnership Act, 1932 the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. [Paras 26 & 28] [952-G-H; 954-D-E; 953-A-C] 1.2. The Maharashtra Amendment to s.69 of the Indian Partnership Act, 1932, whereby sub-section (2A) was introduced, effects such stringent disabilities on an unregistered firm which are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability with regard to an unregistered firm was made in sub-section (3)(a) to Section 69, and this clause enabled the partners in an unregistered firm to sue for the dissolution of the firm or for accounts or for realizing the property of the dissolved firm. Thus a partnership firm could come into existence, function as long as there is no problem, and disappear from existence without being registered. This changed by the 1984 Amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well. The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act. [Para 26] [953-C-H; 954-A] 1.3. The restrictions placed by sub-section (2A) of Section 69 introduced by the Maharshtra (Amendment) Act are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable. The said provision is clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. [Paras 27, 28] [954-A-D] 1.4. Sub-section (2A) of Section 69 of the Act virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or compensation in lieu thereof, and prohibits him from seeking dissolution of the firm although he may want it dissolved. Sub-section (2A) of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is ultra vires and hence declared unconstitutional. The suit can now proceed ignoring sub- section 2A which we have declared invalid. [Paras 16, 17, 20, 30] [950-E-F; 955-B-C] Maneka Gandhi vs. Union of India and another AIR 1978 SC 597; Chintamanrao and another vs. The State of Madhya Pradesh AIR 1951 SC 118; M.C.V.S. Arunachala Nadar v. State of Madras and others AIR 1959 SC 300; Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 and Government of Andhra Pradesh & Others vs. P. Laxmi Devi AIR 2008 SC 1640 – relied on. Chiranjit Lal Chowdhuri vs. Union of India AIR 1951 SC 41; Ananda Behera vs. State of Orissa AIR 1956 SC 17; Virendra Singh vs. State of U.P. AIR 1954 SC 447; Wazir Chand vs. State of H.P. AIR 1954 SC 415; Nathubhai Dhulaji vs. Municipal Corporation AIR 1959 Bom. 332 and Vajrapuri Naidu, N. vs. New Theatres, Carnatic Talkies Ltd. 1959(2) MLJ 469 – referred to. Case Law Reference AIR 1978 SC 597 relied on Para 19 AIR 1951 SC 41 referred to Para 21 AIR 1956 SC 17 referred to Para 21 AIR 1954 SC 447 referred to Para 21 AIR 1954 SC 415 referred to Para 21 AIR 1959 Bom. 332 referred to Para 21 1959(2) MLJ 469 referred to Para 21 AIR 1951 SC 118 relied on Para 24 AIR 1959 SC 300 relied on Para 25 AIR 1964 SC 1882 relied on Para 26 AIR 2008 SC 1640 relied on Para 30 CIVIL APPELLATE JURISDICTION : Civil Appeal No.7438 of 2000 From the Judgement and Order dated 27.09.2000 of the Hon’ble High Court of Judicature at Bombay in Civil References No. 19/1999 in S.C. Suit No. 6212 of 1998. Prasenjit Keshwani, Prashant Kumar, Shankar Divate, Chinmony Khaladkar, Asha Gopalan Nair, appearing for the parties.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7438 OF 2000 V. Subramaniam .. Appellant (s) -versus- Rajesh Raghuvandra Rao .. Respondent (s) JUDGMENT MARKANDEY KATJU, J. 1. This appeal by special leave has been filed against the impugned judgment of the Bombay High Court dated 27.9.2000 in Civil Reference … Continue reading

