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discharge of accused =Though the name of the petitioner is mentioned in the first information report, no specific overt act is attributed against him in the complaint. Further, the statements of the witnesses recorded by the Investigating Officer do not disclose that the petitioner was present either at the scene of occurrence or he participated in the crime, as rightly contended by the learned counsel for the petitioner. In such a situation, this Court is of the view that pending of the case against the petitioner amounts to abuse of process of law.

HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.2275 of 2011   ORDER: This Criminal Revision Case is filed by the petitioner-accused No.1, under Sections 397 and 401 of Cr.P.C., against the order dated 17.10.2011 made in Crl.M.P.No.35 of 2011 in S.C.No.147 of 2011 on the file of the III Addl. Assistant Sessions Judge, Kakinada, … Continue reading

Copyright Act, 1957 – ss.55, 62(1) – Trade Marks Act, 1947 – Two suits having different cause of action – Maintainability of – Held: Not maintainable – Composite suit of infringement of copyright and passing off would thus not lie in the same forum – Code of Civil Procedure, 1908 – O.2 r.3. The question which arose for consideration in the present appeal is whether the High Court was right in holding that the composite suit of infringement of copyright and passing off would not lie in the same forum and that the relief for passing off is covered by decision of Supreme Court in *Dhodha House Case. =Dismissing the appeal, the Court HELD: 1.1. Sub-section(1) of s.55 of Copyright Act, 1957 provides for the remedies in terms whereof the plaintiff shall be entitled to all reliefs by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. It must be read as `ejusdem generis’. It must take its colour from the words, `any proceeding’ namely the right to obtain a decree by way of injunction, decree for damages, accounts or other incidental reliefs which can be granted by a civil court. Such a provision can be found in the Code of Civil Procedure also, namely Order VI Rule 7 thereof. It is, therefore, correct to read the word “as are or may be conferred by law’ to mean, any other law, violation whereof although would give rise to separate and distinct cause of action. Under the Code, claims arising under a statutes governing substantive procedural law, a number of remedies may be combined. The Court may grant an order of injunction even in a passing off action. It is trite that where the court has the jurisdiction/power to adjudicate, it will necessarily have the incidental power therefor. It may, however, be different if the Court may have exercised a power which is not provided for as a supplemental proceeding. Thus, whereas an incidental power is inherent in the court, a supplemental power may also be exercised, keeping in view the ultimate relief which may be granted by it. [Paras 23, 24] [666-B-G] 1.2. If a person is found to be guilty of violation of copyright he will be bound to pay damages. For the purpose of quantification of damages, taking of the accounts may be necessary and it is in this behalf the Parliament thought it fit to use the word “otherwise”. Thus the power conferred by law within the meaning of sub-section(1) of Section 55 of 1957 Act qualifies the power of the court to grant remedies as envisaged thereunder if any other cause of action arose under a different Act. An action for passing off is common law right but the same does not determine the jurisdiction of the court. For exercising such jurisdiction, the provisions of the Code would be applicable. 1957 Act being a special law would, thus, prevail over the general law, viz., the Code. [Para 25] [667-A,B,C] Exphar Sa & Anr.v. Eupharma Laboratories Ltd.& Anr.(2004) 3 SCC 688 – held inapplicable. State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26 – relied on. 2. There cannot be any doubt whatsoever that the Parliament having inserted sub-section(2) in section 62 of the 1957 Act, the jurisdiction of the Court thereunder would be wider than the one under Section 20 of the Code. If the impediment is sought to be removed by inserting an incidental provision, there cannot be any doubt the court could be entitled to pass an interim order, but the same cannot be extended to a cause of action which is founded on separate set facts as also rights and liabilities of a party under a different Act. [Paras 27, 28] [668-A,B,D] 3. A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in *Dhoda House but it never meant that two suits having different causes of actions can be clubbed together as a composite suit. [Para 29] [669-A,B,C] *Dhoda House v. S.K. Maingi (2006) 9 SCC 41 – distinguished. Surendra Kumar Maingi v. M/s. Dhodha House AIR (1998) Allahabad 43; Sakri Vasu v. state of U.P. and Ors. (2008) 2 SCC 409 and Hindustan Lever Ltd. v. Ashok Vishnu Kate (1995) 6 SCC 326 – referred to. Fali S. Nariman, Praveen Anand, Hari Shankar K., Subhash Sharma, Sagar Chandra, Abhishta Kumbhat, Vikas Singh Jangra for the Appellant. Shailen Bhatia and Balraj Dewan for the Respondents.=2008 AIR 3123, 2008(9 )SCR652 , , 2008(8 )SCALE385 ,

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3637 OF 2008 (Arising out of SLP (C) No.20941 of 2006) Dabur India Ltd. … Appellant Versus K.R. Industries … Respondent JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Appellant is a manufacturer of a product known as `Dabur Red Tooth Powder’ … Continue reading

