//
archives

MUKUNDAKAM SHARMA

This tag is associated with 11 posts

Code of Civil Procedure, 1908 – Or. XXII, r.5 – Suit seeking decree for partition and separate possession of 7/8th share in the property in question – Suit decreed – Decree set aside by First Appellate Court – Meanwhile the original defendant died and `A’ brought on record as his legal heir – High Court restored the decree of the trial court -`A’ died, purportedly leaving behind a Will – Appellant, claiming herself to be beneficiary under the Will, challenged the decree before the Supreme Court – Held: Disputed questions of fact having arisen in view of certain events after delivery of the judgment by the High Court, such questions of fact are required to be determined and decided, prior to adjudication on the respective claims of the parties – Trial court accordingly directed to take evidence for proper determination of the factual aspects and to transmit the entire records with the findings to the Supreme Court for further determination and orders by the Supreme Court – Mahomedan Law – Will. The respondents filed suit seeking decree for partition and separate possession of 7/8th share in the property in question. The suit was decreed. The decree was set aside by the First Appellate Court. Meanwhile the original defendant in the suit died, whereupon `A’ was brought on record as his legal heir. The High Court restored the decree of the trial court. `A’ died, purportedly leaving behind a Will. The appellant, the daughter of A’s brother-in-law, claiming herself to be beneficiary under the said Will, challenged the decree before the Supreme Court. Per contra, the respondents contended that the Will was not probated and was also neither genuine nor valid. They further contended that under the Mahomedan law, no claim for inheritance of the property of `A’, a deceased widow, could be claimed through an alleged Will which is not proved and even if such Will is found to be legal and valid, such a legatee would be entitled to only 1/3rd of the property. =Adjourning the matter, the Court HELD: 1.1. The claim of the appellant is restricted on the basis of the said purported Will. In case the Will propounded by the appellant is found to be not genuine and valid, her entire claim will have to be rejected and the property in question would revert back to the respondents. If, however, the aforesaid Will is found to be legal and valid, even in that event and as per the pleadings and the contentions of the respondents, the appellant may not be entitled to more than 1/3rd of the said property. These are the events which have arisen after delivery of the judgment by the High Court. Therefore, two issues arise for consideration at this stage, which are required to be determined and decided prior to entering into the respective claims of the parties. The first issue is as to whether the Will propounded by the appellant allegedly executed on 20.8.2001 and registered in the Office of the sub-Registrar on 29.8.2001, is a legal and valid document in the eyes of law. If the aforesaid issue is answered in favour of the appellant, the further question that is to be determined is as to whether the appellant, on the basis of the aforesaid Will, is entitled only to 1/3rd of the said area in terms of the Rules and Principles of Mahomedan Law. [Paras 24, 25, 26 and 27] 1.2. Along with the said issues which need to be determined and answered, there is another issue which arises for consideration, which is as to whether the appellant could claim to be a legal representative. Out of the said three issues raised herein, in so far as the question of entitlement of the appellant’s share is concerned, the same appears to be a question of law as it forms a part of the principles of Mahomedan Law. But the other two issues, namely, the status of the appellant and whether she would claim to be a legal representative along with the question as to whether the Will propounded by the appellant is legal and valid and how far the same could be relied upon, are disputed questions of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXII Rule 5 CPC. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the matter it is necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXII Rule 5 CPC. [Para 28] 1.3. The trial court is directed to take evidence on the two issues, namely: whether the appellant could claim to be a legal representative and whether or not the will propounded by the appellant, allegedly executed on 20.8.2001 and registered in the Office of the sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of law. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the Will propounded is legal and valid and how far the same could be relied upon. The trial court shall thereafter send back to this Court the records with the findings and the evidence that might be adduced and already on record. On completion of the aforesaid process, the trial court shall transmit the entire records with the findings in terms of this order to this Court, upon which, the appeal shall again be listed for hearing for further determination and orders. [Paras 30, 31] Kanhiya Singh Santok Singh and Ors. v. Kartar Singh, (2009) 5 SCC 155 – relied on. Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. , (2009) 6 SCC 160 – referred to. Case Law Reference: (2009) 6 SCC 160 referred to Para 21 (2009) 5 SCC 155 relied on Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7274 of 2010. From the Judgment and order dated 16.11.2005 of the High Court of Karnataka at Bangalore in RSA No. 578 of 2000. S.N. Bhat and Abhishek for the Appellant. D.N. Goburdhan for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7237 OF 2010 [Arising out of SLP(C) Nos. 5344 of 2006]   Smt. Ajambi (Dead) By Lrs. .. Appellant Versus Roshanbi and Ors. ..   Respondents   JUDGMENT Dr. Mukundakam Sharma, J. 1. Leave granted. 2. This Special Leave Petition is directed … 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 … AppellantVs.Govindammal & Anr. … Respondents JUDGMENTR.V.RAVEENDRAN, J. Notice to respondents was issued limited to the question whether theHigh Court ought to have decreed the appellant’s suit for declaration … Continue reading

Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by limitation as encroachment on a public street is a continuing wrong and therefore, there existed a continuing cause of action – S.22 of the Limitation Act would apply – Code of Civil Procedure, 1908. Code of Civil Procedure, 1908: Order I Rule 8 – Suit filed alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree challenged, on the ground that the suit was bad for non-compliance of the provisions of Order I Rule 8 – Held: Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected – Since the affected person himself had filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 – Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 – In that view of the matter, the suit filed was maintainable. Suit filed by respondents alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree affirmed by First Appellate Court as also High Court – Challenge to, on the ground that it was not proved that the suit land was a public street in which encroachment was made by the appellant-defendant – Held: On appreciation of the evidence, all the three courts below namely the High Court, the First Appellate Court as also the trial court held that the disputed suit land is a part of the public street where the appellant had encroached upon – The aforesaid findings are findings of fact – The evidence on record proved that there existed a public street of 10 feet width and also that the appellant had encroached upon the suit property consisting of the aforesaid street of 10 feet width – Decree passed by the trial court accordingly confirmed. The respondents filed civil suit alleging that appellant-defendant and another defendant had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment, and accordingly prayed for mandatory injunction against the defendants. The trial court decreed the suit and issued permanent injunction directing the removal of unauthorized construction. The judgment and decree passed by the trial Court was affirmed by the First Appellate Court (Additional District Judge), and further affirmed by the High Court in second appeal. In the instant appeal, the appellant challenged the judgments and decrees passed by the courts below on three grounds, viz. 1) that the suit itself was barred by limitation; 2) that the suit was bad for non-compliance of the provisions of Order I Rule 8 of the CPC and 3) that no official document was placed and no official witness was examined to prove and establish that the suit land was a public street in which encroachment was made by the appellant. =Dismissing the appeal, the Court HELD:1.1. The records placed disclose that the appellant in his written statement took up a plea that the suit is barred by limitation. However, despite the said fact no issue was framed nor any grievance was made by the appellant for non-framing of an issue of limitation. The appellant did not make any submission before the trial court and the first appellate court regarding the plea of limitation. The said plea was made before the High Court which held that although such a plea was not raised either before the trial court or before the appellate court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act which places an obligation upon the Court to discuss and consider such a plea despite the fact that no such plea was raised and argued before the Trial Court as also before the First Appellate Court. The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action. The records disclose that initially a complaint under Section 133 of Cr.PC was filed which was pursued with all sincerity upto the High Court. But the High Court held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. Immediately thereafter the aforesaid suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, there is no merit in the said contention. [Paras 15, 16, 17] [1086-G-H; 1087-A-E] 1.2. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury. [Para 18] [1087-F-H; 1088-A] 1.3. Section 22 of the Limitation Act, 1963, provides that “in case of a continuing breach of contract or in case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.” In an earlier case, this court had held that when a right of way is claimed whether public or private over a certain land over which the tort-feaser has no right of possession, the breaches would be continuing, to which the provisions of Section 22 of the Limitation Act, 1963, would apply. Therefore, the plea that the suit is barred by limitation has no merit at all. [Para 19] [1088- C-E] Sankar Dastidar v. Shrimati Banjula Dastidar and Anr., AIR 2007 SC 514 – relied on. 2. Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since the affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non- compliance of the provisions of Order I Rule 8 of the CPC. Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 CPC. In that view of the matter, the suit filed by the plaintiff/respondent No. 1 was maintainable. [Paras 20, 22 and 23] [1088-F-G; 1089-B-D] Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur v. Smt. Chhoti and Ors., AIR 1990 SC 396 – referred to. 3.1. The suit was initially instituted against two defendants. The appellant was defendant No. 2 in the said suit. So far as defendant No. 1 is concerned, the records disclose that the Panchayat of the area took a decision that both of them have encroached upon a public property and the street and therefore they should remove the encroachment. It is disclosed from the records that pursuant to the aforesaid decision of the Panchayat, the defendant No. 1 removed his encroachment after admitting that he had also encroached upon some area of the 10 feet wide street which fact he admitted before the panchayat and later on he removed the said encroachment. The aforesaid fact is established from the statements of PW-1, PW-5 and PW-6 who were present and participated in the said Panchayat and also corroborated the said admission before the Panchayat. [Paras 24] [1089-E-H; 1090-A] 3.2. In all 8 witnesses were examined by the plaintiff respondent No.1. PW-3, who was examined in the suit proved the report of the BDO who had visited the disputed property on 18.1.1995 after which he also submitted a report certifying that an encroachment has been made by the appellant over the disputed street. PW-4, the original owner of the entire area, had specifically stated in his evidence that he had carved out a colony in the year 1981-82 and he had sold the plots to the plaintiff as well as defendants and other inhabitants of the village and towards eastern side of the plot of the defendant/appellant he had left a street of 10 feet width. As against the aforesaid evidence adduced on behalf of the plaintiff/respondent No. 1, the appellant examined himself as DW-1 wherein he only took a stand that disputed property is not a part of the street and that after purchasing the plot he had constructed the house and despite the said fact no objection was taken and therefore it cannot be said that he had constructed a house also on a part of the said disputed suit property. On appreciation of the aforesaid evidence, all the three courts namely the High Court, the First Appellate Court as also the trial court held that the aforesaid disputed suit land is a part of the public street where the appellant has encroached upon by constructing a part of the house. The aforesaid findings are therefore findings of fact. Public Officer namely Patwari was examined who had proved the report submitted by the BDO stating that part of the suit property is a public street. [Paras 26, 27] [1090-E- G] 3.3. The site plan (Ext. PW-7A) filed by the plaintiff/respondent proves and establishes that there is a public street of 10 feet width. In all the sale deeds of the area as disclosed from the statement of PW-4, the aforesaid street of 10 feet width is shown and the aforesaid evidence go unrebutted. Thus there exists a street of 10 feet width. It is also proved from the evidence on record that the appellant has encroached upon the suit property consisting of the aforesaid street of 10 feet width. That being the position, there is no infirmity in the judgment and decree passed by the Trial Court and affirmed by the First Appellate Court and by the High Court in the Second Appeal. [Para 28] [1090-H; 1091-A-B] 4. The decree passed by the trial court is confirmed. If the appellant fails to vacate and remove the unauthorized encroachment within a period of 60 days, it will be open for the plaintiff/respondent No. 1 to get the decree executed in accordance with law. [Para 29] [1091-C-D] Case Law Reference: AIR 2007 SC 514 relied on Para 19 AIR 1990 SC 396 referred to Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1042 of 2011. From the Judgment and Order dated 31.07.2009 of the High Court of Punjab and Haryana at Chandigarh in RSA No. 2698 of 2008. Anoop G. Choudhary and J. Chaudhary, Devendra Kr. Singh, Ajay A. and Prem Sunder Jha for the Appellant. Jasbir Singh Malik, Ekta Kadian, Devender Kumar Sharma and S.K. Sabharwal for the Respondents

