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Unauthorized Adjustments not valid – Defendant No. 1, the Hongkong & Shanghai Banking Corporation Ltd., a Company incorporated under the laws of Hong Kong, aggrieved by the judgment and decree dated 30th of June, 2004 passed by the Special Court (Trial of Offences relating to Transaction in Securities), Bombay in Suit No. 11 of 2002 decreeing the plaintiff’s suit for a sum of Rs. 18,59,71,808.22/- along with interest at the rate of 15% has preferred this appeal.= Plaintiff Canbank Financial Services Ltd., respondent no. 1 herein filed the suit seeking a decree directing defendant no. 1 to pay to the plaintiff a sum of Rs.33,13,42,781.62/- with further interest thereon at the rate of 24% per annum compounded quarterly from the date of the suit till realization. It is the assertion of the plaintiff that defendant no. 1 was not justified in adjusting the amount paid by the plaintiff for purchase of bonds towards transactions between defendant no. 1 and Canbank Mutual Fund. The plaintiff has alleged that the transaction between defendant no. 1 and Canbank Mutual Fund are totally unconnected with the transaction between plaintiff and defendant no. 1. Whether Defendant prove that the said pay order for Rs. 18,59,71,808.22 was issued by Plaintiffs on behalf of CMF as alleged in para 8 of Written Statement?” whether defendant no. 1 has established that the payment that was made by the plaintiff to it on 24th of June, 1991 was on behalf of the Canbank Mutual Fund? – It is the specific case of defendant no. 1 that the broker informed it that the plaintiff has made payment on behalf of Canbank Mutual Fund. However, the letter dated 25th of February, 1993 of the broker to defendant no. 1 shows that on 24th of June, 1991 the Coal India bonds were sold by defendant no. 1 to the plaintiff and not to Canbank Mutual Fund. From the aforesaid it is evident that defendant no. 1 has not been able to prove that payment was made by the plaintiff on behalf of Canbank Mutual Fund. The natural corollary thereof is that the payment was made by the plaintiff to defendant no. 1 to purchase the bonds. It is not the case of defendant no. 1 that it had delivered the bonds to the plaintiff. Therefore, we are in agreement with the reasoning and the conclusions arrived at by the trial court and find no reason to interfere with the same.

  published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40557  NON-REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5281 OF 2004     HONGKONG & SHANGHAI BANKING CORPN. LTD. APPELLANT VERSUS CANBANK FINANCIAL SERVICES LTD. & ANR. RESPONDENTS   JUDGMENT   CHANDRAMAULI KR. PRASAD,J.     Defendant No. 1, the Hongkong & Shanghai Banking Corporation … Continue reading

As per Hindu Law and Hindu Succession Act sec.6 – the property lies in the hands of father fell on him during family partition among his brothers, becomes as a joint family property after the birth of the plaintiff and as such, the father has no absolute right and title to dispose the entire property with out consent of plaintiff – so the documents not valid and not binding on the plaintiff = the property received by his father is ancestral property and, therefore, alienation of the same by him is null and void.= Whether the plaintiff is entitled to a decree for declaration to the effect that impugned release deed dt.28.5.2004 and mutation no.3365 entered and attested in lieu of impugned release deed and further two sale deeds dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110 and 3106 entered and attested on the basis of impugned two sale deeds and further revenue entries are wrong, illegal and not binding on the rights of the plaintiff and defendants no. 6 & 7?”= It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”= A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.- In the result, we allow this appeal, set aside the judgment and decree of the lower appellate court as affirmed by the High Court and restore that of the trial court with the liberty aforementioned. In the facts and circumstances of the case, there shall be no order as to costs.

published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40554 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5475 OF 2013 (@ SLP (C) No. 22388 of 2011) ROHIT CHAUHAN …APPELLANT VERSUS SURINDER SINGH & ORS. …RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. Sole plaintiff Rohit Chauhan is the appellant before us. His grandfather Budhu had three sons, namely, Gulab … Continue reading