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

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

Consumer Protection Act, 1986: Medical Negligence: Deficiency in service – Doctor performing radical surgery without obtaining consent from patient resulting in removal of her reproductive organs – Compensation – Complaint rejected by National Consumer Commission – Correctness of – Held: Right of patient with regard to his/her body inviolable – It would be unreasonable for a doctor to start particular treatment/surgery without the consent of patient unless it was considered necessary to save life/preserve health of the patient – Consent of patient for diagnostic procedure/surgery cannot be construed as permission to perform therapeutic surgery – Appellant-victim admitted in the clinic of respondent only for diagnostic purposes – Before the victim regained consciousness, radical surgery performed resulting in removal of her uterus and ovaries – Under the circumstances, it cannot be said that she was informed before performing the surgery – When the patient was still at the diagnosis state, her mother’s consent for radical surgery was no consent in the eyes of law – Moreover, consent by mother cannot be treated as valid/real consent – National Commission failed to notice that the question was not about the correctness of the decision to remove uterus and ovaries but failure to obtain consent for removal of the organs – Laparoscopic examination revealed that the victim was suffering from endometriosis – It could be treated either by conservative treatment or by hysterectomy – Moreover, appropriateness of treatment procedure does not make the treatment legal in the absence of consent therefor – Performance of such surgery without consent of the patient was an unauthorized invasion and interference with the body of the victim, hence, a tortuous act of assault and battery amounting to deficiency in service – But, in view of mitigating circumstances, interest of justice would be served by denying the respondent fee charged for surgery and by granting compensation of Rs.25,000/- to victim for unauthorizedly performing surgery – Tort – Battery – Negligence – Compensation. Medical Profession – Catch in all clauses – Scope of. Words and Phrases: `consent’, `real consent’ and `unfound consent’ – Meaning of. Appellant, an unmarried woman, aged 44 years visited the clinic of first respondent for an ultrasound test. The test was conducted and, on the basis of the ultrasound report, the respondent allegedly informed her that she was suffering from fibroids and for further confirmation a laproscopic test was required to be conducted. On the next day, when she went to the clinic for a diagnostic laproscopy, allegedly her signatures on blank printed forms were obtained by an Assistant doctor of respondent without giving her opportunity to read the contents. When she was under general anesthesia, respondent rushed out of the operation theater and told her aged mother that the patient had started bleeding profusely and in order to save her life, extensive surgery need to be performed and her signatures were obtained on some papers without waiting the appellant to regain consciousness and radical surgery was performed on her, resulting in removal of her reproductive organs. When she protested, the respondent rudely responded. According to the appellant, she was going to marry within a month, therefore, she would have refused consent for removal of her reproductive organs and would have opted for constructive treatment, had she been informed about the surgery. Appellant lodged a complaint in the Police Station against the respondent for their negligence and unauthorizedly removing her reproductive organs. The appellant also filed a complaint before the National Consumer Commission claiming a compensation of Rs. 25 lakhs from the respondent for negligently treating her resulting in loss of her reproductive organs and consequential loss of opportunity to become a mother, for diminished matrimonial prospects, for physical injury resulting in the loss of vital body organs and irreversible permanent damage, for pain, suffering emotional stress and trauma, and for decline in the health and increasing vulnerability to health hazards. The complaint was dismissed by the Commission. Hence the present appeal. The questions which arose for determination in this appeal were as to whether informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs; as to whether consent given for diagnostic surgery could be construed as consent for performing additional/further surgical procedure, either as conservative treatment or as radical treatment, without the specific consent for such additional or further surgery; as to whether there was consent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo-oopherectomy performed by the respondent; as to whether the respondent had falsely invented a case that appellant was suffering from endometriosis to explain the unauthorized and unwarranted removal of uterus and ovaries; and as to whether such radical surgery was either to cover-up negligence in conducting diagnostic laparoscopy or to claim a higher fee and also even if appellant was suffering from endometriosis; as to whether the respondent ought to have resorted to conservative treatment/surgery instead of performing radical surgery; and as to whether the Respondent is guilty of the tortuous act of negligence/battery amounting to deficiency in service, and consequently liable to pay damages to the appellant. -Allowing the appeal, the Court HELD: 1.1 Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. (Para – 14) [742-F] 1.2 There is, however, a significant difference in the nature of express consent of the patient, known as ‘real consent’ in UK and as ‘informed consent’ in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and ‘real’ when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of ‘informed consent’ developed by American courts, while retaining the basic requirements consent, shifts the emphasis to the doctor’s duty to disclose the necessary information to the patient to secure his consent. (Para – 14) [742-G & H; 743-A & B] Taber’s Cyclopedic Medical Dictionary and Principles of Medical Law published by Oxford University Press — Second Edition, edited by Andrew Grubb, Page 133 – referred to. Canterbury v. Spence – 1972 [464] Federal Reporter 2d. 772; Schoendorff vs. Society of New York Hospital – (1914) 211 NY 125: and Re : F. 1989(2) All ER 545 – referred to. 1.3 The principle of necessity by which the doctor is permitted to perform further or additional procedure (unauthorized) is restricted to cases where the patient is temporarily incompetent (being unconscious), to permit the procedure delaying of which would be unreasonable because of the imminent danger to the life or health of the patient. (Para -16) [746-B & C] Murray vs. McMurchy – 1949 (2) DLR 442 and Marshell vs. Curry – 1933 (3) DLR 260 – referred to. 1.4 Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient. (Para – 17) [746-F & G] 2.1 In Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations). Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient. (Para – 19) [748-D, E & F] Bowater v. Rowley Regis Corporation – [1944] 1 KB 476 and Salgo vs. Leland Stanford 154 Cal. App. 2d.560 (1957) – referred to. 2.2 A risk is material ‘when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy’. The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions : (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient. The stringent standards, as above, regarding disclosure laid down in Canterbury, as necessary to secure an informed consent of the patient, was not accepted in the English courts. In England, standard applicable is popularly known as the Bolam Test as laid down in Bolam v. Friern Hospital Management Committee.* (Paras – 21 & 22) [750-H; 751-A, B & D] *Bolam v. Friern Hospital Management Committee – [1957] 2 All.E.R. 118; Hunter v. Hanley (1955 SC 200) and Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1 All ER 643 – referred to. 2.3 In India, Bolam test has broadly been accepted as the general rule. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance. (Para – 25, 26) [755-G; 757-F] Achutrao Haribhau Khodwa vs. State of Maharastra – 1996 (2) SCC 634, Vinitha Ashok vs. Lakshmi Hospital – 2001 (8) SCC 731 and Indian Medical Association vs. V. P. Shantha – 1995 (6) SCC 651 – relied on. 3.1 Of course, some doctors, both in private practice or in government service, look at patients not as persons who should be relieved from pain and suffering by prompt and proper treatment at an affordable cost, but as potential income-providers/customers who can be exploited by prolonged or radical diagnostic and treatment procedures. It is this minority who bring a bad name to the entire profession. (Para – 28) [758-F & G] 3.2 Every Doctor wants to be a specialist. The proliferation of specialists and super specialists, have exhausted many a patient both financially and physically, by having to move from doctor to doctor, in search of the appropriate specialist who can identify the problem and provide treatment. What used to be competent treatment by one General Practitioner has now become multi-pronged treatment by several specialists. (Para – 29) [759-C & D] 4.1 Law stepping in to provide remedy for negligence or deficiency in service by medical practitioners, has its own twin adverse effects. More and more private doctors and hospitals have, of necessity, started playing it safe, by subjecting or requiring the patients to undergo various costly diagnostic procedures and tests to avoid any allegations of negligence, even though they might have already identified the ailment with reference to the symptoms and medical history with 90% certainly, by their knowledge and experience. (Para – 29) [759-E & F] 4.2 More and more doctors particularly surgeons in private practice are forced to cover themselves by taking out insurance, the cost of which is also ultimately passed on to the patient, by way of a higher fee. As a consequence, it is now common that a comparatively simple ailment, which earlier used to be treated at the cost of a few rupees by consulting a single doctor, requires an expense of several hundred or thousands on account of four factors : (i) commercialization of medical treatment; (ii) increase in specialists as contrasted from general practitioners and the need for consulting more than one doctor; (iii) varied diagnostic and treatment procedures at high cost; and (iv) need for doctors to have insurance cover. The obvious, may be na=2008 AIR 1385, 2008(1 )SCR719 , 2008(2 )SCC1 , 2008(1 )SCALE442 , 2008(1 )JT399 =2008 AIR 1385, 2008(1 )SCR719 , 2008(2 )SCC1 , 2008(1 )SCALE442 , 2008(1 )JT399