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1042 OF 2011 [Arising out of SLP (C) No. 35813 of 2009] HARI RAM ….Appellant Versus JYOTI PRASAD & ANR. … Respondents JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. Leave granted. 2. By this judgment and order, we propose to dispose of … Continue reading

ARBITRATION=”Only because the respondent has accepted the final bill, the same would not mean that it was not entitled to raise any claim. It is not the case of the appellant that while accepting the final bill, the respondent had unequivocally stated that he would not raise any further claim. In absence of such a

1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1735 OF 2006 Durga Charan Rautray …. Appellant Versus State of Orissa & Anr. …. Respondents J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. The appellant was entrusted with the construction of balance work of earth … Continue reading

Motor Vehicles Act, 1988 – ss.163A and 166 r/w 168; Second Schedule – Bus carrying school children met with accident and fell into river from bridge – Death of 29 children – Most of them were in the age group of 10 to 18 years – Claim for compensation by parents of deceased children – Courts below awarded pecuniary compensation, on basis of Second Schedule and relevant multiplier under the Act, which in majority of the cases ranged from Rs.1,55,000/- to Rs.1,65,000/- – Though Tribunal did not award any non-pecuniary compensation, the High Court awarded non-pecuniary damages of Rs.75,000/- – On appeal, held: Pecuniary damages seeks to compensate losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses – On facts, no reason to differ with Courts below in respect of award of pecuniary compensation – As regards non-pecuniary damages, the same include immeasurable elements such as pain, suffering, loss of amenity and enjoyment of life and on facts, High Court rightly enhanced compensation in this category by Rs.75,000/- – However, compensation must also be granted with regard to future prospects of the children, which aspect was overlooked by both the Courts below – The records showed that the children were good in studies and studying in a reasonably good school and naturally, their future prospect was presumably good and bright and hence, it would be appropriate to grant further amount of Rs.75,000/- (which is roughly half the pecuniary compensation) as compensation for future prospects of the children. A bus carrying school children met with accident and fell into the Yamuna river from the bridge. Consequent to the accident, 29 children died. The parents of the deceased children i.e. the appellants filed claim petitions on account of fault liability and sought for payment of compensation under section 163A r/w Second Schedule of the Motor Vehicles Act, 1988. The Motor Accident Claims Tribunal held that the accident took place due to negligence of the driver (respondent no.1) and, therefore, he alongwith the owner and the insurer (respondent nos.2 and 3) were jointly and severally liable to pay compensation and thereafter awarded a sum of Rs.1,55,000/- in case of children between age group of 10 to 15 years and Rs.1,65,000/- in case of children between 15 to 18 years. In case of children aged less than 10 years, Rs.1,05,000/- was awarded in one case and in two other cases Rs.1,30,000/- and Rs.1,31,000/- respectively was awarded. Additional Rs.1,000/- was awarded in case of the third child aged less than 10 years, as in some other cases, for loss of books. The compensation figure included Rs. 5,000/- each towards funeral and last rites. As per the Second Schedule of the Act, the balance amount was awarded for loss of dependency that was calculated on notional income of Rs. 15,000/- per annum of which Rs. 5,000/- was deducted towards personal living expenses. The Tribunal applied multiplier of 15 for children below 15 years and multiplier of 16 for children between 16 and 18 years respectively. It awarded interest @ 6% for four years. On appeal, the High Court, by the impugned judgment, held that the appellants were entitled to enhancement of compensation in all the cases by Rs.75,000/- and Rs.1000/- (if not already awarded by the Tribunal) and interest @ 7.5% p.a. from the date of filing of the claim petition till payment. =Disposing of the appeals, the Court HELD: 1.1. Compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation. [Para 10] [99-F-G] 1.2. In cases of motor accidents the endeavour is to put the dependents/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. [Para 11] [99-H; 100-A-B] 1.3. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. Pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc. The Motor Vehicles Act, 1988 provides for payment of “just compensation” vide section 166 and 168. It is left to the courts to decide what would be “just compensation” in facts of a case. [Para 12] [100-B-D] 1.4. For calculating pecuniary loss or loss of dependency, it is the multiplier method which should be applied. The said method is based upon the principle that the claimant must be paid a capital sum, which would yield sufficient interest to provide material benefits of the same standard and duration as the deceased would have provided for the dependents, if the deceased had lived and earned. The multiplier method is based upon the assessment that yearly loss of dependency should be equal to interest that could be earned in normal course on the capital sum invested. The capital sum would be the compensation for loss of dependency or the pecuniary loss suffered by the dependents. Uniform application of the multiplier method ensures consistency and certainty and prevents different amounts being awarded in different cases. [Para 13] [100-D-G] 1.5. For calculating the yearly loss of dependency the starting point is the wages being earned by the deceased, less his personal and living expenses. This provides a basic figure. Thereafter, effect is given to the future prospects of the deceased, inflation and general price rise that erodes value and the purchasing power of money. To the multiplicand so calculated, multiplier is to be applied. The multiplier is decided and determined on the basis of length of dependency, which must be estimated. This has to be necessarily discounted for contingencies and uncertainties. [Para 14] [100-H; 101-A-B] Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; Managing Director TNSTC Ltd. v. K. T. Bindu (2005) 8 SCC 473; T. N. State Transport Corp. Ltd. v. S. Rajapriya (2005) 6 SCC 236; New India Assurance Co. Ltd. v. Charlie (2005) 10 SCC 720 and United India Insurance Co. Ltd. v. Patrica Jean Mahajan (2002) 6 SCC 281 – relied on. 2.1. The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. [Para 15] [101-D-E] 2.2. Under the Second Schedule of the Motor Vehicles Act, 1988, in case of a non-earning person, his income is notionally estimated at Rs.15,000/- per annum. The Second Schedule is applicable to claim petitions filed under Section 163A of the Act. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable under Section 166 read with 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases. [Para 16] [101-H; 102-A-B] Abati Bezbaruah v. Dy. Director General, Geological Survey of India (2003) 3 SCC 148; United India Insurance Company Ltd. v. Patricia Jean Mahajan (2002) 6 SCC 281 and UP State Road Transport Corp. v. Trilok Chandra (1996) 4 SCC 362, relied on. Taff Vale Rly. Co. v. Jenkins (1911-13) All England Reporter 160, referred to. 3. In factual position of the present case, the date of accident is 18.11.1997. Prior to this, the Second Schedule of the Act was already introduced w. e. f. 14.11.1994. Thus, the notional income mentioned in the Second Schedule and the multiplier specified therein can form the basis for the pecuniary compensation for the loss of dependency in the present cases. No fact and reason was highlighted during the arguments why the Second Schedule should not apply in the present cases. The Second Schedule also provides for deduction of 1/3rd consideration towards expenses; which the victim would have incurred on himself if he had lived. As compensation for loss of dependency is to be calculated on the basis of notional income because the deceased was a child. It by necessary implication takes into account future prospects, inflation, price rise etc. Therefore keeping in view of Second Schedule of the Act, this Court do not see any reason to differ with the view taken by the Tribunal as well as the High Court in so far as award of pecuniary compensation to the dependents/claimants is concerned. [Paras 17 and 18] [102-D-G] 4.1. As regards non-pecuniary compensation, it is extremely difficult to quantify the same as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non-payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of the wrong done to him by way of damages/monetary compensation. When a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for “loss of expectation of life”. This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action. [Para 24] [105-G-H; 106-A-D] 4.2. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression “standard compensation” and “conventional amount/sum” to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensations. [Para 25] [106-E-F] 4.3. While quantifying and arriving at a figure for “loss of expectation of life”, the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further pecuniary benefits that has been awarded under another head i.e. pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This compensation is paid for loss of prospective happiness which the claimant/victim would have enjoyed had the child not died at the tender age. [Para 26] [106-G-H; 107-A-B] R. D. Hattangadi v. Pest Control (India) (P) Ltd. (1995)1 SCC 551 and Common Cause, A Registered Society v. Union of India (1999) 6 SCC 667, relied on. Ward v. James (1965) I All E R 563, referred to. Halsbury’s Laws of England 4th Edition, Vol. 12, page 446, referred to. 5.1. In addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. [Para 31] [108-G-H; 109-A] 5.2. In the present case, the claim with regard to future prospect should have been addressed by the courts below. While considering such claims, child’s performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. But they were performing well in studies, natural consequence supposed to be a bright future. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, it would be appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. This amount i.e. Rs. 75,000/- is over and above what has been awarded by the High Court. [Para 32] [109-B-G] General Manager, Kerala S.R.T.C. v. Susamma Thomas (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; Lata Wadhwa v. State of Bihar (2001) 8 SCC 197; M.S.Grewal v. Deep Chand Sood (2001) 8 SCC 151 and State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484, relied on. 6. Pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. It is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration. The High Court in present case rightly enhanced the compensation in this category by Rs. 75,000/-. [Para 34] [110-H; 111-A-E] 7. With respect to the interest, the Tribunal had directed for payment of interest for only four years at the rate of 6% per annum from the date of filing of the claim petition till the award and in case payment was not made within 30 days then further interest at the rate of 6% from the date of award till payment. In appeal, the High Court awarded 7+ % per annum from the date of filing of the petition till payment. The interest awarded by the High Court is just and proper, so the same need not be disturbed. [Para 35] [111-F-G] Case Law Reference: (2001) 8 SCC 197 relied on Para 9 (1996) 3 SCC 179 relied on Para 14 (2005) 8 SCC 473 relied on Para 14 (2005) 6 SCC 236 relied on Para 14 (2005) 10 SCC 720 relied on Para 14 (2002) 6 SCC 281 relied on Para 14 (1911-13) All Eng.Reporter 160 referred to Para 15 (2003) 3 SCC 148 relied on Para 16 (2002) 6 SCC 281 relied on Para 16 (1996) 4 SCC 362 relied on Para 16 (1965) I All E R 563 referred to Para 21 (1995) 1 SCC 551 relied on Para 22 (1999) 6 SCC 667 relied on Para 23 (2001) 8 SCC 151 relied on Para 29 (1994) 2 SCC 176 relied on Para 31 (1996) 3 SCC 179 relied on Para 31 (2003) 7 SCC 484 relied on Para 33 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3608 of 2009. From the Judgment & Order dated 17.5.2006 of the High Court of Delhi at New Delhi MACT Nos. 194, 195, 196, 167, 199, 200, 201-202, 203-204, 207-208, 209-210, 213, 214, 215, 217, 221, 222, 228-229, 231-232, 233-234 and 742-743 of 2005. WITH C.A. Nos. 3609 & 3607 of 2009. Kailash Vasdev, T. Harish Kumar, Yudhister Singh, Ashok Mathur (NP) and Rohit Minocha for the Appellants. Pankaj Bala Verma (for Kiran Suri), P.R. Sikka, Dhiraj, Reeta Dewan Puri, Mohd. Wasi (for P.N. Puri), Ravi Kumar Tomar, (for Jitendra Kumar), and Vipin Gogia (for Jaspreet Gogia) for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 3608 OF 2009 (Arising out of SLP(C) No. 17525 of 2006) R. K. Malik & Anr. …..Appellants Versus Kiran Pal & Ors. …..Respondents With CIVIL APPEAL No. 3609 OF 2009 (Arising out of SLP(C) No. 1686 of 2007) And CIVIL APPEAL No. … Continue reading