Evidence Act, 1872-ss. 58 and 145-Document without signature-Admitted by executor-Document has bearing effect on limitation-Not considered by High Court-Hence matter remitted back for reconsideration- Code of Civil Procedure, 1908-Order. 41 r. 31. Pleadings-Necessity of-On jurisdictional facts-Held: A jurisdictional fact need not necessarily be pleaded. Respondent Nos. 1 and 2 (plaintiffs) filed a suit against the appellants (defendant Nos. 2, 3 and 5 to 7) and respondent No. 3 (defendant No. 1) claiming 2/3rd share in the property described in Schedule A to the plaint and 4/9th share in the property described in Schedule B to the plaint and seeking direction to defendants 1 to 3 to render fair and proper accounts, in respect of the poultry business which was being run in Schedule B property, from the year 1968 and for future profits thereon. Plaintiffs claimed the properties as members of Hindu undivided family. Defendant No. 1 – respondent No. 3 was the ‘Karta’ of the family. It was alleged by the plaintiffs that their father (defendant No. 1 – respondent No. 3) had made investments for the poultry business started by the appellant Nos. 1 and 2. Arrangement was entered into between the parties that profits of the said business was to be shared by their grandfather on one hand and their father and appellant No. 1 on the other hand equally after giving due credit to the expenditure and interest to investments. Land was purchased in the name of the grandfather and appellant No. 1 from the money advanced. Poultry business was started on that. With the profits from the poultry business a tube manufacturing plant was installed. On death of their grandfather they inherited 2/3rd undivided interest in the two business. Defendant No. 1 (father of the plaintiffs) supported their case. Appellants (defendant Nos. 2 and 3) denied the allegations in the suit. They also took the plea that the suit was barred by limitation. Defendant Nos. 2 and 3 pleaded that the busineses were exclusively theirs. They had started the same after taking loan from Bank. They filed Exhibit B-8 showing that the accounts had been settled by and between the parties on 30.05.1979. They averred that even if allegations of the plaintiffs were correct, they were entitled to only 1/2 share in the land. Defendant No. 1 had admitted its execution by him. Trial Court by a preliminary decree directed partition of the schedule properties and rendering proper accounts in respect of 1968 onwards. High Court dismissed the appeal. It did not take into consideration Exbt B.8 on the ground that the same did not bear anyone’s signature. In appeal to this Court, appellants contended that High Court in having failed to take into consideration the effect to Exhibit B-8 committed serious error; that even though no averment was made with regard to this document in the Written Statement, but in view of the fact that defendant No. 1 admitted the execution thereof, the same should have been taken into consideration and that there was nothing to show as to how High Court came to a conclusion that plaintiffs and defendant No. 1 had 2/3rd share in the business venture. =Partly allowing the appeal and remitting the matter to High Court, the Court HELD: 1. In the fact situation of this case, particularly when the limitation issue required determination, Ex. B-8, should have received serious consideration at the hands of the courts below. [Para 26] [211-C, D] 2. The reasoning of the High Court in regard to Ex. B-8 cannot be accepted. Plaintiffs (Respondent Nos. 1 and 2) were claiming the property as members of the Hindu undivided family. Admittedly, the interest of the Hindu undivided family was being looked after by grand father of the plaintiffs and after his death by defendant No.1 (Respondent No.3). Correspondences were exchanged by and between Appellant Nos. 1 and 2 only with the grandfather and defendant No.1 (Respondent No.3). Yet again admittedly, defendant No.1 (Respondent No.3) was the manager of the Hindu undivided family. His dealing with the appellant in regard to the affairs of the business will have a direct bearing in the matter of determination of the issues raised before this court. [Para 21] [209-G, H; 210-A, B] 3. An admission made by a party can be used against him. When such admission is made by a Karta of the Hindu undivided family, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounts in the lis, issuance of a document purported to have been authored by one of the parties was required to be taken into consideration. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted need not be proved. [Paras 22 and 23] [210-B, C, D] Shreedhan Govind Kamerkar v. Yesahwant Govind Kamerkar and Anr., [2006] 14 SCALE 174, referred to. 4. It is also a trite law that when in cross-examination a witness accepts the correctness of a document, the same would be relevant. A pleading in regard to existence of a document may be necessary for advancing the case of a party, but when a witness admits a document to be in his own handwriting without anything more, the effect thereof may have to be considered having regard to the provisions contained in Section 145 of the Indian Evidence Act in terms whereof the only requirement would be that his attention is drawn before a writing can be proved. These relevant facts have not been considered by the High Court. The High Court merely proceeded on the basis that Ex.B-8 did not contain anybody’s signature. If defendant No.1 accepted the contents of the said document, which, according to him were noted by him from the books of accounts, authenticity thereof is not in question, and, thus, even in absence of books of accounts, relevant pages whereof were found to have been torn, the High Court ought to have taken the same into consideration as well as the admission on the part of defendant No.1 and the effect thereof. Such an admission could be taken into consideration both for the purpose of arriving at a finding in regard to the fact as to whether a full and final settlement of accounts had been arrived at, which was a relevant fact as also for determining the question of limitation. [Para 24] [210-D-G] 5. There is no document in writing to prove partnership. Accounts had not been demanded by the plaintiffs or the defendant no.3 for a long time. Even an oral partnership had not been proved. What was the subject matter of the partnership had also not been considered by the High Court. A share in a joint venture, in absence of any document in writing, must be determined having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant no.1 had 1/2 share in the property in terms of Section 45 of the Transfer of Property Act. If the said immovable property formed assets of the joint venture, the same would be an indicia to determine the shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with affairs of the business would be relevant. [Para 25] [210-H; 211-A, B, C] 6. If the contents of Ex. B-8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure(s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be in consonance with the pleadings of appellants was again of not much significance if it can be used for demolishing the case of plaintiffs and defendant No.1. If the figures contained in Ex. B-8 were accepted, it was for defendant No.1 to explain the same and not for appellants. The High Court thus committed a manifest error in not taking into consideration the contents of Ex. B-8 in its proper perspective. [Para 27] [211-E, F, G] 7. In terms of Section 3 of the Limitation Act, it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus, be pleaded. [Para 27] 8. It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of appellants in terms of Order 41 Rule 31 CPC. Thus, apart from Issues regarding settlement of accounts under Exbt. B-8 and limitation, other points which for its consideration including the extent of the share of plaintiffs and defendant No.1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the Trial Judge. Issue regarding Exbt. B-8 and limitation. therefore, require fresh consideration at the hands of the High Court. It may also be necessary for the High Court to consider the applicability of the relevant articles of the Limitation Act. [Paras 28, 29 and 30] [212-H; 213-A, B] A. Subba Rao for the Appellant. T.L.V. Viswanatha Iyer, Sr .Adv., P.S. Narasimha, Sridhar Polaraju, D. Julius Riamei, Avijeet Kr. Lala, Dr. K.P. Kaylash Nath Pillai and P.V. Dinesh for the Respondents.