  Image via Wikipedia CASE NO.:   Appeal (civil) 1949 of 2004 PETITIONER:Samira Kohli RESPONDENT:Dr. Prabha Manchanda & Anr. DATE OF JUDGMENT: 16/01/2008 BENCH:B. N. Agarwal, P. P. Naolekar & R. V. Raveendran JUDGMENT:J U D G M E N T RAVEENDRAN, J. This appeal is filed against the order dated 19.11.2003 passed by the … Continue reading

Indian Succession Act, 1925; Ss. 2(f), 2(h), 63, 211, 212, 213, 214, 218, 219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: Testator bequeathing property in dispute to his son from third wife ignoring other legal heirs-Grant of probate/Letter of Administration-Suit for partition of the property filed by other legal heirs-Agreements to sell the property in dispute entered into between the testator and vendee- Execution thereof by the executor-son after death of his father/testator- Revocation of probate on ground of non-citation-Sale transactions-Validity of-Held: Agreement to sell the property executed and certain amount as part consideration received by testator himself during his life time-Testator had strained relations with his second wife and sons but had cordial relations with his third wife and son-Testator bequeathed his properties to his son from third wife out of love and affection, and appointed the son as constituted attorney for negotiations and selling of the property-No abnormality found in testator appointing one of his sons as constituted attorney-Trial Court failed to take into account the proved preponderatory circumstances but was influenced by unconsequential matters in holding the will as not genuine- Grant of Probate establishes the genuineness of the will-Grantee entitled to convey the title-If propounder did not take appropriate steps by mistake to notify his heirs before obtaining probate, third party/purchaser, if acted bonafidely, not answerable to the mistake committed by the grantee-Since Vendees invested huge amount to free the suit premises from requisition, acquisition and other encumbrances, they were bound to expedite the sale after grant of probate-Since partition suit filed by other legal heirs, sons from second wife of the testator, and the suit premises got demolished and a new building constructed thereon, it shows that other legal heirs also had knowledge of these events-They knowingly allowed the executor of the will to represent himself as owner of the suit property-Hence, Vendee is bonafide purchaser for value-Indian Evidence Act, 1872-Section 68. Effect of affidavit and counter affidavit on the genuineness of the will- Held: Initially mother of the executor alleged the will as forged in terms of affidavit filed by her at an interim stage of the proceedings, she rectified the earlier statement by supporting the genuineness of contents and signatures of testator on the will by filing another affidavit-These evidence not shaken- Hence, alleged suspicious circumstances stand cleared. Revocation of grant-Circumstances-Held: Liable to be revoked if obtained fraudulently-Probate Court revoked the grant on ground of non- citation- Since the executor of the will deposed that he could not cite his two step sisters due to mis-conception and not on account of fraud, Courts below erred in concluding that the probate was obtained by the executor fraudulently. Constitution of India, 1950; Article 136-Scope of-Discussed. Transfer of Property Act-Section 41-Applicability of-Discussed. Words and Phrases: `Executor’ and ` administrator’-Distinction between. A partition suit was filed by the legal heirs, sons of the deceased/ testator, claiming their share in the properties. The deceased had three wives (One of whom died during his life time) and nine children. He was living along with his third wife (defendant No.l) and son (defendant No.2) since he was having strained relations with his second wife and other children. Defendant No.2 contested the suit relying on several documentary evidence including the registered Will made by his father during his life time, bequeathing the disputed properties in his favour. The disputed property was transferred by defendant No.2 in favour of the appellant/ Vendee (defendant No.14 in the suit). Subsequently the property was transferred by the appellant in favour of defendant Nos. 15 to 20. Trial Court decreed the suit holding that defendant No.14 was not bonafide purchaser since the agreements (Ex.A/1 and ExA/2) for sale of the disputed properties were executed by defendant No.2 as constituted attorney when his father, owner of the property was alive; that the probate was obtained by defendant No.2 without service of the citations on his step sisters; that the suit for specific performance filed by the Vendee was settled in haste as the transfer deed (Ex.A/8) was executed by defendant No.2 even without receiving the total consideration amount from the vendee; and that the property was further sold to defendant Nos. 15 to 20 even after revocation of the grant of probate. The order of the Trial Court was affirmed by the High Court. Hence the present appeals. It was contended by the appellants that although Ex.A/1 and Ex. A/ 2 were executed by defendant No.2 as constituted attorney of the deceased, certain amount was received by the deceased from defendant No.14 as evidenced by receipts Ex.A/3 and Ex/A/4, which establish that the deceased during his life time had intended to sell the suit property. Thus, Ex.A/1 was binding on him as also on his heirs; that since Ex.A/8 was executed pursuant to the agreements for sale of the properties, Ex.A/1, Ex.A/2 and the probate, it was binding on the estate of the deceased; that it was not open to the plaintiffs/other legal heirs to impugn transfer deed, Ex.A/8, as fictitious or fraudulent as they had acquiesced and allowed the suit property to be freed from encumbrances by the vendees; that Ex.A/8 was entered into only after thorough search of the title deeds and the documents, including the probate; that defendant No.14 had paid the balance consideration amount to defendant No.2 who was the executor under the will; that in terms of the order of the Court defendant No.2 was brought on record as the executor under the will on demise of his father, the testator; that the second wife of the deceased was aware of defendant No.2 being appointed as an executor; that the probate Court has revoked the grant only on the ground of non- citation which was admitted by PW1 in his evidence; that the revocation cannot annul the impugned disposition which was effected during the period when probate was in existence; that in the absence of allegation of fraud or collusion against defendant No.14, both the Courts below erred in holding that defendant No.14 was not at arms length to defendant No.2, since fraud and collusion have to be alleged and proved; and that defendant No.14 had completed the sale only after the grant of probate. Thus, defendant No.14 was a bona fide purchaser and since defendants Nos.15 to 20 had derived title from defendant No.14, they are also protected. It was submitted by the respondents that defendant Nos. 14 to 20 were not entitled to rely upon the probate or the will in support of their case in view of the concession made by them before the Division Bench of the High Court; that probate granted without will being proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act is void ab initio; that the impugned will was surrounded by suspicious circumstances and that the onus was on defendant No.2 or defendant No.14 to remove or explain those