M.V. ACT – INSURANCE CLAIMS = THE POSITION OF VEHICLES AT THE SCENE OF ACCIDENT AND THE CONTENT OF viscera WITH ALCOHOL ALONG WITH FOOD ON DECEASED STOMACH AT THE TIME OF ACCIDENT NEVER SUGGEST CONTRIBUTORY NEGLIGENCE, WHEN CHARGE SHEET WAS FILED AGAINST THE ACCUSED DUE TO RASH AND NEGLIGENCE ACCIDENT WAS OCCURRED = the police submitted a charge­ sheet (Ext.­A4) against the bus driver under Section 279, 337 and 304A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16th April, 1990 at 4.50P.M.- The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 25. Post Mortem report, Ext.­A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. 26. The aforesaid evidence, Ext.­A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.­B2, ‘Scene Mahazar’ and the Ext.­A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye­witness, , Ext.­A1(FIR), Ext.­A4(charge­sheet) and Ext.­B1( F.I. statement) are on record. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises. ; The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/­. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/­ is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/­ =) Rs.54,49,500/­. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/­ each towards love and affection of the two children i.e. Rs.2,00,000/­and a sum of Rs.1,00,000/­ towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/­. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact. We, accordingly, allow the appeals filed by the claimants and partly allow the appeals preferred by the Insurance Company, so far as it relates to the application of the multiplier is concerned. The impugned judgment dated 12th April, 2007 passed by the Division Bench of the Kerala High Court in M.F.A. Nos.1162 and 1298 of 2001 and the award passed by the Tribunal are modified to the extent above.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40491 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 4945­4946 OF 2013 (arising out of SLP(C)Nos.20557­20558 of 2007) JIJU KURUVILA & ORS. … APPELLANTS Versus KUNJUJAMMA MOHAN & ORS.     … RESPONDENTS WITH CIVIL APPEAL NO.  4947    OF 2013 (arising out of SLP(C)No.16078 of 2008) THE ORIENTAL INSURANCE CO. LTD. … APPELLANT Versus SMT. CHINNAMMA JOY AND ORS.     … RESPONDENTS CIVIL APPEAL NO.  4948  OF 2013 (arising out of SLP(C)No.15992 of 2008) ORIENTAL INSURANCE CO. LTD. … APPELLANT Versus SMT. CHINNAMMA JOY AND ORS.     … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Delay condoned. Leave granted. 1Page 2 2. These   appeals   are   directed   against   the judgment of the Division Bench of the Kerala High Court  dated 12th  April, 2007 in M.F.A. Nos. 1162 and 1298 of 2001(D)  whereby compensation awarded to   the   claimants   by … Continue reading

suit for partition of joint family properties = even suit items 1 and 2 though were also purchased in the name of the first defendant yet they were joint family properties and therefore, the plaintiffs were entitled to claim a share in all the three items of the suit schedule properties.= The trial Court while granting the relief in favour of the appellants, considered the oral evidence of P.W.1, the mother and Ex.A-17 in particular. The High Court while reversing the judgment of the Trial Court placed reliance upon the release deed executed by the first respondent in the year 1959 viz., Ex.A-3 and partition deed of the year 1973, which was entered into between the four plaintiffs in which document the first respondent affixed his signature. the release deed of the year 1959 viz. Ex.A-3 and the partition deed of the year 1973 viz., Ex.A-28, it was established that the first and second items of the suit scheduled properties which were purchased in the name of the first respondent were the exclusive properties of the first respondent and therefore, the appellants were not entitled for partition in those properties. whether there was total misreading of evidence by the High Court by not considering or referring to Ex.A-17 while interfering with the judgment of the Trial Court and whether legal principles of gift were established in regard to the first item of the suit schedule property.”; Section 17 of the Evidence Act reads as under: “S.17. Admission defined:- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” 24. As far as the principle to be applied in Section 17 is concerned, the Section as it reads is an admission, which constitutes a substantial piece of evidence, which can be relied upon for proving the veracity of the facts, incorporated therein. When once, the admission as noted in a statement either oral or documentary is found, then the whole onus would shift to the party who made such an admission and it will become an imperative duty on such party to explain it. In the absence of any satisfactory explanation, it will have to be presumed to be true. It is needless to state that an admission in order to be complete and to have the value and effect referred to therein, should be clear, certain and definite, without any ambiguity, vagueness or confusion. – “admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.” – when we consider the contents of Ex.A-17, which is in Tamil, is a letter written by the first respondent himself on 24.06.1974. The said letter was addressed to the third plaintiff Mr.Manickavasagam. The contents of the said letter read as under: “The second plaintiff Saravanamurthi, came to my house the day before yesterday at around 09.30 p.m. He stated that something should be immediately arranged, as regards the house properties. He also asked what is the justification in all the three house properties in my name. I told him that you can be called and some arrangement can be made. I am not able to explain everything in this letter. He was in a very rash mood and was behaving in an unruly manner. At one stage, I was driven to the position that he can do whatever he likes. At 10.00 clocks in the night, I told him what arrangement could be made. But he was not in a sane mood. However much I told him that it was not my fault in purchasing all the three properties in my name and that I am not keen to have all the three properties. I was terribly upset by his behavior. At one stage, I asked him to get out. While going out, he expressed that the relationship cannot be continued thereafter. About this you need not inform mother or murthi himself.” While examining the contents of the said letter, the Trial Court concluded that the three house properties, referred to therein, only related to the suit scheduled properties. Going by the statements made by the first respondent himself in the said letter Ex.A-17, it was explicit and apparent that the first respondent was fully aware that even though the properties were in his name, he was not responsible for purchasing the same in his name and that he was not interested in having all the three properties for himself.; The ingredients of Section 122 of the Transfer of Property Act relating to gifts were not shown to have been complied with in order to support the said claim. In fact, while considering the relevance of Ex.A-17 and its application to the case on hand, the Trial Court noted the contradictory statement of the first respondent made in his written statement, vis-à-vis the oral evidence. The Trial Court has specifically noted the funds, which were available with the first respondent pursuant to his father’s demise, which was to the tune of Rs.20,887.93/- and which was kept in deposit in two accounts in the name of the first respondent himself. One account was under Ex.A-25, which was a current account in which a sum of Rs.10,919.44/- was available and the other one was under Ex.A.26, which was a savings bank account, where a sum of Rs.9,968.49/- was available. Both put together a sum of Rs.20,887.93/- was available and therefore, even after the purchase of the third item of the suit schedule property, the first respondent had a further sum available with him. The trial Court has also noted that except the ipse dixit of D.W.2 and 3 that a sum of Rs.10,000/- was paid to the first respondent by way of gift at the time of marriage of the first respondent with his daughter, there was no other evidence to support and provide credence to the said version. Unfortunately, the Division Bench of the High Court completely omitted to examine the above material piece of evidence, which was considered in detail by the trial Court, while decreeing the suit. In the light of our above conclusions, the judgment of the Division Bench cannot be sustained. The appeal stands allowed and the judgment of the Division Bench is set aside and the judgment and decree of the Trial Court shall stand restored.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40476 Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1241 OF 2005 Vathsala Manickavasagam & Ors. …. Appellants VERSUS N. Ganesan & Anr. …. Respondents J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. This appeal is directed against the Division Bench judgment of … Continue reading

