tag:blogger.com,1999:blog-78928644745587809902024-03-05T21:09:19.425+05:30CASE LAW ON LAND LAWSCollections of Case lawsAdvocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.comBlogger305125tag:blogger.com,1999:blog-7892864474558780990.post-47306740726107381402020-09-11T13:40:00.003+05:302020-09-23T19:47:57.709+05:30ಹಿಂದು ಕಾನೂನು ಆಸ್ತಿ ವಿಚಾರವಾಗಿ - ಇತ್ತೀಚಿನ ವಿಧ್ಯಮಾನಗಳನ್ನು ಅಳವಡಿಸಿ ಹಿಂದಿನ ಪುಸ್ತಕದ ಮುಂದುವರಿದ ಬಾಗ<blockquote><a href="https://drive.google.com/file/d/1dnlhX1Gj9JFsMPaGaa88l88cRyEqIPki/view?usp=sharing" target="_blank">ಡೌನ್ ಲೋಡ್ ಮಾಡಲು ಇಲ್ಲಿ ಕ್ಲಿಕ್ ಮಾಡಿ </a></blockquote>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-62577115391258019982020-02-19T06:14:00.001+05:302020-03-10T09:17:11.544+05:30ಆಸ್ತಿಗಳ ವಿಚಾರದಲ್ಲಿ ಸಮಗ್ರ ಹಿಂದು ಕಾನೂನು<div dir="ltr" style="text-align: left;" trbidi="on"><br />
<div class="MsoNormal" style="text-align: justify;"><u><span style="font-family: NudiUni01e; font-size: 26.0pt; line-height: 107%; mso-effects-shadow-align: topleft; mso-effects-shadow-alpha: 40.0%; mso-effects-shadow-angledirection: 2700000; mso-effects-shadow-anglekx: 0; mso-effects-shadow-angleky: 0; mso-effects-shadow-color: black; mso-effects-shadow-dpidistance: 1.5pt; mso-effects-shadow-dpiradius: 3.0pt; mso-effects-shadow-pctsx: 100.0%; mso-effects-shadow-pctsy: 100.0%; mso-effects-shadow-themecolor: dark1; mso-ligatures: standardcontextual; mso-style-textoutline-outlinestyle-align: center; mso-style-textoutline-outlinestyle-compound: simple; mso-style-textoutline-outlinestyle-dash: solid; mso-style-textoutline-outlinestyle-dpiwidth: 0pt; mso-style-textoutline-outlinestyle-join: round; mso-style-textoutline-outlinestyle-linecap: flat; mso-style-textoutline-outlinestyle-pctmiterlimit: 0%; mso-style-textoutline-type: none;">#ಆಸ್ತಿಗಳ ವಿಚಾರದಲ್ಲಿ ಸಮಗ್ರ ಹಿಂದು ಕಾನೂನು<o:p></o:p></span></u></div><div class="MsoNormal" style="text-align: justify;"><u><span style="font-family: NudiUni01e; font-size: 18.0pt; line-height: 107%; mso-effects-shadow-align: topleft; mso-effects-shadow-alpha: 40.0%; mso-effects-shadow-angledirection: 2700000; mso-effects-shadow-anglekx: 0; mso-effects-shadow-angleky: 0; mso-effects-shadow-color: black; mso-effects-shadow-dpidistance: 1.5pt; mso-effects-shadow-dpiradius: 3.0pt; mso-effects-shadow-pctsx: 100.0%; mso-effects-shadow-pctsy: 100.0%; mso-effects-shadow-themecolor: dark1; mso-style-textoutline-outlinestyle-align: center; mso-style-textoutline-outlinestyle-compound: simple; mso-style-textoutline-outlinestyle-dash: solid; mso-style-textoutline-outlinestyle-dpiwidth: 0pt; mso-style-textoutline-outlinestyle-join: round; mso-style-textoutline-outlinestyle-linecap: flat; mso-style-textoutline-outlinestyle-pctmiterlimit: 0%; mso-style-textoutline-type: none;">#ಈ ಪುಸ್ತಕವನ್ನು ಮುದ್ರಕರೊಬ್ಬರಿಗೆ ಶರತ್ತು ವಿಧಿಸದೆ ಈಗ್ಗೆ ಸುಮಾರು 6 ತಿಂಗಳ ಹಿಂದೆ ಕೊಡಲಾಗಿತ್ತು, ಕಾಣದ ಕೈಗಳು ಈ ಪುಸ್ತಕವನ್ನು ಮುದ್ರಿಸಲು ಅಡ್ಡ ಬಂದಿದ್ದಾರೆ ಎಂದು ತಿಳಿದು ಕೊಂಡು ಮನಸ್ಸಿಗೆ ನೋವಾಗಿದೆ. ಇದನ್ನು ಅನ್ಲೈನಿನಲ್ಲಿ ಪ್ರಕಟಿಸುತ್ತಿದ್ದೇನೆ. ಇದು ಡೌನ್ ಲೋಡ್ ಮಾಡಲು ಬರುವುದಿಲ್ಲ. ಆದರೆ ಮುಂದೆ ನಿಮಗೆ ಪುಸ್ತಕದ ಮಾದರಿಯಲ್ಲಿ ಕಡಿಮೆ ಬೆಲೆಗೆ ಹಂಚುವ ಕಾರ್ಯ ನಡೆಯುತ್ತದೆ. ಅಲ್ಲಿವರೆಗೆ ನಿಮ್ಮ ಮಾಹಿತಿಗಾಗಿ. ದೇವರು ಎಲ್ಲರನ್ನೂ ಚೆನ್ನಾಗಿ ಇಟ್ಟಿರಲಿ.</span></u><span style="font-size: 18.0pt; line-height: 107%;"><o:p></o:p></span></div><br />
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<div dir="ltr" style="text-align: left;" trbidi="on"><iframe height="600" src="https://drive.google.com/file/d/1l_1JvcJVh_JAW2GJamia1hFEkaEOPx1R/preview" width="640"></iframe> <script type="text/javascript">
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<blockquote class="tr_bq" style="text-align: center;">
<span style="color: #660000; font-family: Georgia, Times New Roman, serif;"><b>PUBLISHERS WHO ARE READY TO PUBLISH CAN CONTACT AUTHOR.</b></span></blockquote>
<b>Contents </b><br />
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<li><span style="color: #002060; font-family: "Bookman Old Style",serif;">The facts collected from reportable judgements and orders, that
is collected from various authentic sources, the supplementary comments were
made from collecting info from several sources indicated therein which shows,
Muslim fundamentalists are influenced by interpretation of Quran and Islamic
literature. Which is not suitable for
present peaceful co-existence. Until such interpretations and literature are
disowned by peace loving Muslims and rectify their brothers at cross roads, there
will be no end to Religious and Political Terrorism. It is also
self-destructive. The Islamic literature of Hadiths has stated the same, which
is not yet read and realized by many Muslims.</span></li>
</ul>
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<li><span style="text-align: justify;"><span style="color: #002060; font-family: "Bookman Old Style", serif; font-weight: bold;">SUB-SECTION (11) OF
SECTION 57 OF THE EVIDENCE ACT, DESIRES THE COURT TO TAKE A JUDICIAL NOTICE OF
HOSTILITIES BETWEEN THE GOVERNMENT OF INDIA AND ANY OTHER STATE OR BODY OF
PERSONS</span></span></li>
</ul>
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<span style="text-align: left;"><span style="color: #002060; font-family: "Bookman Old Style", serif; line-height: 107%;"> </span><span style="color: #002060; font-family: "Bookman Old Style", serif; font-size: 11pt; font-weight: bold; line-height: 107%;">Adnan Bilal Mulla vs. The