circumstances; that the consent decree was a collusive decree entered into with the intention to defeat the rights of the plaintiffs/other heirs in the partition suit; that defendant No.14 or defendant Nos. 15 to 20 cannot claim protection for the transfer, which originated from fraud.; that suit for specific performance was filed by defendant No.14 to complete the sale at the earliest; that the total price/consideration amount payable was higher but defendant No.2 transferred the property for lesser amount; and that by surreptitious method, defendant No.14 in connivance with defendant No.2 as constituted attorney executed Ex.A/2 after death of the owner of the property. =Allowing Civil Appeal Nos. 6258 and 6259 of 2000 and disposing of Civil Appeal Nos. 6871-6873 of 2003 as having become infructuous, the Court HELD: 1.1. Sections 211, 212 and 213 of the Indian Succession Act bring out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. In the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. [54-B; 55-A] 1.2. Under Section 263 of the Act, grant of probate of letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds is failure on the part of the grantee to exhibit/ file an inventory or statement of account Similarly, the probate or letter of administration is liable to be revoked if the grant is obtained fraudulently. If the grant is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void, if it is obtained fraudulently. If the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator’s intention and which are compatible with the administration of the estate are protected. Therefore, on reading Sections 211, 227 along with Section 263 of the Act, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate. [55-G, H; 56- A, B] 1.3. Section 273 of the Act refers to conclusiveness of the probate as to the representative title. It establishes the factum of the will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as long as the grant stands. Under Section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging. It is, therefore, not a pure question of law. Hence, the revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under Section 273 is of validity and contents of the will. [57-B, C, D] Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr., AIR (1951) Bombay 72; S. Parthasarthy Aiyar v. M. Subbaraya Gramany and Anr., AIR (1924) Madras 67; Mt. Azimunnisa Begum v. Sirdar Ali Khan and Ors., AIR (1927) Bombay 387; Cherichi v. Ittianam and Ors., AIR (2001) Kerala 184; Sheonath Singh v. Madanlal, AIR (1959) Raj. 243; Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. AIR (1962) SC 1471; Komollochun Dutt and Ors. v. Nilruttun Mundle 4 ILR Cal.360; Akshay Kumar Pal v. Nandalal Das, ILR (1946) 1 Cal. 432 and Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. LJ 301, referred to. 1.4. The finding of the Trial Court is perverse since it is clear that the probate was revoked only on account of non-citation and despite this evidence, the Trial Court holds that the probate was revoked on the ground of forgery and fraud apart from non-citation. Hence, finding of the Trial Court is unsustainable for want of evidence. [60-F, G, H] 2.1. The testator had married thrice. His first wife pre-deceased him. When he made the will he had two wives and nine children. He was strong willed person who was conscious of his legal rights and had considerable properties. During his life time itself, he asserted his legal rights qua the tenants and used to litigate on every issue. He collected rent from the tenants. He filed eviction and rent collection suits against the tenants. He sued his second wife by filing numerous cases. He was at one point of timeliving with his second wife and her sons in one of the properties. However, his second wife and her sons started disobeying him; they were ungrateful to him; he was ill-treated by them and that thereafter he has been living with his third wife and her son. In the circumstances, there was no question of defendant No.2, executor of the will influencing his father/testator in the making of the will bequeathing the suit premises to him. [62-G, H; 63-A; 64-B-C-D] 2.2. The evidence shows that during the life time of the testator, agreements for sale of the properties, Ex.A/1 and Ex.A/2, came to be executed. That although Ex.A/1 and Ex.A/2 were executed by defendant No.2 as the constituted attorney of the deceased/testator, certain amount was received by the testator himself from defendant No.l4/vendee, which is uncontroverted evidence, and which indicates that the testator was aware of Ex.A/1 and that he intended to sell the suit premises to defendant No.14. Fur her, he lived for almost three years after making the will. He found defendant No.2 to be obedient. He loved defendant Nos. 1 and 2. These basic tell-tale circumstances have not been considered by the Courts below. Both the Courts below have drawn inferences from circumstances with dead uniformity and without realistic diversity. The basic error committed by the Courts below is that it has examined the alleged suspicious circumstances de hors the tell-tale circumstances duly established by evidence and the contents of the will. In the light of the above circumstances, the factors relied upon by the Courts below are not relevant particularly in the context of deciding the question whether the testator had approved the impugned disposition in favour of defendant No.2. [64-E, F, G, H; 65-A] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484 and Smt. Indu Bala Base and Ors. v. Manindra Chandra Base and Anr., AIR (1982) SC 133, referred to. 3.1. The Trial Court has placed reliance on the affidavit of defendant No.l, third wife of the testator, in which she has alleged that the will was forged; and that it was outcome of undue influence exercised by defendant No.2 on his father. However, the said affidavit has been filed by her at an interim stage and it is not put in evidence. Subsequently, she filed another affidavit whereby she confirms the signature of her husband, the testator on the power of attorney in favour of defendant No.2. She also confirms the sale by defendant No.2 in favour of defendant No.14. Defendant No.2 in his evidence has explained that the first affidavit was filed by his mother under misconception and subsequently on going through the papers she had rectified her earlier position. This evidence has not been shaken. Therefore, the alleged suspicious circumstance stood cleared. [65-B, C, D] 3.2. The execution of power of attorney by the testator was found to be abnormal by the Trial Court. He was 90 years of age. Negotiation for sale is a tedious and laborious task. Though he was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, there could be no abnormality in the son being appointed as constituted attorney, particularly when under the will he was the legatee. The Trial Court has come to the conclusion that the power of attorney was not produced in evidence by him and consequently execution of Ex.A/1 by constituted attorney was to defraud the testator and his heirs. However, the Trial Court has failed to consider the evidence of defendant No.2 stating that a part of sale consideration was received by the testator. [65-D, E, F] 3.3 Another circumstance which the Trial Court takes into account is that defendant No.2 has received payments of Rs.9.54 lacs whereas under the agreement (Ex.A/1) he was entitled to receive Rs.15 lacks. However, no suggestion was put to him in cross-examination on this point. In the absence of allegations the Trial Court could not have proceeded on the circumstance to hold that property was sold at a lesser price. In fact, there was no such plea taken by the plaintiffs/legal heirs. [65-G, H; 66-A, B] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484, referred to. 3.4. The Trial Court placed reliance on revocation of probate. According to the Trial Court the will was forged. However, this finding was without evidence. [66-C] Naresh Chandra Ghosh and Ors. v. Archit Vanijya and Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, distinguished. 