CASE NO.: Appeal (civil) 7318 of 2000 PETITIONER: Gannmani Anasuya & Ors RESPONDENT: Parvatini Amarendra Chowdhary & Ors DATE OF JUDGMENT: 17/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA , J : 1. This appeal is directed against a judgment and decree dated 29.10.1999 passed … Continue reading

Abolition of Death Sentence 101. It is only the legislature which can abolish the death penalty and not the courts. As long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary. It is not for the judiciary to repeal or amend the law, as that is in the domain of the legislature vide Common Cause vs. Union of

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1969 OF 2009 Ajitsingh Harnamsingh Gujral .. Appellant -versus- State of Maharashtra .. Respondent J U D G M E N T MARKANDEY KATJU, J. “Qareeb hai yaaron roz-e- mahshar, Chupega kushton ka khoon kyonkar, Jo chup rahegi zubaan-e- khanjar, Lahu … Continue reading

Allowing the appeal, the Court HELD: 1.1. There is a difference between an agreement to sell and a sale. An agreement to sell is not a sale. An agreement to sell becomes a sale after both the parties signed the sale deed. What is relevant in fact is the actual valuation of the property at the time of the sale. The crucial expression used in Section 17 of the Stamp Act, 1899 is “at the time of execution”. Therefore, stamp duty on a sale has to be assessed on the market value of the property at the time of execution of sale deed, and not at the time of the prior agreement to sell, nor at the time of filing of the suit. [Para 10] [115-E; 116-D, E] 1.2. The Stamp Act, 1899 is in the nature of a taxing statute, and it has to be construed strictly; and considerations of hardship or equity have no role to play in its construction. It is true that no one should suffer on account of the pendency of the matter in court but this consideration does not affect the principles of interpretation of a taxing statute. A taxing statute has to be construed as it is. The contingencies that the matter was under litigation and the value of the property by that time shot up cannot be taken into account for interpreting the provisions of a taxing statute. [Para 10 and 14] [116-E; 118-D, E] Sub Registrat, Kodad Town and Mandal v. Amaranaini China Venkat Rao and Ors., AIR (1998) Andhra Pradesh 252, disapproved. 1.3. Literal rule of interpretation applies to the taxing statute. Construing section 17 read with section 2(12) of the Stamp Act in this back-ground, there is no manner of doubt that the registering authority is under an obligation to ascertain the correct market value at that time of registration and should not go by the value mentioned in the instrument. It is true that as per Section 3, which is the charging section, the instrument is to be registered on the basis of the valuation disclosed therein. But Section 3 cannot be read in isolation and has to be read along with Section 17 of the Act. From a composite reading of Sections 3, 17 and 27, it becomes abundantly clear that the valuation given in an instrument is not conclusive. If any doubt arises in the mind of the registering authority that the instrument is under-valued then as per Section 47-A as inserted by Rajasthan Act 10 of 1982 in Rajasthan Stamp Law (Adaptation) Act, 1952, the instrument can be sent to the Collector for determination of the correct market value. Under Section 47-A read with Sections 3, 17 and 27, it becomes clear that the registering authority has to ascertain the correct valuation given in the instrument regarding market value of the property at the time of the sale. [Para 11, 12 and 13] [117-E, F, G, H; 118-A, B] A.V. Fernandez v. State of Kerala, AIR (1957) SC 657, relied on. 1.4. The view taken by the single Judge as well as by the Division Bench of the High Court cannot be sustained and the same is set aside. The Collector shall determine the valuation of the property mentioned in the instrument on the basis of its market value on the date when the document was tendered by the respondent for registration, and the respondent shall pay the stamp duty charges and surcharge, if any, as assessed by the Collector as per the provisions of the Act. [Para 16] [119-B, C] V. Madhukar, Sumit Ghosh and Aruneshwar Gupta for the Appellants. Dr. Manish Singhvi and P.V. Yogeswaran for the Respondents. Stamp Act, 1899: ss. 2(12), 3, 17, and s.47A(as inserted by Rajasthan Act 10 of 1982 in Rajasthan Stamp Law (Adaptation) Act, 1952)-Sale deed-Registration of-Valuation for assessment of stamp duty-HELD: stamp duty on sale has to be assessed on market value of property at the time of registration of sale and not when parties entered into an agreement to sell nor when suit for specific performance of contract is filed. Interpretation of Statutes: Provisions of Stamp Act-Interpretation of-HELD: Stamp Act is in nature of a taxing statute and has to be construed strictly. Deeds and documents-Difference between agreement to sell and sale-Explained. In execution of decrees passed in two suits for specific performance of contract arising out of agreements to sell entered into on 20.10.1983, the court executed the sale deeds and sent the same on 17.3.1995 for registration before the Sub- Registrar, who, exercising his powers u/s. 47-A (1) as inserted by Rajasthan Act 10 of 1982 in Rajasthan Stamp Law (Adaptation) Act, 1952 sent the sale deeds to the Collector for determining market value of the properties and to assess the charge of stamp duty. The Collector assessed the value of the properties and raised deficient stamp duty and deficient registration fees and also levied the penalty. The order of the Collector was challenged in a writ petition before the High Court. The single Judge held that the relevant date for assessment of the market value would be the date on which the suit for specific performance of agreement to sell was filed. The Division Bench of the High Court having affirmed the view of the single Judge, the State Government filed the instant appeal. The question for consideration before the Court was: Whether valuation should be assessed on the market rate prevailing at the time of registration of the sale deed or when the parties entered into the agreement to sell.