State : MANU/MH/ 0031/2006</span></span></div>
<span style="color: #002060; font-family: "Bookman Old Style",serif; font-size: 11.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;"></span><br />
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-3139290018267518652020-01-26T22:42:00.005+05:302020-05-23T10:47:13.686+05:30ಪಿ.ಟಿ.ಸಿ.ಎಲ್ ಪ್ರಕರಣಗಳ ಕಾನುನು ಸಿದ್ದಾಂತಗಳ ಸಂಗ್ರಹ ಎನ್. ಶ್ರೀಧರ ಬಾಬು<font size="6">
ಡೌನ್ ಲೋಡ್ ಲಿಂಕ್ ಇದು ----- </font><div><br /></div><div><a href="https://drive.google.com/file/d/1JfihWL31RU_RGNPbO5LdKw4QzcHBVEEs/view?usp=sharing " target="_blank">https://drive.google.com/file/d/1JfihWL31RU_RGNPbO5LdKw4QzcHBVEEs/view?usp=sharing</a></div><div><br /><div><br /></div><div><font size="6">
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-14146604128743106762019-06-03T11:33:00.003+05:302019-06-03T11:34:19.167+05:30WHEN SALE IS MADE BY SOME STRANGER WHAT WE CAN DO AS OWNERS<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="background: white;"><span style="font-family: "times" , "times new roman" , serif;">M. Ramakrishna Reddy vs. Sub
Registrar Bengaluru and Another (MANU/KA/0692/1999 : AIR 2000 KAR 46.) It is
held as below:- "10. In view of the above, when a person who claims to be
the owner or a person interested in an immovable property, finds that someone
else has executed and registered a sale deed or other deed in regard to his
property, claiming to be the owner or a person interested in the property, the
appropriate course for him is to file a suit for declaration and consequential
reliefs. If he is satisfied such sale deed is executed by a person without any
title and that the deed is void ab initio, he may even choose to ignore the
same and leave it to the person claiming title under such deed to establish his
title in appropriate proceedings. A Court of Law has the jurisdiction to
declare a document to be void or even cancel a document. But under no
circumstances, a person claiming to be the owner of a property or a holder of a
property, can require the Registering Authority to cancel the registration of a
document or to cancel the entry made in Book No. 1 in regard to a registered
document or to delete or remove the entry made in the indexes relating to Book
No. 1. The Registering Officer has no such power. Consequently, the question of
the Registering Officer deleting any entry either from the Indexes of Book No.
1 or the extracts there from contained in the Encumbrance Certificate by
holding transaction covered by a registered instrument is illegal or void, does
not arise".<o:p></o:p></span></span></div>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-13574102664855352732019-05-26T16:15:00.001+05:302019-06-03T10:53:06.526+05:30CREATION OF TRUST BY WILL - JUSTICE Surya Prakash Kesarwani<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: Times, Times New Roman, serif;"> <b>In Malayammal vs. A. Malayalam Pillai, 1991 (supp.2) SCC 579</b> (paras 11, 15, 16 and 19) Hon'ble Supreme Court held, as under:<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"11. In Hindu system there is no line of demarcation between religion and charity. On the other hand, Charity is regarded as a part of religion. But "what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">15. ..................... It is one of the cardinal principles of construction of Wills that wherever it is possible, effect should be given to every bequest of the testator unless it is opposed to law, custom or practice. If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law. Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved. ........................<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">16. ............................ in construing the validity of an endowment created under a Will, we cannot be guided merely by the acts of the manager or the manner in which the executor of the Will has understood the directions of the testator. We are required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will. ....................<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">19. .................... As observed by Patanjali Shastri, J., as he then was, in Veluswami Goundan vs. Dandapani, [(1946) 1 MLJ 354] where no deity is named in the deed of endowment, the court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained. We agree that these are the safe guides."<o:p></o:p></span></div>
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<b>In Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi</b>, 2009, 3 SCC 287 (paras 3, 11, 27, 29, 30, 32, 33 and 36), Hon'ble Supreme Court laid down the principles for construction of a Will and held as under:</div>
</span><br />