4. The findings of the Courts below are not based on evidence. The Trial Court has failed to take into account the proved preponderatory circumstances and it was influenced by inconsequential matters in holding that the -will was not genuine. It is reiterated that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate. The findings of the Courts below are perfunctory. High Court has given a finding that in 1982 defendant No.2 got impleaded in a suit without disclosing the conveyance. No particulars of the order of impleadment have been given. However, it has been found that order dated 21.8.1982 passed by Additional District Judge in Misc. Case No.3/80 in which the testator was a party as a shebait and the subject matter of the case was quite different. Further, Ex.A/8 in the present case concerning the suit premises was not relevant in the Misc. case as the subject matter of the two cases was different That in any event the order was not put to defendant No.2 in cross-examination. In the circumstances, the High Court erred in holding that defendant No.2 had deliberately withheld the disclosure of the conveyance and the probate. [66-F, G; 67-B, C, D, E] 5. The High Court has also given a finding that defendant No.2 had obtained the probate fraudulently without service of citation on his mother and two step sisters. There is no evidence. On the contrary, the Probate Court had rejected the application for revocation made by another son of the testator on the ground of forgery and fraud. High Court erred in disbelieving defendant No.2 when he deposed that his two step sisters were not cited as they were not the legatees. This was due to misconception and not on account of fraud. Lastly, the High Court has observed that the will is lying in the state of derelict without being probated. After revocation, defendant No.2 applied for revival of proceedings; that order of revival was passed and it was challenged by one of the sons of the testator. Therefore, these circumstances indicate the strained relationship between the parties, their propensity to litigate at every stage have not been considered by the Courts below. Hence, the findings of the Courts below are based on conjectures and suspicion and that relevant circumstances have not been taken into account. [67-F, H; 68-A, B] 6. The grant of probate establishes the genuineness of the will and the person in whose favour the probate is granted is entitled to convey the title arising out of the will probated by the Court. It may happen that the propounder did not take appropriate steps, by mistake, to notify the other heirs before obtaining probate. But the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder. [68-E, F] Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. L.J. 301, referred to. 7. Without allegation of collusion against developers, both the Courts erred in holding, without evidence, that Ex.A/8 was collusive as it was got executed expeditiously. The evidence shows the propensity of the family to litigate on every issue. Appellant, the developers had invested huge amount not only in the payment of consideration but also by way of costs incurred to free the suit premises from requisition, acquisition and other encumbrances including eviction of tenants. Under these circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, defendant No.2 was not reliable. In the circumstances, without evidence, the Courts below erred on the basis of expedition of sale that Ex.A/8 was fictitious and based on collusion between defendant No.2 and defendant No.14. [70-C, D, E] 8. The second wife of the testator was aware of the will. However, she did not apply for letters of administration. She did not challenge the will. The plaint was amended. The developers demolished the old building and constructed a multi-storied building. They got freed the property from all encumbrances. In the circumstances, it cannot be said that the other heirs of testator had no knowledge of these events. Hence, the test laid down by the High Court in the case of Naresh Chandra Ghosh and Ors. v. Archil Vanijya & Viniyog Ltd. and Ors. in the matter of applicability of Section 41 of the Transfer of Property Act is squarely applicable to the facts of the present case. The intestate heirs of the testator allowed defendant No.2 to represent to the developers that he was the owner of the suit premises. It is established by the conduct of the inaction on the part of the intestate heirs of the testator. Hence, defendant No.14 was bona fide purchaser for value. [71-B, C, D, E] Gurbaksh Singh v. Nikka Singh and Anr., AIR (1963) SC 1917, relied on. Seshumull M. Shah v. Sayed Abdul Rashid and Ors. AIR (1991) Kar.273 and Naresh Chandra Ghosh and Ors. v. Archit Vanijya & Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, approved. 9. Under the will, the suit premises have been bequeathed by the testator to defendant No.2, his son from the third wife who is also appointed as an executor. Therefore, there is nothing to suggest that Ex.A/ 8 was incompatible with the administration of the estate of the testator. In the circumstances, defendant No.14 was a bona fide purchaser for value and the alienation effected by defendant No. 14 in favour of defendants No.15 to 20 was valid. Before the Trial Court, defendant No.14 and defendant Nos. 15 to 20 had asked for stay of the partition suit pending decision by the Probate Court. It was objected to by the plaintiffs. The objection of the plaintiffs was upheld and the matter was decided against the defendants. Besides, before the Trial Court, it was the plaintiffs who had relied upon the alleged suspicious circumstances surrounding the will. In the circumstances, defendants No.14 to 20 cannot be prevented from relying on the probate and the will. [71-G; 72-D, E] G.F.F. Foulkes and Ors. v. A.S. Suppan Chettiar and Anr., AIR (1951) Madras 296, referred to. 10.1. Generally, this Court does not interfere with the concurrent findings recorded by the Courts below in civil appeals by way of special leave under Article 136 of the Constitution of India. However, in cases where the Courts below have given findings on documents and on the basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached, it is incumbent duty of the Court to review such inferential process. In such cases, the right of this Court to review such inferential process cannot be denied. It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. [72-F, G] 10.2.In the instant case, the concurrent findings recorded by the Courts below are interfered with. The judgment and decree of both the Courts below are set aside and the suit for partition stands dismissed. Interim order, if any, against the appellants stands vacated. [72-H; 73-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6258 of 2000. =2004 AIR 4980, 2004(5 )Suppl.SCR31 , 2005(9 )SCC375 , 2004(8 )SCALE390 , 2004(9 )JT64

