advocatemmmohan
just another law knowledge bank
munsif
Hindu Law-Gift of ancestral property by the father in favour of his daughters through registered settlement deed-Father later claiming that the settlement deed got executed by misrepresentation and fraud-Plea by father that his signature was obtained as a witness to a sale deed and not for execution of settlement deed and that he has no capacity to gift to his daughters the Joint family property-Suit by daughters for permanent injunction for restraining the father from interfering with peaceful possession-Trial Court dismissed the suit-Confirmed by First Appellate Court and High Court Held, on facts and evidence, the gift was not vitiated by fraud and misrepresentation-Further, father has capacity to gift ancestral property to daughters to a reasonable extent. The respondent, by a registered settlement deed, settled the suit property to his appellant-daughters out of natural love and affection for them. After 5 years, the respondent asked the appellants to vacate the property and tried to trespass into the property. The appellants filed a suit for permanent injunction before trial court for restraining the respondent and his associates from interfering with the appellant’s peaceful possession and enjoyment of the suit property. The respond-ent resisted the suit contending that the suit property was an ancestral property; that settlement deed was not executed in favour of the respondents; that the appellants misrepresented the respondent taking advantage of his addiction to liquor for signing the sale deed of the property purchased by the appellants as an attesting witness and instead got the settlement deed signed. The trial court dismissed the suit of the appellants holding that the settlement deed was got executed by misrepresentation and that the respondent had no power to make a gift of a part of his ancestral properties in favour of his daughters. This was confirmed by the first appellate court and the High Court. In appeal, the appellants contended that the finding of fact by the lower courts regarding execution of settlement deed is vitiated due to misreading of the statement of one of the attesting witnesses: that the respondent, being the karta of the Joint Hindu family had the authority to make a gift of ancestral immoveable property to a reasonable extent to his daughters. The respondent contended that he had no authority to gift the only ancestral property possessed by the family in favour of his daughters. Citation: 2004 AIR 1284,2003(6 )Suppl.SCR605 ,2004(1 )SCC295 ,2003(10 )SCALE600 ,2003(10 )JT289= Allowing the appeal, the Court HELD : 1.1. Finding recorded by the trial court clearly shows that the court misread and misconstrued the testimony of the attesting witness PW 2. In his deposition, PW 2 has clearly stated that he was invited by the respondent to be a witness. He has nowhere stated that the respondent was taken for affixing signatures as witness. If respond-ent was to be a witness, then there was no need to ask PW2 and other witness to accompany the respondent or for them to sign the document. PW 2 also deposed that the respondent affixed his signatures on the settlement deed (Ex Al) after reading the same, that he has signed Exhibit Al as a witness and that he knew the respondent. Suggestion put to him that signatures of the respondent on Exhibit Al were obtained by threat was denied. The trial court did not refer to this part of testimony of PW 2 at all. In the cross- examination, PW 2 has stated that the fact that the respondent had invited him for signing as a witness has been read to him as if PW 2 had stated that the respondent was taken for affixing signatures as a witness to some documents on the date when the deed of settlement Exhibit Al was executed. This is a clear misreading of the testimony of PW 2. The trial court also failed to note that the evidence of respondent lacked total credibility especially in the light of his conduct in denying his signature on the settlement deed, vakalatnama as well as on the summons served on him. Projection made by the respondent in his testimony that the appellants taking advantage of the fact that he was a drunkard got the settlement deed signed fraudulently cannot be accepted. Respondent took no steps to get the settlement deed cancelled though, the appellants had been living in the house for five years after the execution of the settlement deed. In his statement he does not say that he did not know about the execution of the settlement deed. Plea taken by him that he was taken to the Sub-Registrar’s office to be a witness to a sale deed by his son-in-law cannot be accepted as it has not been proved on record that the respondent’s son-in-law had in fact purchased any house site. Findings recorded by the trial court and upheld by the First appellate court and the High Court based on misreading of evidence are liable to be set aside. The findings recorded on misreading of evidence being perverse cannot be sustained by law. [612-E-H; 613-A-D] 2.1. A father can make a gift of ancestral immoveable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his, daughter at the time of her marriage or even long after her marriage. [617-E-F] 2.2. Question as to whether a particular gift is within reasonable limits or not has to be judged according to the status of the family at the time of making a gift, the extent of the immoveable property owned by the family and the extent of property gifted. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family. The question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property held by the family. Simply because the gifted property is a house, it cannot be held that the gift made was not within the reasonable limits. It is basically a question of fact. If on facts, it is found that the gift was not within reasonable limits, such a gift would not be upheld. It was for the respondent to plead and prove that the gift made by the father was excessive and unreasonable keeping in view the total holding of the family. In the absence of any pleadings or proof on these points, it cannot be held that the gift made in this case was not within the reasonable limits of the property held by the family. The respondent has failed to plead and prove that the gift made was to unreasonable extent keeping in view, the total holding of the family. The first appellate court and the High Court thus erred in non-suiting the appellants on this account. [617-G-H; 618-A-E] 2.3. The respondent had the capacity to make a gift to a reasonable extent of ancestral immoveable property in favour of his daughters. The gift was not vitiated by fraud of misrepresentation. The appellants are held to be the absolute owners or the suit property and the respondent is injuncted from interfering with the peaceful possession and enjoyment of the suit property by the appellant perpetually. [618-F-G] Kamala Devi v. Bachulal Gupta, [1957] SCR 452; Guramma Bhratar Chanbasappa Deshmukh AND ANOTHER v. Malappa, [1964] 4 SCR 497 and Ammathayee Ammal AND ANOTHER v. Kumaresan AND Ors., [1967] 1 SCR 353, referred to. Anivillah Sundararamaya v. Cherla Seethamma AND Ors., (1911) 21 MLJ 695; Pugalila Vettorammal AND ANOTHER v. Vettor Goundan, (1912) MLJ 321; Devalaktuni Sithamahalakshmamma AND Ors. v. Pamulpati Kotayya AND Ors., AIR (1936) Madras 825; Karuppa Gounder AND Ors. v. Palaniammal AND Ors., (1963) 1 MLJ 86; The Commissioner of Gift Tax v. Tej Nath, (1972) PLR (74) 1 and Tara Sabuani v. Raghunath, AIR (1963) Orissa 59, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16757 of 1996.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7 CASE NO.: Appeal (civil) 16757 of 1996 PETITIONER: R. Kuppayee & Anr. RESPONDENT: Raja Gounder DATE OF JUDGMENT: 10/12/2003 BENCH: R.C. Lahoti & Ashok Bhan. JUDGMENT: J U D G M E N T BHAN, J. Aggrieved by the judgment and decree passed by the courts … Continue reading
the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’) =In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. =(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2012 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1317 of 1995 1.M.S.Hohammed Jahabar Kadiri (Deceased) 2.Ummal Bajira 3.M.J.K.Haja Shaik Alloudeen 4.Mumtaz Begam … Petitioners P2 to P4 as legal heirs of the deceased 1st petitioner vide order of this Court, dated 24.12.2003 made in CMP.14127/2003 … Continue reading
Scope of or. 23, rule 3 A of C.P.C.= whether the suit filed by the appellant was not maintainable being barred in terms of Order XXIII Rule 3-A of the Code of Civil Procedure= It is also well settled that under section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 776 OF 2012 (Arising out of S.L.P(Civil )No.6632 of 2006) HORIL … APPELLANT VERSUS KESHAV & ANR. … RESPONDENTS J U D G M E N T Aftab Alam, J. 1. Leave granted. 2. This appeal is directed against the judgment and … Continue reading
Oudh Lands Act, 1876-Sections 7(b) & 8-U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957-Right of pre-emption-Property brought within the municipal limits of a town-Transfer of the property through sale-Claim of the right being a co-sharer of the property- Availability of-Held, the customary right of pre-emption existed for a long time and is available in view of recognition by the courts-On facts the right existed with the co- sharer on the date of the transfer of the property-Right not ceased to exist after the latter enactment. One S transferred the suit property to his wife in lieu of dower debt. The property is situated in a village. A part of the village was included within municipal limits of a town. She sold the property in 1951 to one M, who is the predecessor of respondent Appellant filed a suit before trial court claiming a right of pre-emption on the property being a co-sharer under the provisions of the Oudhs Land Act, 1876. The trial court decreed the suit holding that the right of pre-emption existed with the appellant even after the property is included within the municipal limits. Appellate Court dismissed the appeal of the respondent on the basis of a finding of Commissioner that the property was within the municipal limits on the date of the transfer of the property. High Court allowed the second appeal of the respondent holding that the custom relating to pre-emption was not available in that town under the Act and that the appellant could not prove the right on the date of transfer. Hence the appeal. The respondent contended that the appellant failed to produce evidence to show that the customary right of pre-emption existed on the date of transfer of the property; that the appellant is not a co-sharer of the property and that after the enactment of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957, the right of pre-emption ceased to exist =Allowing the appeal, the Court HELD: 1.1 It is the burden of the respondent to show that the customary right of pre-emption was either abandoned or discontinued and was not continuing on the date of the transfer of the suit property in view of the recognition of the customary right of pre-emption of a co-sharer in respect of town land by the courts. Judicial decisions recognising custom are relevant and admissible notwithstanding that they are not inter parties and such evidence is the most satisfactory evidence. [836-F-G] 1.2. The view of the High Court that there was complete transformation in the social system prevailing in cities is contrary to the recognition by the courts of such customary right in respect of town land. The finding of the High Court that there is no evidence that the custom was a continuing one is erroneous since this custom was prevalent in the town for a long period. Further there was no evidence from the side of the respondent that this custom was discontinued at any point of time. [837-D-E] Abdul Alim and Ors. v. Hayat Mohammad and Ors., AIR 33 (1946) Oudh 188, distinguished. 