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<span style="font-family: Times, Times New Roman, serif;">"3. Controversy involved in this appeal centres around the construction of a Will executed by one Shri Bishan Sahai Vidyarthi on 21.11.1965. The said Bishan Singh Sahai died in or about 1973.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">11. One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned Trial Judge answered the question in the affirmative. The same was reversed by the first appellate court. A finding of fact arrived at by the first appellate court is ordinarily final. Its correctness can be questioned if, inter aila, the same was based upon no evidence or is otherwise perverse or that correct legal principles were (sic not) applied.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">27. This gives rise to two questions which are of some importance. When a sum is to be invested in the immoveable property and in the event, any further sum is necessary, the extent of title is required to be determined, does it demonstrate the intention on the part of the testator. In our opinion, it does. Wakf is a 'final dedication'. It goes out of the control of dedicator. The use of the said word may not be appropriate in a situation of this nature but that only goes to show that the testator intended to divest himself of the said property.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">29. It may be true that the property was purchased in the name of the testator himself. The High Court commented that the same could have been done in the name of the appellant and his mother or at least the purchase could have been a joint one. But the Will is required to be construed on the basis of the terms used therein and not otherwise.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">30. The answer to the question may be difficult one. Only because there does not exist any straight forward answer, the same would not mean that beneficiaries under the Will shall be deprived therefrom only because the property was purchased in his own name by the testator. The testator had a long wish to purchase an immoveable property. He even thought of acquiring a property, price whereof might exceed Rs.30,000/-. If he wanted to keep apart the said sum of Rs.30,000/- for the benefit of the appellant and his mother, we think he also wanted to bequeath the immoveable property purchased out of the said amount.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">32. How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">33. In Navneet Lal v. Gokul [(1976) 1 SCC 630] it has been held :<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"8. From the earlier decisions of this Court the following principles, inter alia, are well established:<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal AIR 1951 SC 139) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha Appa Row v. Parthasarathy Appa Row (1913-14) 41 IA 51) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar AIR 1951 SC 103) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das AIR 1963 SC 1703) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite(2003) 6 SCC 98)'." {See also Arunkumar & Anr. v. Shriniwas & Ors. [(2003) 6 SCC 98]}<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">36.In Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363], it is stated :<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"Keeping in mind the aforementioned backdrop, the Will should be construed. It should be done by a Court indisputably placing itself on the armchair of the testator. The endeavour of the court should be to give effect to his intention. The intention of the testator can be culled out not only upon reading the will in its entirety, but also the backgrounds facts and circumstances of the case."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>In Dayal Chand Vs. Fifth Addl. Additional District and Sessions Judge, Saharanpur & others (1979) 5 ALR 97 (para 6):</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><span style="font-family: "georgia" , "times new roman" , serif;">"6.Section 5 of the Indian Trusts Act lay down that no Trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing, signed by the author of the trust or the trustee, and registered, or by the will of the author of the trust or the trustee. The Indian Trust Actapplies to Hindus. But, Section 1 of the said Act clearly saves from its operation all religious and charitable endowments, either public or private. It is thus clear that except where a trust is created by a will, it is quite competent to a Hindu to dedicate for religious or charitable purposes, any immovable property without document in writing. For creating a trust, what is required is the unequivocal declaration of the intention followed by the dedication of the property. B.K. Mukerji in his book on Hindu Law of Religious and Charitable Trusts stated as follows: </span><span style="font-family: "georgia" , "times new roman" , serif;">"There are a large number of decided cases where it has been held, that to constitute valid dedication of property by a Hindu for religious or charitable purpose, no document in writing or registered is necessary."