CASE NO.: Appeal (civil) 6258 of 2000 PETITIONER: Crystal Developers RESPONDENT: Smt. Asha Lata Ghosh (Dead)Thr.Lrs.Ors. DATE OF JUDGMENT: 05/10/2004 BENCH: ASHOK BHAN & S.H. KAPADIA JUDGMENT: J U D G M E N T WITH CIVIL APPEAL No.6259/2000 Archit Vanijya & Viniyog Pvt. Ltd. & Ors. Appellants Versus Smt. Asha Lata Ghosh (Dead) Through … 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

Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was not appointed guardian by Court-Award and decree on award are vitiated. Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-owners in property in favour of one co-owner under wrong impression that it was endowed property-Property later discovered to be Matrooka property-Limitation for filing suit is governed by s. 144 Limitation Act 1908-Where knowledge of right to partition is held back by fraud limitation is extended under s. 18. Adverse possession-Possession by one co-owner is not by itself adverse to other co-owners-These must be open denial of title to the parties entitled to the property by excluding and ousting them-Possession is not adverse to parties not aware of their rights. =Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad. He had four sons and two daughters. After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah. The matter of the partition of Matrooka properties was referred to arbitrators. The appellant who was Abdur Rahim’s youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin. The properties Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai’s brothers and sisters. The arbitrators gave their award on August 1, 1908 partitioning the properties. On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award. The properties B-1 to B-10 thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai got an adjudication from the Nizam’s Government that the Dargah and Khankah properties consisted only of two villages and that properties B-1 to B-10 were not Dargah and Khankah properties. In 1938 Abdul Hai wrote a letter to the Nizam’s government again asserting that properties B-1 to B-10 were his personal properties. The appellant filed a suit on 24th July 1941 for setting aside the decree dated. August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B-1 to B-10. He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian. He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties. The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation. The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation. in’ appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court. The appellant’s brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court. The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected. The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void. [740 D, 741 E-F] Mohd. Amin & Ors. v. Vakil Ahmed & Ors, [1952] S.C.R. 1133 and Imambandi v. Mutsaddi, 45 I.A. 73, referred to.’ (ii) The estate’ of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants in common in specific shares. When the heirs continue to hold-the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Art. 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article. [741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one’. In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings. [746 G-747 B] Monsharam Chakravarty & Ors. v. Gonesh Chandra Chakravarty & Ors., 17 C.W.N. 521, referred to. (iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties. If all parties- proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property. The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it “reason- ably probable that the action will succeed”. [744 H-745 B] 1100Sup CI/72 73 6 Birch v. Birch, [1902] Probate Division 131, referred to. (v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon s. 18 of the Limitation Act to escape from the bar of limitation. When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters. The existence of the right of the appellant was kept concealed by Abdul Hai. The appellant was not aware of the right nor could he have with reasonable diligence discovered it. There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact. It was only in 1941 that the appellant came to know of the Matrooka character of the properties. [745 E, 746 E] Rolfe v. Gregory, [1964] 4 DeG. J & S 576, Boman Chandra Datta v. Promotha Nath Ghose, L.L.R. 49 Cal. 886 and Rahimboy v. Turner, 20 I.A. 1. referred to. (vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates “to matters which prima facie would be a reason for setting the judgment aside”. [747 E-F] Halsbury’s Laws of England, Third Edition, Vol. 22, para 1669 at p. 790. referred to. (vii) The plea of adverse possession must also fail. It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties. Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-oweners and the possession is in hostility to co-owners by exclusion of them. In the present case there was no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. [745 F-H] =1971 AIR 2184, 1971( 3 )SCR 734, , ,

PETITIONER: SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. Vs. RESPONDENT: SYED SHAH AHMED MORIUDDIN KAMISUL QUADRI(DEAD) BY L. Rs. AN DATE OF JUDGMENT17/02/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. MITTER, G.K. CITATION: 1971 AIR 2184 1971 SCR (3) 734 ACT: Minority and Guardianship-Muslim minor represented in arbitration proceedings and in Court by brother who was … Continue reading

Code of Civil Procedure, 1908 : Order 21 Rules 49 & 50-Attachment of partnership property-Decree against a partnership firm-Execution of-Liability of partners for acts done by the firm-A decree for a certain amount was passed against the State in respect of construction work of irrigation department under the Arbitration Act, 1940-Firm filed execution and recovered the decretal amount-High Court allowed the appeal filed by the State against the judgment and decree-State moved application under S. 144 on 2.4.1981-Against the said amount, apart from two surety bonds, a house was also furnished as securities-Partner of the firm, who was the exclusive owner of the said house, executed a Will in 1983 bequeathing the house in favour of her grandson and she died in 1985-Attachment order of the house was passed in 1992-The grandson’s application filed under O.21 R. 58 for release of the house was dismissed holding that the testator being a partner had no right to execute the Will in respect of the disputed house-In appeal, the High Court held that the Will was prepared to defraud the creditor and not with an intention to bonafidely bequeath the property to the grandson and also to defeat the execution of decree obtained by the State-Decretal amount was received by the State on 17.10.1992-Partnership firm did not dispute liability-The only dispute was the claim of interest from 17.10.1992-Held: Execution under O. 21 &. 49 may be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners-Claim of interest from 17.10.1992 is on the high side and excessive-Hence, debtor directed to pay a sum of Rs. 1,00,000 in full satisfaction of the claim-Partnership Act, 1932, Ss. 24 and 25. A decree for a certain amount was passed against the respondent-State and in favour of a partnership firm in respect of construction work of the irrigation department under the Arbitration Act, 1940. The said company filed execution and recovered the decretal amount. The appeal preferred by the respondent-State against the aforesaid judgment and decree was allowed ex parte by the High Court. An application under Section 144 of the Code of Civil Procedure, 1908 was moved on behalf of the respondent-State on 2.4.1981. As against the decretal amount, two surety bonds and a house were furnished as securities. The partner of the firm, who was the exclusive owner of the said house, executed a Will in 1983 bequeathing the house in favour of the appellant and died in 1985. Attachment order in respect of the house was passed in the Execution case in 1992. The appellant’s application under Order 21 Rule 58 CPC for release of the house was dismissed on the ground that the `testator had no right to execute the Will in respect of the disputed house. The decretal amount was received by the respondent-State and the only dispute was with regard to interest from 17.10.1992. The High Court dismissed the appellant’s appeal on the ground that the Will was prepared to defraud the creditor and not with an intention to bonafidely bequeath the property to the appellant and to defeat the execution of the decree obtained by the respondent-State. Hence the appeal. =Disposing of the appeal, the Court HELD: 1.1. It is not in dispute that the decree was passed against the firm in which the testator was also a partner. Under the provisions of the Partnership Act, 1932, one partner is the agent of the other. The partner is always liable for the partnership debt unless there is implied or express restriction. In the instant case, notice was duly served on the testator and her husband. 1.2. Section 24 of the Act is based on the principle that as a partner stands as an agent in relation to the firm, a notice to the agent is tantamount to the principals and vice versa. As a general rule, notice to a principal is notice to all his agents; and notice to an agent of matters connected with his agency is a notice to his principal. 1.3. Under Section 25 of the Act, the liability of the partners is joint and several. It is open to a creditor of the firm to recover the debt from any one or more of the partners. Each partner shall be liable as if the debt of the firm has been incurred on his personal liability. Dena Bank v. Bhikhabhai Prabhudas Parekh, [2000] 5 SCC 694 and ITO v. Arunagiri Chettiar, [1996] 9 SCC 33, relied on. 2. In the instant case, the respondent-State has obtained a decree against the partnership firm. The High Court has clearly held in its judgment that the Will was a created document to delay the recovery proceedings. It is further seen that the liability is not disputed by the firm or partners. 3. The execution under Order 21 Rule 50 of the Code of Civil Procedure, 1908 can only be granted where a decree has been passed against a firm. A decree against a firm must perforce be in the firm’s name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners in which case the decree-holder may proceed against the separate property of the partners. Sahu Rajeshwar Rao v. ITO, AIR (1969) SC 667 and H.H. Maharani Mandalsa Devi v. M. Ramnaram Pvt. Ltd., AIR (1965) SC 1718, relied on. 4.1. It is not in dispute that the decretal amount was received by the respondent-State dispute between the parties is only with reference to the interest payable on the decretal amount from 17.10.1992, which according to the respondent-State was payable by the Firm. 4.2. It is true that justice must be done at all costs. At the same time, one should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on the decretal amount @ 18% per annum from 17.10.1992 is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The respondent-State has to wait for some more time to realize the fruits of the decree. Hence, the appellant is directed to pay Rs. 1,00,000 in full satisfaction of the claim made by the respondent-State. Manoj Prasad, Adv. for the Appellant. Aruneshwar Gupta, Addl. Advocate General, Naveen Kumar Singh for the Respondents.=2005 AIR 3434, 2005(2 )Suppl.SCR1057, 2005(7 )SCC308 , 2005(7 )SCALE27 , 2005(8 )JT58