Partition – Suit for partition and possession – Of four plots – Claiming half share -Defendant Co-sharer selling one plot , without consent of the plaintiff – Trial Court holding that the plaintiff was entitled to only , share – First appellate court holding the plaintiff entitled to + share – Declaring the sale as void, direction to purchaser to hand-over possession of the plot to the co-sharers – High Court in second appeal, modifying the decree holding that sale to the extent of share of the plaintiff void – Direction to purchaser to hand-over the possession of half share to the plaintiff – On appeal, held: Plaintiff was entitled to + share in all 4 plots – The co-sharer could not have sold the property more than his share, nor could have delivered possession till the partition of the property – The Court even under equity cannot give the sold plot to the vendee and adjust the share of the co-sharers from the remaining three plots as the sold plot was extremely valuable – Transfer of property. Respondent No. 1 filed a suit seeking decree of partition against her brother defendant No. 1 in the property (4 plots) left behind by their father, claiming to be co-sharer to the extent of half share. It was contended that defendant No.1 had sold one plot in its entirety to defendant No. 3 (appellant) without her consent, and thus the sale was void and not binding on her. She also prayed for recovery of possession. Trial court passed a decree holding that the plaintiff was entitled to , share of the suit property and defendant No. 1 was entitled to _ share. In appeal, first appellate court held that the plaintiff was entitled to half share; that sale by defendant No. 1 in favour of defendant-appellant was not binding on her. Defendant-appellant was directed to hand over the possession of the purchased property to the co-sharers. Second appeal was filed by appellant. High Court disposed of the appeal by way of a consent decree whereby the decree by first appellate court was modified holding that the sale to the appellant was null and void and not binding on the plaintiff to the extent of half share in that plot. High Court further directed the appellant to hand over the possession of the plot to the plaintiff to the extent of her half share. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. [Para 15] [1114-F-G] M.V.S. Manikayala Rao vs. M. Narasimhaswami and Ors. AIR 1966 SC 470; Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh and Ors. AIR 1953 SC 487, relied on. 2. All the 4 plots of land which are the suit property were joint property and therefore, the plaintiff and defendant No. 1 owned and possessed half undivided share each in all the 4 properties. The defendant No.1 who is the brother of the plaintiff could not have therefore sold the piece of land in its entirety in favour of the defendant-appellant, in as much as the aforesaid land was undivided and the plaintiff and defendant No. 1 were two co-sharers in the said property. High Court, therefore, was correct and legally justified in declaring the plaintiff as the owner and holder of half of the shares in all the four properties which are undivided. The defendant No.1 being a co-sharer could not have sold by a registered sale deed more than his share nor could he have delivered possession till the said property is partitioned by the parties amicably or through the intervention of the court. [Para 14] [1113-G-H; 1114-A-C] 3. It is settled law under the Transfer of Property Act, that a purchaser cannot have a better title than what his vender had. The possession which is claimed by the defendant-appellant in respect of the entire land was also illegal and without proper sanction of law. So long as the property is joint and not-partitioned, the defendant-appellant is not entitled to get possession of the said land. Even otherwise, the appellant having purchased the land from defendant No.1 could be entitled to be declared at the most to the extent of half share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land. [Para 14] [1114-C-F] 4. The appellant having purchased only undivided share in the aforesaid property could not have purchased, owned and claimed for more than half share in the said property nor the appellant could have claimed possession in respect of the entire property. [Para 19] [1116-D-E] 5. There is no reason to hold in favour of the appellant even on the ground of equity, as the appellant himself is responsible for his act in purchasing undivided share in a part of the suit property without the knowledge and consent of the co-sharer. Besides, indisputably and as held by the trial court, the land forming part of the sale deed is extremely valuable and, therefore, the question of equity does not arise as the court would be doing injustice to one having title and ownership if it accepts the prayer of the appellant. [Para 19] [1116-E-G] Case Law Reference: AIR 1966 SC 470 Relied on Para 15 AIR 1953 SC 487 Relied on Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6508 of 2005. From the Judgment & Order dated 8.4.2004 of the High Court of Judicature at Bombay, Bench at Nagpur in Second Appeal No. 359 of 2003. Ashok Srivastava, Satyajit A. Desai, Anangha S. Desai, Venkateswara Rao Anumolu for the Appellants. Subhash Paliwal, A.K. Sanghi for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6508 OF 2005 Ramdas ….Appellant Versus Sitabai & Ors. ….Respondents JUDGMENT Dr. Mukundakam Sharma, J. 1. This appeal arises out of a Judgment and Order passed by the High Court of Bombay, Nagpur Bench while disposing of a second appeal filed by … Continue reading