1.3. The appellant is a co-sharer in view of the finding by the lower courts. The contention of the respondent that the right of pre-emption ceased to exist after the enactment of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957 was not urged either before the High Court or before the lower courts. Further, on perusal of the Act, it is not acceptable that the customary right of pre-emption ceased to exist in the area. Hence the appellant, being a co-sharer, has acquired a right of pre- emption over the suit property. [837-G-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 661 of 1997 =, 2002(1 )SCR833 , 2002(2 )SCC652 , 2002(2 )SCALE23 , 2002(2 )JT1
CASE NO.: Appeal (civil) 661 of 1997 PETITIONER: FAZLE RAB Vs. RESPONDENT: MOHD. YAKEEN DATE OF JUDGMENT: 05/02/2002 BENCH: Syed Shah Mohammed Quadri & S.N. Phukan JUDGMENT: Phukan, J. This appeal arising out of judgment of the High Court of Judicature at Allahabad is by the plaintiff. The parties shall be referred to as arrayed … Continue reading
REVIEW PETITION-Scope of Error Apparent-Civil Procedure Code-Section 114, Order XLVII Rule 1 and Order II Rule 2-Review of the decision rendered by High Court in Second Appeal-Parameters required for review-Owner of suit property orally agreeing to sell suit property to appellant-Possession of property delivered to appellant on his making part payment-Appellant filing Suit No. 201/85 for protection of his possession of suit property-Appellant filing another Suit No. 1 of 1986 for specific performance of agreement for sale-During pendency of this suit, Owner executing a sale deed in favour of respondent-Appellant filing Title Suit No. 2 of 1987 for cancellation of said sale deed-Trial Court decreeing this suit and High Court upholding the decree-Subsequently, High Court entertaining and allowing a review application-Held, High Court erred in accepting the prayer for review as the question whether 1985 suit was hit by O II R 2 is not relevant to the 1987 suit-High Court has erroneously held about infraction of O II R 2-No mistake or error apparent on record found to justify entertaining review petition. The owner of the suit property entered into an oral agreement in 1982 with appellant for sale of suit property. Appellant paid part of the sale consideration. Possession of the suit property was handed over to the appellant with a promise that a sale deed would be executed in his favour within three years. Appellant paid the balance consideration and asked the owner to execute the registered sale deed in his favour. In view of threatened dispossession, the appellant with a view to protect his possession, filed Title Suit No. 201/1985. In this plaint, he exclusively reserved his right to file another suit for specific performance of sale agreement. He filed another suit No. 1 of 1986 praying for execution of sale deed in his favour. During pendency of this suit, the owner executed a sale deed in favour of respondent. Appellant filed Title Suit No. 2 of 1987 for cancellation of said sale deed. The said suit was decreed. Appeal filed against the said decree was allowed. The High Court allowed the second appeal restoring decree of lower Court. Respondent filed a review petition which was allowed. Appellant came in appeal to this Court. =Allowing the appeal, the Court HELD : 1. A perusal of Order XLVII, Rule 1 shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. [94-b-c; 92-f-g, h] M/s Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, AIR (1964) SC 1372; Meera Bhanja v. Smt. Nirmala Kumari Choudhary, AIR (1995) SC 455; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR (1979) SC 1047; Shivdeo Singh v. State of Punjab, AIR (1963) SC 1908; Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Triuymale, AIR (1960) SC 137 and Parsion Devi v. Sumiri Devi, [1997] 8 SCC 715, relied upon. Panduranga Dhondi Chougule v. Maruti Hari Jadhav, AIR (1966) SC 153, referred to. 2. The High Court had clearly fallen in error in accepting the prayer for review. First, the crucial question which according to the High Court was necessary to be adjudicated was question whether the Title Suit No. 201 of 1985 was barred by the provisions of Order II Rule 2 CPC. This question arose in Title Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave under Order II Rule 2 CPC was made in the plaint in Title Suit No. 201 of 1985. The claim of oral agreement dated 19.08.1982 is mentioned in para 7 of the plaint, and at the end of the plaint it has been noted that right to institute suit for specific performance was reserved. That being so the High Court has erroneously held about infraction of order II Rule 2 CPC. This was not a case where Order II of Rule 2 CPC has any application. [96-b-d] A.K. Ganguli, Ms. B. Basak and Chanchal Kumar Ganguli for the Appellant. Shib Shankar Sirkar, P.K. Chakravarty and Apu Banik In-Person (on behalf of Mrs. Usha Rani Banik) for the Respondents.
CASE NO.: Appeal (civil) 7948 of 2004 PETITIONER: Haridas Das RESPONDENT: Smt. Usha Rani Banik & Ors. DATE OF JUDGMENT: 21/03/2006 BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE JUDGMENT: J U D G M E N T ARIJIT PASAYAT, J. Challenge in this appeal is to the order passed by a learned Single Judge of the … Continue reading
advocatemmmohan 