CASE NO.: Appeal (civil) 5345 of 2005 PETITIONER: Ashutosh RESPONDENT: State of Rajasthan & Ors. DATE OF JUDGMENT: 30/08/2005 BENCH: Ruma Pal & Dr. AR. Lakshmanan JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Civil) No.4120 OF 2004) Dr. AR. Lakshmanan, J. Leave granted. The unsuccessful appellant in S.B. Civil … Continue reading

how to determine whether the property is a public temple or belongs to private math?- golden principles-whether an endowment is of a private or of a public nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by member of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.”

1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8439 OF 2001 Parasamaya Kolerinatha Madam, Tirunelveli … Appellant Vs. P.Natesa Achari & Ors. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. The appellant Math was the plaintiff in a suit (C.S.No.2/1983) filed against the respondents 1 and … Continue reading

Income Tax Act, 1961: ss.115JAA, 234A, 234B, 234C – Minimum Alternate Tax (MAT) credit admissible in terms of s.115JAA is to be set off against the tax payable before calculating interest u/ss. 234A, B and C of the Act. The question which arose for consideration in the instant appeals was whether MAT credit admissible in terms of Section 115JAA of the Income Tax Act, 1961 has to be set off against the tax payable (assessed tax) before calculating interest under Sections 234A, B and C of the Act. =Dismissing the appeals, the Court HELD: 1. As per the provisions of Section 115JA of Income Tax Act, 1961, a company is liable to pay tax on 30% of book profits, if the income computed under normal provisions of the Act is less than 30% of the book profits. Thus, the assessee is required to compute income chargeable to tax on two alternative basis – (i) income computed under normal provisions of the Act and (ii) 30% of book profits as disclosed in the P & L Account prepared in accordance with Parts II and III of Schedule VI to the Companies Act, 1956, subject to the adjustments specified in the Explanation to Section 115JA. The higher of the two computations is deemed to be the “total income” chargeable to tax and tax is payable accordingly. Thus, Section 115JA enacts a deeming fiction by deeming 30% of book profits to be the “total income” chargeable to tax. The amount of tax paid under Section 115JA is held to be a “tax” payable under the Act, as defined in Section 2(43). [Para 5] [1126-D-F] 2. The relevant provisions under Section 115JAA of the Act, introduced by Finance Act, 1997 w.e.f. 1.4.1997, i.e., applicable for assessment years 1997-98 and onwards, governing the carry forward and set off of credit available in respect of tax paid under Section 115JA, show that when tax is paid by the assessee under Section 115JA, then the assessee becomes entitled to claim credit of such tax in the manner prescribed. Such a right gets crystallized no sooner the tax is paid by the assessee under Section 115JA, as per the return of income filed by that assessee for a previous year. [Section 115JAA(1)]. The said credit gets limited to the tax difference between tax payable on book profits and tax payable on income computed under the normal provisions of the Act [Section 115JAA(2)] in year one. Such credit is, however, allowable for a period of five succeeding assessment years, immediately succeeding the assessment year in which the credit becomes available [Section 115JAA(3)]. However, MAT credit is available for set off against the tax payable in succeeding years where the tax payable on income computed under the normal provisions of the Act exceeds the tax payable on book profits computed for that year [Section 115JAA(4),(5)]. The statute envisages under Section 115JAA “credit in respect of tax so paid” because the entire tax is not an automatic credit but has to be calculated in accordance with sub-section (2) of Section 115JAA. Sub-section (4) to Section 115JAA allows “tax credit” in the year tax becomes payable. Thus, the amount of set off is limited to the tax payable on the income computed under the normal provisions of the Act less the tax payable on book profits for that year. [Section 115JAA(4) and Section 115JAA(5)]. The tax credit to be allowed is the function of the tax payable on book profits and the tax payable on income computed under the normal provisions of the Act, in year one. The difference of the two is the amount of tax credit to be allowed. The A.O. may vary the amount of tax credit to be allowed pursuant to completion of summary assessment under Section 143(1) or regular assessment under Section 143(3) for year one, in terms of Section 115JAA(6). As a consequence of such variation the tax credit to be allowed for year one is liable to change. With every change in the amount of tax payable on book profits and/ or tax payable on income computed under the normal provisions of the Act, the tax credit to be allowed would have to be changed by the A.O. by passing consequential orders, deriving authority from Section 115JAA(6) of the Act. Thus, the tax credit allowable can be set off by the assessee while computing advance tax/ self-assessment tax payable for years 2 to 6 limited to the difference between the tax payable on income computed under the normal provisions and tax payable on book profits in each of those years, as per assessee’s own computation. Although the right to avail tax credit gets crystallized in year one, on payment of tax under Section 115JA and the set off thereof follows statutorily, the amount of credit available and the amount of set off to be actually allowed as in all cases of deductions/ allowances under Sections 30-37, is fluid/ inchoate and subject to final determination only on adjudication of assessment either under Section 143(1) or under Section 143(3). The fact that the amount of tax credit to be allowed or to be set off is not frozen and is ambulatory, does not take away/ destroy the right of the assessee to the amount of tax credit. [Para 6] [1126-G-H; 1127-A-H; 1128-A-D] 3. The entire scheme of Sections 115JA(1) and 115JAA shows that if an assessee is entitled to a tax credit as a consequence of the assessee making payment of tax under Section 115JA(1) in the year one, then, the set off of such tax credit follows as a matter of course once the conditions mentioned in Section 115JAA are fulfilled and the grant of such credit is not dependent upon determination by the A.O. save