Land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16: Acquisition of land by State Government-Easementary right on the ground of necessity-Availability of-High Court rightly drew a distinction between an easement of an ordinary nature for which compensation could be claimed and an easement of necessity in respect of which right of passage could not be extinguished by reason of acquisition, hence justified in granting right of passage to the claimant both on principle and precedent-Civil Procedure Code, 1908-Section 100-Constitution of India, 1950-Article 136. espondent Nos. 1 to 3 had purchased certain portion of land belonging to `R’. The sale deed specifically mentioned that respondent-vendees would have access to their land through a passage from the remaining part of the land of the vendor, which was later acquired by the Government of Himachal Pradesh. The State Government blocked off the passage by a barbed wire fencing, thereby preventing respondents’ access to their land. Aggrieved, respondents filed a suit for issuing injunction against the appellants. Suit was dismissed by the Trial Court. Appellate Court decreed the suit holding that there existed a passage from the land acquired by the State Government to the land of the respondents and they had no other passage to their land. Appeal against this order was dismissed by the High Court. Hence the present appeal. It was contended by the appellants that once an award has been made under Section 11 of the Land Acquisition Act and possession of the acquired land was taken, the land would vest absolutely in the Government free from all encumbrances. =Dismissing the appeal, the Court HELD: 1.1. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondent Nos. 1 to 3, is through the land of the appellant and as such they had a right to approach their land as claimed by them and the appellant had no right to obstruct the approach by putting up a barbed wire fencing. [212-E] 1.2. The High Court drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity, a right of passage, and held that right of passage by way of necessity, as enjoyed by the respondents over the land of original landlord and presently acquired by the appellant, was not extinguished by reason of acquisition. In the peculiar facts and circumstances of the case, the distinction drawn by the High Court about non-extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. The present case is not a fit case to be interfered with in exercise of the jurisdiction under Article 136 of the Constitution. Hence, the appeal is dismissed. [213-B; 214-A-B-C] Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR (1955) SC 298, relied on. State of Himachal Pradesh v. Tarsem Singh and Ors., [2001] 8 SCC 104, distinguished. Rakesh Dwivedi and Naresh K. Sharma for the Appellants. A.V. Palli and Mrs. Rekha Palli for the Respondent Nos. 1-3. J.S. Attri for the Respondent No. 4.