</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><span style="font-family: "georgia" , "times new roman" , serif;"><b>In K.S. Palanisami (Dead) through Legal Representatives Vs. Hindu Community in General and Citizens of Gobichettipalayam and others (2017) 13 SCC 15 </b>(paras 42, 45 and 61): </span><span style="font-family: "georgia" , "times new roman" , serif;">"42. Justice B.K. Mukherjea J., speaking for this court in Gnambal Ammal Vs. T. Raju Ayyar and others, AIR 1951 SC 103, on construction of the will laid down the following in para 10:</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"10. The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha Vs. Parthasarathy Appa Row, 1913 SCC OnLine PC 39:-<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"[the Courts] are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. ''The Court is entitled to put itself into the testator's armchair'......But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions...... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">44. General principles for construction of a Will have been reiterated by this court in a large number of cases. It shall be sufficient to refer to a three Judge Bench judgment of this court in Navneet Lal alias Rangi Vs. Gokul & Others, 1976 (1) SCC 630. After referring to judgment of Privy Council and several judgments of this court, certain principles were enumerated in paragraph 8 of the judgment, which is to the following effect:-<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"8. From the earlier decisions of this Court the following principles, inter alia, are well established:<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered ; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.(Ram Gopal V. Nand Lal AIR 1951 SC 139).<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">(2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha V. Parthasarathy 1913 SCC OnLine PC 39) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. . . . But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha's case(supra) and Gnambal Ammal V. T. Raju Ayyar AIR 1951 SC 103) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(3) The true intention of the testator has to be gathered not by attaching importance to isolated expression but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh V. Thakurain Bakhtraj Kuer AIR 1953 SC 7) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal V. Rameshwar Das AIR 1963 SC 1703) </span></div>
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<span style="font-family: Times, Times New Roman, serif;">(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy V. Mrs. Hilda Brite AIR 1964 SC 1323)"<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">45. The High Court in the impugned judgment has elaborately considered whether a Will is a Joint Will or Joint and Mutual Will. High Court after referring to the large number of cases has come to the conclusion that it is a Joint and Mutual Will, since both the testator and testatrix agreed to devote their properties for carrying out charities, the High Court concluded that intention of both testator and testatrix to give property to charities is manifest from the reading of the Will in its entirety.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">61. We, thus, are of the view that giving absolute right to the survivor during his lifetime to deal with the properties in no manner cannot be said to be right given in disregard of object of trust. The charitable purpose of the Will is not lost even if survivor is given absolute right. The obligation of survivor to act in furtherance of object as agreed by both the testators survives and binds the survivor. Although the Will was irrevocable after the death of survivor but the Will expressly granted absolute right to survivor."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>WHAT IS DHARMASALA ?</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">33. A popular form of Hindu charitable trust is the institution known as Dharmasala. The expression primarily signifies a rest house and it corresponds to what is known as choultry in Southern India, the object of which is to provide rest and some times food to travellers and itinerant ascetics. Thus, dedication for Dharmasala is a charitable object.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>DEDICATION OF PROPERTY FOR CHARITY</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>34. In Pratap Singh Ji N. Desai Vs. Deputy Charity Commissioner Gujarat and another 1987 (supp) SCC 714</b> (para 8) Hon'ble Supreme Court held that "Endowment" is dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment. Dedication need not always be in writing and can be inferred from the facts and circumstances appearing. The property so dedicated to a pious purpose is placed extra-commercium and is entitled to special protection at the hands of the Sovereign whose duty is to intervene to prevent fraud and waste in dealing with religious endowments.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><span style="font-family: "georgia" , "times new roman" , serif;"><b>35. In Menakuru Dasaratharami Reddi and another Vs. Duddukuru Subba Rao and others, AIR 1957 SCR 797</b> (Para 5), Hon'ble Supreme Court considered the requirement of dedication to charity by instrument or grant and held as under:- </span><span style="font-family: "georgia" , "times new roman" , serif;">"5. The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the, private secular character of the property and its complete dedication to charity. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity. Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word "trust" or "trustee" is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. Is the private title over the property intended to be completely extinguished ? Is the title in regard to the property intended to be completely transferred to the charity ? The answer to these questions can be found not by concentrating on the significance of the use of the word "trustee" or "trust" alone but by gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property in favour of public charity, provision is made for the maintenance of the worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole."</span></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>In Kuldeep Chand and another Vs. Advocate General to Government of H.P. and others (2003) 5 SCC 46</b> (paras 21, 38, 40, 42) Hon'ble Supreme Court explained the dedication of property for charitable purpose and held as under:-<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">"21. It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contra-distinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity.(See Menakuru Dasaratharami Reddi vs. Duddukuru Subba Rao,AIR 1957 SC 797).<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">38. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be compete or partial. A right of easement in favour a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">40. Undoubtedly, bequests for construction of a Dharamsala will be for a charitable purpose. It is not necessary that the properties must be dedicated to any particular deity but what is essential is complete dedication for a charitable purpose. Such dedication may be made to an object both religious and of public utility.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">42. When a dedication to a charity is sought to be established in absence of an instrument or grant, the law requires that such dedication be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. It must be proved that the donor intended to divest himself of his ownership in the dedicated property. The meaning of charitable purpose may depend upon the statute defining the same."<o:p></o:p></span></div>
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<span style="background: white;"><span style="font-family: Times, Times New Roman, serif;"><b>WHETHER PERFORMANCE OF CEREMONIES TO DEDICATE A PROPERTY FOR CHARITABLE PURPOSE IS NECESSARY?</b><o:p></o:p></span></span></div>
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<span style="font-family: Times, Times New Roman, serif;">41. The ceremonies relating to dedication for charitable purpose are Sankalpa and Uthsarga. Sankalpa means determination, and is really a formal declaration by the settler of his intention to dedicate the property. Uthsarga is formal renunciation by the founder of his ownership on the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. If Uthsarga is proved to have been performed, the dedication must be held to have been to the public. In Deoki Nandan Vs. Murlidhar and others AIR 1957 SC 133 (paras 14 & 15) Hon'ble Supreme Court held that it is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">4<b>2. In Tilkayat Sri Govindlalji Maharaj Vs. State of Rajasthan and others AIR 1963 SC 1638</b> Hon'ble Supreme Court laid down the law that "a dedication of private property to a charity need not be made by a writing: it can be made orally or even can be inferred from conduct".<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>43. In M. Appala Ramanujacharyula Vs. M. Venkatanarasimhacharyulu and others AIR 1974 (A.P.) 316</b> (para 4) a Division Bench of Hon'ble Andhra Pradesh High Court held that "an endowment can be created by the execution of a deed of dedication by the donor. But however, it must be noted that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid endowment. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>SOURCE:- Allahabad High Court</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>Smt. Vidyawati And Another vs Ram Janki And Others on 24 April, 2019</b><o:p></o:p></span></div>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-57006225992425835262019-05-25T20:15:00.001+05:302019-06-03T10:54:33.723+05:30JOINT FAMILY - SELF ACQUIRED - BURDEN OF PROOF - ENTRIES IN REVENUE RECORD - EVALUATION OF EVIDENCE<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: Times, Times New Roman, serif;">Tripura High Court - Sarada Bala Roy vs Shri Gouranga Chandra Roy on 25 April, 2019</span></div>
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<span style="font-family: Times, Times New Roman, serif;"> HIGH COURT OF TRIPURA AGARTALA - RSA 10 of 2018</span></div>