CASE NO.: Appeal (civil) 5273 of 2007 PETITIONER: STATE OF RAJASTHAN & ORS RESPONDENT: M/S KHANDAKA JAIN JEWELLERS DATE OF JUDGMENT: 16/11/2007 BENCH: A.K. MATHUR & MARKANDEY KATJU JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 5273 OF 2007 [Arising out of S.L.P.(C) No.19439 of 2006] A.K. MATHUR, J. 1. Leave … Continue reading

In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him. 24. In USA the expression `palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 2028-2029__OF 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010] D. Velusamy .. Appellant -versus- D. Patchaiammal .. Respondent JUDGMENT Markandey Katju, J. 1. Leave granted. 2. Heard learned counsel for the appellant. None has appeared for the respondent although she has … Continue reading

Construction/ interpretation of a Will executed by one Nerode Chandra Vasu Mullick on 04.03.1932 vis-`-vis certain provisions of the Indian Succession Act (for short “the Act”), viz., Sections 113, 116 and 129 falls for our consideration in this appeal which arises out of a judgment and decree passed by a Division Bench of the Calcutta High Court affirming a judgment and order dated 2.06.1992 passed by a learned Single Judge of the said Court in Suit No. 866 of 1979 on a preliminary issue raised by the appellants therein as to whether the respondents had any locus to file the suit in question.

CASE NO.: Appeal (civil) 3374 of 2006 PETITIONER: Bajrang Factory Ltd. & Anr RESPONDENT: University of Calcutta & Ors DATE OF JUDGMENT: 18/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : 1. Construction/ interpretation of a Will executed by one Nerode Chandra Vasu Mullick … Continue reading

`shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’). Section 2(s) states: “`shared household` means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household”. Smt. Taruna Batra was married to Amit Batra, son of the appellants, on 14.4.2000. After the marriage respondent Taruna Batra started living with her husband Amit Batra in the house of the appellant no.2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant no.2 and not to her son Amit Batra. Amit Batra filed a divorce petition against his wife Taruna Batra, and it is alleged that as a counter blast to the divorce petition Smt. Taruna Batra filed an F.I.R. under Sections 406/498A/506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days. It is admitted that Smt. Taruna Batra had shifted to her parent’s residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. Taruna Batra. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office. It is stated by the appellants that their son Amit Batra, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started. The learned trial Judge decided both the applications for temporary injunction filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. Taruna Batra, respondent herein. Against the aforesaid order the appellants filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. Taruna Batra was not residing in the second floor of the premises in question. He also held that her husband Amit Batra was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application. Aggrieved, Smt. Taruna Batra filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals. The learned Single Judge of the High Court in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home.

CASE NO.: Appeal (civil) 5837 of 2006 PETITIONER: S.R. Batra and Anr. RESPONDENT: Smt. Taruna Batra DATE OF JUDGMENT: 15/12/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: JUDGMENT MARKANDEY KATJU, J. Leave granted. This appeal has been filed against the impugned judgment of the Delhi High Court dated 17.1.2005 in C.M.M. No. 1367 of 2004 … Continue reading

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