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JURISDICTION OF CIVIL COURT AIR 1969 SC 78

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In Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, Hidayatullah, C.J., speaking for the Court on an analysis of the various decisions cited before the Court expressing diverse views, laid down as many as seven principles regarding exclusion of jurisdiction of civil court out of which at least two principles being germane to the controversy involved in this petition are excerpted below:
"(1) Where the statute gives a finality to the orders of the special Tribunal the civil court's Jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted In conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court."

DECLARATION BY REAL OWNER AGAINST FORGED AND IMPERSONATED SALE DEEDS NOT REQUIRED

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Justice S.N.Variava, & Justice V.N.Khare in a case before supreme court, in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., Reported in (2001) 3 SCC 24 AIR 2001 SC 1250 “On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.”

WHEN ORIGINAL WILL IS LOST - THE LEGAL EFFECTS


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BENCH OF SUPREME COURT CONSISTING OF JUSTICE FAZAL ALI, SYED MURTAZA SHINGAL, P.N. IN A CASE OF DURGA PRASAD VS DEVI CHARAN REPORTED IN AIR 1979 SC 145, The correct legal position may be stated thus:
(i) Where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people.
(ii) Such a presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted.
(iii) In view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.
(iv) Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn.
(v) In view of the express provision of section 70 of the Indian Succession Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.
(vi) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons.

SALE AGREEMENT IS NOT AN ENCUMBRANCE ON PROPERTY 2011 JULY SC

JUSTICE R.V. Raveendran, & JUSTICE K.S. Panicker Radhakrishnan in Saradamani Kandappan vs S. Rajalakshmi & Ors 2011 JULY SC

SALE AGREEMENT IS NOT AN ENCUMBRANCE ON PROPERTY 2011 JULY SC

 An `encumbrance' is a charge or burden created by transfer of any interest in a property. It is a liability attached to the property that runs with the land. [See National Textile Corporation vs. State of Maharashtra - AIR 1977 SC 1566 and State of H.P. vs. Tarsem Singh - 2001 (8) SCC 104]. Mere execution of an MOU, agreeing to enter into an agreement to sell the property, does not amount to encumbering a property. Receiving advances or amounts in pursuance of an MOU would not also amount to creating an encumbrance.

WHO SHALL BE EXAMINED AS WITNESS IN CIVIL CASES 2011 JULY SC JUSTICE

When one of the defendants who is conversant with the facts has given evidence, it is not necessary for the other defendants to be examined as witnesses to duplicate the evidence. The legal position as to who should give evidence in regard to the matters involving personal knowledge have been laid down by this court in Man Kaur (dead) by LRS. v. Hartar Singh Sangha (2010) 10 SCC 512. This court has held that where the entire transaction has been conducted through a particular agent or representative, the principal has to examine that agent to prove the transaction; and that where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by the agent, necessarily the agent alone can give evidence in regard to the transaction. This court further observed: Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. Therefore the evidence of the fourth defendant (examined as DW2) was sufficient to put forth the case of the defendants and there was no need to examine the other three defendants who did not have full or complete knowledge of the transactions.

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GUIDELINES AND NORMS FOR TENANCY AND EVICTION LITIGATIONS, SO AS TO MINIMIZE LANDLORD-TENANT LITIGATION AT ALL LEVELS.

JUSTICE DALVEER BHANDARI & JUSTICE DEEPAK VERMA OF SUPREME COURT OF INDIA IN Mohammad Ahmad & Anr. Vs. Atma Ram Chauhan & Ors Issued GUIDELINES AND NORMS FOR TENANCY AND EVICTION LITIGATIONS, SO AS TO MINIMIZE LANDLORD-TENANT LITIGATION AT ALL LEVELS.

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.

(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv)But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.

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KARNATAKA LAND LAWS