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<span style="font-family: Times, Times New Roman, serif;">In the instant case, both the courts below held that there is no basic document of title in favour of the parties to the lis. In absence of such title deed in favour of any one of the parties, both the courts below had proceeded with the oral evidence adduced by the parties as well as the exhibited documents, which the contesting parties had produced and proved in course of trial.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">27. From the evidence on record, it is clear that the defendant-appellants are mainly bent upon their claim that the suit land is the self-purchased property of their predecessor, Lt. Lalmohan Roy on the basis of which the Khatain, i.e., the record of right created in favour of them.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">28. In course of trial, a substantial question of law has been formulated, that whether Khatian confers title over any land in favour of any person. In this regard, the law is well-settled. In the long line of decisions, the Apex Court as well as this Court has held that khatian or the mutation or khasra record does not create any title over any property in favour of anyone. Moreover, it is a document to draw presumption of possession, which can be rebutted by way of evidence.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">CITATIONS QUOTED<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"> In Chandrakantaben & Ors. Vs. Vadilal Bappalal Modi & Ors., reported in AIR 1989 SC 1269 , the Apex Court has held that entry in revenue records only describes that a claimant is an occupant only over the land in question, i.e. with respect to ones possession and possession only and not as to title.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">In Navalshankar Ishwarlal Dave & Ors. Vs. State of Gujarat & Ors., reported in AIR 1994 SC 1496, the Apex Court has held that it is the settled law that mutation of the names in the revenue record are not evidence of title though may be relevant for other purposes. The said law is further reiterated in Guru Amarjit Singh vs Ratan Chand & Ors., reported in AIR 1994 SC 227 wherein the Apex Court has held that entries in Jamabandi are not proof of title. They may be relevant for "fiscal purpose".<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"> In Rajinder Singh vs. State of Jammu and Kashmir & Ors., reported in (2008) 9 SCC 368 the law for the said purpose is again discussed and the Apex Court has held inter alia that, it is well settled that an entry in the revenue records does not confer title on a person whose name appears in record of rights. It is settled law that entries in the revenue records or Jamabandi is for only "fiscal purpose" i.e. payment of land revenue and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court. Reliance also may be placed on Suraj Bhan vs. Financial Commr. (2007) 6 SCC 186 (Jattu Ram Vs. Hakam Singh, AIR 1994 SC 1653 relied upon)<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Apex Court in Dayaram & Ors. Vs. Dawalatshah & Ors., reported in AIR 1971 SC 681, wherein it was observed that an order of revenue officer in mutation proceedings based on untrue piece of evidence has no evidentiary value in a civil suit.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Court (when it was under the Gauhati High Court) in Parija Bibi Vs. Santi Ranjan Datta, reported in 1995 (II) GLT 174 (decided on 12.01.1995) had held that "Section 43(3) of the Act envisages that entry in the record of rights as finally published shall be presumed to be correct until the contrary is proved."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Apex Court very recently in the case titled as Bhimabai Mahadeo Kambekar [(Dead) through legal representatives] Vs. Arthur Import and Export company and Ors. reported in (2019) 3 SCC 191 has firmly reiterated as follows: "6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. See. Sawarni Vs. Inder kaur, (1996) 6 SCC 223, Balwant Singh Vs. Daulat singh, (1997) 7 SCC 137 and NArasamma Vs. State of Karnataka, (2009) 5 SCC 591)."</span></div>
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<span style="font-family: Times, Times New Roman, serif;">In view of the legal position propounded here-in-above, it is crystal clear that the Khatian, i.e. the revenue entry created in favour of the appellant-defendant will not confer title upon them over the suit land and only it carries a presumptive value of possession which also may be put to challenge by way of rendering evidence by the party challenging the said entry in a civil suit. ... The aforesaid proposition of law led me to look into the evidence as put forth by the plaintiffs whether they have discharged their obligation or liability to rebut the presumption that the suit land was/is solely possessed by the defendant-appellants.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">COURT FINDS FOLLOWING IN EVIDENCE<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">1. From her evidence, it is established that the plaintiff entered into the suit land as the legal heir of Lt. Manmohan Roy about 15 years back, from the date the said witness deposed before the Court. In her deposition, she has asserted that her husband allowed the plaintiff to stay in their western viti hut for few days. She denied that the plaintiff was given 8 annas share, i.e. 50% of the suit land held by his father.