CASE NO.: Appeal (civil) 1022 of 2000 PETITIONER: H.P. State Electricity Board & Ors. RESPONDENT: Shiv K. Sharma & Ors. DATE OF JUDGMENT: 10/01/2005 BENCH: Shivaraj V. Patil & B.N. Srikrishna JUDGMENT: J U D G M E N T Srikrishna, J. The Himachal Prades State Electricity Board, Shimla, challenges by this appeal the judgment … Continue reading

Maharashtra Project Affected Persons Rehabilitation Act, 1986 – s. 2 (8) and Schedule II – Notification u/s. 4 of Land Acquisition Act – For acquisition of the land belonging to Hindu Joint Family for the purpose of 1986 Act – For acquisition, whether the limit prescribed under Schedule II would be applicable to the holdings of Hindu Joint Family as one unit or to the holding of each coparcener of the joint family as one unit – Held: In view of s. 2(8) and s. 3(35) of Bombay General Clauses Act, 1904, Hindu Joint Family is covered under the expression `person’ – Therefore the limit prescribed under Schedule II has to be considered in the light of the holdings of Hindu Joint Family and not holding of the individual coparcener of the family – Definition of `person’ given u/s. 2(22) of Land Ceiling on Holdings Act is not applicable to s. 2(8) – Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 – s. 2(22) – Bombay General Clauses Act, 1904 – s. 3 (35) – Land Acquisition Act, 1898 – s. 4. Words and Phrases – `Person’ – Meaning of, in the context of s.2(8) of Maharashtra Project Affected Persons Rehabilitation Act, 1986 and s. 3(35) of Bombay General Clauses Act, 1904 Notification u/s. 4(1) of Land Acquisition Act was issued by respondent- State notifying acquisition of certain agricultural land under the Maharashtra Project Affected Persons Rehabilitation Act, 1986. The appellants filed a writ petition challenging the legality of the Notification. They took the plea that holdings of each coparcener of the Hindu Joint Family would be calculated as one unit and thus the total holding of the appellants’ joint family was within the limit prescribed under Schedule II of the 1986 Act and, therefore, could not be acquired under the 1986 Act r/w. the Land Acquisition Act. The High Court dismissed the petition holding that the expression `person’ occurring in the definition of `holding’ u/s. 2(8) of the 1986 Act would include a Hindu Joint Family and thus the limit prescribed under Schedule II has to be seen in the light of holding of the Hindu Joint Family and not as holdings of individual coparcener. In the instant appeal, the appellants contended that in view of s. 2(22) and (11) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961, the expression `person’ would include individual coparceners constituting the Hindu Joint Family. =Dismissing the appeal, the Court HELD: 1. On appreciation of the records of the instant case and in view of s. 2(22) and (11) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961, the expressions `person’ and `family’ as contained in the Act of 1961 have no application to the facts and circumstances of the instant case. The object and purpose of enactment of the Act of 1961 is completely different from that of the Maharashtra Project Affected Persons Rehabilitation Act, 1986 which would be applicable to the instant case. The Legislature, while enacting the Act of 1986, incorporated the definition of expression `holding’ u/s. 2(8) and was fully conscious of the fact that there is a definition of expression `person’ in the Act of 1961, but despite the said fact, it did not incorporate the said definition of expression `person’ given in the Act of 1961. Since the expression `person’ is not defined in the Act of 1986, in order to ascertain the definition of the same, the provisions of the Bombay General Clauses Act, 1904 has to be referred to. [Para 14 15] [596-D-F-H] 2. Section 3(35) of the Bombay General Clauses Act, 1904 defines persons to “include any company or association or body of individuals, whether incorporated or not.” In that event, if the position and standard as enunciated in the legislation of the 1904 Act is adopted, it has to be held that the expression `person’ would include the body of individuals, meaning thereby, that the Hindu Joint Family is a body of individuals and is covered under the expression `person’ mentioned in Section 2(8) of the 1986 Act. [Para 16] [597-A-B] 3. Once the Hindu Joint Family is held to be a person, the limit prescribed in Schedule-II of the 1986 Act has to be considered in the light of the holding of Hindu Joint Family and not holding of individual coparceners constituting a Hindu Joint Family. Therefore, the findings and the conclusions arrived at by the High Court is upheld. [Para 17] [597-C-D] Gaya Din(Dead) through Lrs. and Ors. v. Hanuman Prasad (Dead) through Lrs. and Ors. (2001) 1 SCC 501 – held inapplicable. Case Law Reference: (2001) 1 SCC 501 held inapplicable. Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 546 of 2004. From the Judgment & Order dated 24.01.2002 of the High Court of Judicature of Bombay in Writ Petition No. 5720 of 2001. Ajay Majithia, Rajesh Kumar, Dr. Kailash Chand for the Appellants. Chinmoy Khaladkar, Sanjay Kharde, Asha G. Nair, Mukesh K. Giri for the Respondents.