and except that the ultimate amount of tax credit to be allowed will be dependent upon the final determination of the total income for the first assessment year. There is no provision under Section 115JAA which postpones the right of the assessee to claim set off to the determination of the total income by the A.O. in the first assessment year. Entitlement/right to claim set off is different from the quantum/quantification of that right. Entitlement of MAT credit is not dependent upon any action taken by the Department. However, quantum of tax credit will depend upon the assessment framed by the A.O. Thus, the right to set off arises as a result of the payment of tax under Section 115JA(1) although quantification of that right depends upon the ultimate determination of total income for the first assessment year. Further, an assessee has a right to take into account the set off even while estimating its liability to pay advance tax on the “current income” in accordance with the provisions of Chapter XVII-C. Although Section 209(1)(d) does not make any specific provision either before or after the amendments carried out by the Finance Act, 2006 to the effect that an assessee is entitled to set off the tax credit that would be available in terms of Section 115JAA(1) while computing the quantum of advance tax that is to be paid it must follow that an assessee would be entitled to do so otherwise it results in absurdity, viz, that an assessee pays advance tax on the footing that it is not entitled (when in fact it is so entitled to the credit and thereafter claims a refund of such advance tax paid as a consequence of the set off. Moreover, when an A.O. makes an intimation under Section 143(1) he accepts the return filed by the assessee to which the A.O. may make an adjustment and consequently makes a demand or refund. Section 143(1) provides that where a return is made under Section 139 and if any tax or interest is found due on the basis of such return after adjustment of any TDS, any advance tax, any tax paid on self assessment and any amount paid otherwise by way of tax or interest, then, without prejudice to provisions of sub-section (2), an intimation will be sent to the assessee specifying the amount so payable and such intimation shall be deemed to be a notice of demand under Section 156 and all the provisions of the Act shall apply thereto. This section itself makes it clear that whilst the A.O. determines the tax payable he has to give credit for all taxes paid either by way of deduction at source, advance tax, self assessment tax or tax paid otherwise which would include or which cannot exclude tax credit under Section 115JAA(1). The credit allowed is the excess of the normal tax liability over MAT liability in the subsequent years. [Para 9] [1131-A-H; 1132-A-E] 4. Under Section 234B, “assessed tax” means the tax on the total income determined under Section 143(1) or on regular assessment under Section 143(3) as reduced by the amount of tax deducted or collected at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or collection and which is taken into account in computing such total income. The definition, thus, at the relevant time excluded MAT credit for arriving at assessed tax. This led to immense hardship. The position which emerged was that due to omission on one hand MAT credit was available for set off for five years under Section 115JAA but the same was not available for set off while calculating advance tax. This dichotomy was more spelt out because Section 115JAA did not provide for payment of interest on the MAT credit. To avoid this situation, Parliament amended Explanation 1 to Section 234B by Finance Act, 2006 w.e.f. 1.4.2007 to provide along with tax deducted or collected at source, MAT credit under Section 115JAA also to be excluded while calculating assessed tax. [Para 11] [1133-D-G] 5. Any tax paid in advance/pre-assessed tax paid can be taken into account in computing the tax payable subject to one caveat, viz, that where the assessee on the basis of self computation unilaterally claims set off or MAT credit, the assessee does so at its risk as in case it is ultimately found that the amount of tax credit availed was not lawfully available, the assessee would be exposed to levy of interest under Section 234B on the shortfall in the payment of advance tax. The consequence of adopting the case of the Department would mean that MAT credit would lapse after five succeeding assessment years under Section 115JAA(3); that no interest would be payable on such credit by the Government under the proviso to Section 115JAA(2) and that the assessee would be liable to pay interest under Sections 234B and C on the shortfall in the payment of advance tax despite existence of MAT credit standing to the account of the assessee. Thus, despite MAT credit standing to the account of the assessee, the liability of the assessee gets increased instead of it getting reduced. [Para 12] [1134-H; 1134-A-E] 6. It is immaterial that the relevant form prescribed under Income Tax Rules, at the relevant time (i.e. before 1.4.2007), provided for set off of MAT credit balance against the amount of tax plus interest i.e. after the computation of interest under Section 234B. This was directly contrary to a plain reading of Section 115JAA(4). Further, a form prescribed under the rules can never have any effect on the interpretation or operation of the parent statute. [Para 13] [1134-E-F] National Thermal Power Corpn. Ltd. v. Union of India 192 ITR 187 – approved. Case Law Reference: 192 ITR 187 approved Para 5 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10677-10679 of 2010. With 10680-81 to 10706, 10708 to 10740, 10745-46 to 10760 of 2010. Biswajit Bhattacharya, ASG, R.P. Bhatt, Arijit Prasad, H.R. Rao, Manish Pushkarna, Syed Abdul Haseeb, Gautam Jha, Ajay Singh, Judy James, Md. Manan, A. Deb Kumar, B.V. Balaram Das for the Appellant. P.J. Pardiwalla, S. Ganesh Shekhar Nephade, Shyam Divan, R.K. Raghavan, K.V. Mohan, Rustom B. H

1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs.10677-79 OF 2010 (arising out of S.L.P. (C) Nos. 25320-25322 of 2009) Commissioner of Income Tax, Chennai … Appellant(s) versus Tulsyan NEC Ltd. … Respondent(s) with Civil Appeal Nos.10680-81/2010 (@ S.L.P. (C) Nos. 29672- 73/09), Civil Appeal No.10682/2010 (@ S.L.P. (C) No. 27584/09), … Continue reading

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