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">2. Noticeably, from her evidence one fact has come to light that the plaintiff has been in possession of a portion of the suit land.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">3. After the death of Lalmohan Roy, a new record of right was created in favour of the legal heirs, i.e. the defendants............ On the basis of these documents, the defendant-appellants have claimed title over the suit land.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">4. It is the clear unequivocal assertion of the defendant, i.e. DW1, that the suit land is the self-acquisitioned land of her husband Lt. Lalmohan Roy, who purchased the same out of his own income but both the learned courts below have found that the defendants did not press into evidence the said purchase deed which allegedly conferred her husband's title over the suit land.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">5. Both the courts below, after considering the exhibits...... the evidentiary value of the said documents in regard to creation of title over the suit land and came to the conclusion that these documents do not confer title of Lt. Lalmohan Roy over the suit land. ........... I do not find any infirmity in the conclusion that the courts below have arrived at rejecting those documents as documents of title. Consequently, the findings in this regard arrived at by both the courts below should not be said to be perverse.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">6. It is the definite case of the plaintiff that the suit property is the ancestral property devolved on the two brothers, Lt. Manmohan Roy and Lt. Lalmohan Roy and both of them being the joint owners of the suit land, 50% of the land which was owned and possessed by Lt. Manmohan Roy has to divest to the plaintiffs.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">7. True it is, that the person who asserts and alleges any property to be Hindu joint family property has to prove the same. In order to be successful in this, he should prove that the property was inherited from the common ancestor and as such being ancestral property, it should be presumed to be a joint family property. Law presumes jointness. The defendants who deny the same have to dislodge the presumption.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">8. A Bench of the Hon'ble patna High Court in Chito Mahto & Ors. Vs. Lila Mahto & Ors. reported in AIR 1991 Pat 186 held that in absence of any document of settlement, the court has to draw a presumption that the properties in question were ancestral properties, especially when it is clear from the deposition of the witnesses examined on behalf of the defendants that the plaintiff has also been in possession of the land.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">9. The concept of joint family is common both in Mitakshara and Dayabhaga law. The difference is that in Mitakshara law the essence of a co-parcener lies in unity of ownership but in Dayabhaga School of law, the joint family exists in unity of possession. It is the unity of possession that makes them co-parceners. So long as there is unity of possession no co-parcener in or under the Dayabhaga law can say that a particular share in the property belongs to him.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">10. Patna High Court in Batai Bala Dasi & Ors. Vs. Chabilal Sen & Ors., reported in AIR 1974 Patna 147 wherein the said court has held on the subject as follows: "Every coparcener takes a defined share in the property, and he is owner of that share. When share is defined immediately the inheritance falls in. It does not fluctuate with births and deaths in the family. Even before partition, any coparcener can say that he is entitled to a particular share, one-third or one-fourth".</span></div>
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<span style="font-family: Times, Times New Roman, serif;">11. On perusal of the evidence of the plaintiff, it appears that the evidence of the plaintiff is consistent without any exaggeration or improvement. On the contrary, the evidence of DW1, i.e. the defendant No.1 is very cryptic and she avoided giving any direct answer to the question both in her examination-in-chief and cross- examination.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">12. At this juncture, if this court looks back, the legal principle in this regard is that in absence of any document of settlement of title, the court has to draw presumption that the properties in question were ancestral properties especially when it is clear from the deposition of the witnesses examined on behalf of the defendants that the plaintiff has also been in possession of the land. ............... On recapitulation of the legal position as delineated in the preceeding paragraphs it can easily be said that in absence of any document of title this Court may draw a presumption that the suit land in question was ancestral property of the plaintiff as well as the defendants.