REPORTABLE lIN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 546 OF 2004 Sudam Shankar Kshirsagar & Anr. ……. Appellants Versus State of Maharashtra & Ors. ……Respondents JUDGMENT Dr. Mukundakam Sharma, J. 1. The present petition is directed against the judgment and order dated 24.01.2002 passed by the Division Bench of … Continue reading

whether the deceased daughters can be treated as coparceners after the amendment of Hindu succession act“6. Devolution of interest in coparcenery property. – (1) On and   from  the   commencement   of   the   Hindu   Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, – (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son;  (c)  be  subject  to  the  same liabilities  in respect  of the  said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be6 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw deemed to include a reference to a daughter of a coparcener: Provided that  nothing contained in this  sub­section shall affect  or  invalidate  any  disposition  or  alienation  including any partition or  testamentary disposition  of property which had taken place     before the 20 th        day of December, 2004.”  

1 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 265 OF 2011 Sadashiv Sakharam Patil & Ors.  …Appellants Vs. Chandrakant Gopal Desale & Ors. …Respondents ALONGWITH APPEAL FROM ORDER NO. 274 OF 2011 M/s. Roma Builder Pvt. Ltd.  …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 518 OF 2011 M/s. Nikhil Construction …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 792 OF 2011 M/s.Darshan Enterprises  …Appellants Vs. Chandrakant Gopal Desale & Ors.  …Respondents Deepak Chitnis – Chiparikar & Co., for Appellants Mr. Sandesh Patil for Appellant in AO No.265/2011 Mr. P. Sakseria, Sr. Counsel a/w. Mr. Mayur Khandeparkar a/w.Mr. Ranjit Shetty a/w. Mr. Lucky Rai Indorkar, Mr. Aniket Nair i/b. M/s. Hariani & Co., for Respondent No.1 in AO.No.265/2011 AO No.274.2011, AO No.518.2011 & AO No.792/2011 Mr. R.S. Apte, Sr. Advocate a/w. Mr. G. Godre for Appellant in AO No.274/2011 & Respondent No.14 in AO NO.265/2011 Mr. Deepak Chitnis, Advocate for the Appellant in AO No.180.20112 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw for Respondent No.13 in AO No.265/2011. Ms.   Sharin   Shaikh   i/b.   M/s.   … Continue reading

Adjourning the matter, the Court HELD: 1.1. The claim of the appellant is restricted on the basis of the said purported Will. In case the Will propounded by the appellant is found to be not genuine and valid, her entire claim will have to be rejected and the property in question would revert back to the respondents. If, however, the aforesaid Will is found to be legal and valid, even in that event and as per the pleadings and the contentions of the respondents, the appellant may not be entitled to more than 1/3rd of the said property. These are the events which have arisen after delivery of the judgment by the High Court. Therefore, two issues arise for consideration at this stage, which are required to be determined and decided prior to entering into the respective claims of the parties. The first issue is as to whether the Will propounded by the appellant allegedly executed on 20.8.2001 and registered in the Office of the sub-Registrar on 29.8.2001, is a legal and valid document in the eyes of law. If the aforesaid issue is answered in favour of the appellant, the further question that is to be determined is as to whether the appellant, on the basis of the aforesaid Will, is entitled only to 1/3rd of the said area in terms of the Rules and Principles of Mahomedan Law. [Paras 24, 25, 26 and 27] 1.2. Along with the said issues which need to be determined and answered, there is another issue which arises for consideration, which is as to whether the appellant could claim to be a legal representative. Out of the said three issues raised herein, in so far as the question of entitlement of the appellant’s share is concerned, the same appears to be a question of law as it forms a part of the principles of Mahomedan Law. But the other two issues, namely, the status of the appellant and whether she would claim to be a legal representative along with the question as to whether the Will propounded by the appellant is legal and valid and how far the same could be relied upon, are disputed questions of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXII Rule 5 CPC. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the matter it is necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXII Rule 5 CPC. [Para 28] 1.3. The trial court is directed to take evidence on the two issues, namely: whether the appellant could claim to be a legal representative and whether or not the will propounded by the appellant, allegedly executed on 20.8.2001 and registered in the Office of the sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of law. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the Will propounded is legal and valid and how far the same could be relied upon. The trial court shall thereafter send back to this Court the records with the findings and the evidence that might be adduced and already on record. On completion of the aforesaid process, the trial court shall transmit the entire records with the findings in terms of this order to this Court, upon which, the appeal shall again be listed for hearing for further determination and orders. [Paras 30, 31] Kanhiya Singh Santok Singh and Ors. v. Kartar Singh, (2009) 5 SCC 155 – relied on. Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. , (2009) 6 SCC 160 – referred to. Case Law Reference: (2009) 6 SCC 160 referred to Para 21 (2009) 5 SCC 155 relied on Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7274 of 2010. From the Judgment and order dated 16.11.2005 of the High Court of Karnataka at Bangalore in RSA No. 578 of 2000. S.N. Bhat and Abhishek for the Appellant. D.N. Goburdhan for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7237 OF 2010 [Arising out of SLP(C) Nos. 5344 of 2006] Smt. Ajambi (Dead) By Lrs. .. Appellant Versus Roshanbi and Ors. .. Respondents JUDGMENT Dr. Mukundakam Sharma, J. 1. Leave granted. 2. This Special Leave Petition is directed against the judgment … Continue reading

Blog Stats

  • 2,891,076 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,906 other followers
Follow advocatemmmohan on WordPress.com