Damages to the standing crop +The question relating to the value of larger extent of agricultural land, if required to be determined with reference to price fixed for small residential plot, = “When the value of a large extent of agricultural land has to be determined with reference to the price fetched by sale of a small residential plot, it is necessary to make an appropriate deduction towards the development cost, to arrive at the value of the large tract of land. The deduction towards development cost may vary from 20% to 75% depending upon various factors. Even if the acquired lands have situational advantages, the minimum deduction from the market value of a small residential plot, to arrive at the market value of a larger agricultural land, in the usual course, will be in the range of 20% to 25%. In this case, the Collector has himself adopted a 25% deduction which has been affirmed by the Reference Court and the High Court. We, therefore, do not propose to alter it.” Therefore, it is clear that mere reliance made by a Court on sale deeds of smaller residential area for determination of market value of larger agricultural area, the same will not render the determination illegal until and unless it is shown that the determination was not proper. 20. In the instant case, the average value of the sale­deeds relied upon by the Reference Court (Ext.1 and Ext.1/b) was Rs. 401/­ at the time of acquisition. Therefore, as the sale­deeds were in relation to smaller plots, the deduction of 37% was made by the Reference Court and thereafter, by allowing appropriate 10% increase in the value of the land from the date of the sale deeds upto the date of Notification under Section 4 of the Act, the Reference Court arrived at a figure of Rs.250/­ per decimal. The High Court while arriving at figure of Rs. 100/­ per decimal considered only the fact that the sale deeds relied upon were in relation to smaller plots and those sale deeds(Ext.1 and Ext.1/b) were related to homestead land and hence fixed Rs. 10,000/­ per acre as compensation. It completely failed to consider the increase in price of land and the deduction made by the 9Page 10 High Court is nearly 75% which is not in accordance with law. we have no other alternative but to set aside the order passed by the High Court and restore the award passed by the Reference Court.-The respondents are directed to pay the appellant the compensation in terms of the award passed by the Reference Court after adjusting the amount already paid within three months. There shall be no separate order as to costs.

published in http://judis.nic.in/supremecourt/filename=40470 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5311 OF 2012 (arising out of SLP(C)No.34284 of 2011) AHSANUL HODA  … APPELLANT Versus STATE OF BIHAR     … RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This   appeal   has   been   filed   by   the   claimant­ appellant against the judgment and order of the Patna High   Court   dated   10.2.2011   by   which   the   High   Court reduced   the   compensation   awarded … Continue reading

HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses.= Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna AND OTHERS (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose AND OTHERS AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India AND ANOTHER (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni AND OTHERS AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab AND OTHERS v. Bhajan Kaur AND OTHERS 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma AND ANOTHER (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah AND ANOTHER 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector AND Etio AND OTHERS (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram AND Co. AND OTHERS etc. v. Union of India AND OTHERS (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. AND ANOTHER v. Union of India AND OTHERS (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi AND OTHERS v. Lal Chand AND ANOTHER (2006) 8 SCC 581, held inapplicable. Shyam Sunder AND OTHERS v. Ram Kumar AND ANOTHER (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg AND OTHERS v. Hotel Association of India AND OTHERS AIR 2008 SC 663, referred to. Bhe AND OTHERS v. The Magistrate, Khayelisha AND OTHERS (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment AND Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents J U D G M E N T S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the … Continue reading

Court Fees Act, 1870 – s. 7(iv)(c) and (v) – Court fee – Computation of – In suits for a declaratory decree and consequential benefits – Filing of civil suit – Prayer for declaration that sale deed not binding on co- parcenary and for joint possession and court fee paid u/s. 7(iv)(c) – Courts below holding that the prayer was to seek cancellation of sale deeds and thus, court fee to be paid on the sale consideration mentioned in sale deeds – On appeal, held: Prayer was not for cancellation of sale deed but for a declaration that sale deed not binding on co-parcenary and for joint possession – Plaintiff was non-executant of sale deed – Thus, court fee was computable u/s. 7(iv)(c) – Orders of courts below set aside. The question which arose for consideration in these appeals is as to what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not `binding on the co-parcenary’, and for the consequential relief of joint possession and injunction.= Allowing the appeals, the Court HELD: 1.1 Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. There is a difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance. In essence in both the cases parties may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If the executant of the deed seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If the non-executant is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Court Fees Act, 1870. But if the non-executant is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under section 7(iv)(c) of the Act. Section 7(iv)(c) of the Act provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of section 7. [Para 6] 1.2. In the instant case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “co- parcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds and therefore, court fee had to be paid on the sale consideration mentioned in the sale deeds. Thus, the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds are set aside and trial court is directed to calculate the court fee in accordance with section 7(iv)(c) read with section 7(v) of the Act. [Paras 7 and 8] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2811-2813 of 2010. From the Judgment AND Order dated 19.3.2007 order dated 11.2.2008 and 16.5.2008 passed by the High Court of Punjab and Haryana at Chandigarh in CR No. 1482/2007 and RA No. 35 CII/2007 in Civil Revision No. 1482/2007 and C.M. No. #9445-C-II/2008 in C.M.#7001-C-II/2008 in R.A. 35-C-II/2007 in Civil Reivision #1482/2007. Suhrid Singh appellant in person. Labh Singh Bhangu and Madhu Moolchandani for the Respondent.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2811-2813 OF 2010 [Arising out of SLP [C] Nos.6745-47/2009] Suhrid Singh @ Sardool Singh … Appellant Vs. Randhir Singh & Ors. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. The appellant filed a suit (Case No.381/2007) … Continue reading

specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as ‘Receipt’. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff’s case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff’s case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.

‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1648 OF 2006 DASHRATH KACHRU KAKDE … APPELLANT Versus VIKRAM S/O. DHONDU AWHALE …RESPONDENT (DECEASED) THROUGH LRs. O R D E R (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal, by special leave, is filed by the original defendant. The challenge is … Continue reading

Order 1 Rule 10 of CPC for impleadment as defendants in a suit for specific performance of contract being Suit No. 3426 of 1991 filed by plaintiff-Respondent No.1.= The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the Defendant is vitally interested in the litigation, where the transfer is of the entire interest of the Defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the Plaintiff. Hence, though the Plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case”= The appeal is allowed and the appellant added as party defendant to the suit in question, in terms of the signed judgment.

‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal NO. 1518 of 2013 (Arising out of Special Leave Petition (Civil) No. 24159 of 2009) Thomson Press (India) Ltd. …..Appellant (s) Vs. Nanak Builders & Investors P.Ltd. & Ors. …..Respondent(s) J U D G M E N T M.Y. EQBAL, J. Leave granted. … Continue reading

HINDU SUCCESSION ACT – KARNATAKA AMENDMENT IN RESPECT OF DAUGHTERS SHARE ON PAR WITH SONS = it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of Karnataka Act 23 of 1994.= if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order.- the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution.”

‘     ITEM NO.4 COURT NO.3 SECTION IVA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil)……/2013 CC 9253-9255/2013 (From the judgement and order dated 11/01/2010 in RFA No.935/2003,RFA No.1012/2003 dated 06/01/2012 in RP … Continue reading

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