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">13. Section 91 of the Evidence Act mandates that if the content of any document is required by law to be reduced in a form of document, no evidence is required to be given except the document itself. <o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">14. Naturally, she being the defendant adduced evidence after the completion of the evidence of the plaintiff and his witnesses. She was well aware of the evidence adduced by the plaintiff and his witnesses. In their evidence, they elaborately discussed about the chequered history of the suit land, how it was originated and how it has been devolved to the father of the plaintiff and as well as the husband of the defendant No.1, who is the father of the other defendants. But in course of her evidence, she did not controvert the statements of PWs except some vague and omnibus statements.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">15. That apart, although a document may be inadmissible in evidence for want of its compulsory registration, but such a document can be used for collateral purpose to prove the intention of the coparceners to become divided in status and that they had ceased to be joint from the date of the instrument. Although the partition deed (Bantannama) being an unregistered document is inadmissible in evidence, the oral evidence to prove separation in status of the parties and an agreement between them to enjoy the joint family property in separation can be proved and is not hit by any bar contained in Section 91 of the Evidence Act. [Reliance is placed on AIR 1993 M.P. 65 at pp. 66, 67]<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">16. Apex Court in Achuthan Nair Vs Chinnamu Amma reported in AIR 1966 SC 411 where the Apex Court in para 7 has held:"........................ Under Hindu law when a property stands in the name of a member of the joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property..............."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">17. Mudi Gowda Gowdappa Sankh vs. Ramchandra Ram Chandra Ravagowda Sankh reported in (1969) 1 SCC 386 wherein the Apex Court at para 6 has held thus:"The Hindu law upon this aspect of the case is well settled. Prove of existence of joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item or property was joint to established the fact. But where it is established that a family possessed some joint property which from its nature and relative value may have found the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">18. So far as the legal proposition is concerned, there is no gainsaying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. [See AIR 2007 SC 218 at pp.225, 226]<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">19. A Hindu family is legally presumed to be joint unless otherwise proved. So, the burden was on the defendants to establish that there was a complete partition. Defendants failed to produce any document or reliable oral evidence of partition. When positive evidence were available on the jointness of the family and there is no evidence regarding partition, Courts below had legal jurisdiction to ignore the pleading and record the finding on the evidence available on record. [See AIR 2007 Orissa 15 at pp. 17, 18]<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">20. More so, whenever in any suit or proceeding the dispute is whether certain property is joint-family property, or separate property the question upon whom the onus or burden of proof lies naturally arises. The onus is regulated by the general principles embodied in Sections 101 to 104 of the Indian Evidence Act, 1872, viz. the proof of any particular fact lies on the party who alleges it, not on him who denies it. Where, however, the Court ought to make any presumption under Section 114 of the said Act, the burden shifts according to the nature of presumption made. In the instant case, the defendants have failed to dislodge the presumption drawn in favour of the plaintiff that the suit land is a joint family property.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">21. In the circumstances of the present case, I reiterate that when the claim of the defendant is specific to the extent that the suit land is a self-acquired property, which, according to her, was purchased by her deceased husband out of his own income, then, it is the burden upon her to prove substantially and by way of production of documentary evidence before the Court to establish that it is self-acquired property and purchased out of his own income and not related to the income of the joint property.</span><o:p></o:p></div>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-1731570901508274752015-10-29T18:49:00.000+05:302015-10-29T18:49:08.330+05:30HINDU DAUGHTERS RIGHT TO PROPERTY REDIFINED<p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"><a title="View Daughter Should Be Alive and Her Father Should Also Be Alive on the Date of the Amendment to Confer Equal Rights as Coparcener 2015 Sc on Scribd" href="https://www.scribd.com/doc/287698214/Daughter-Should-Be-Alive-and-Her-Father-Should-Also-Be-Alive-on-the-Date-of-the-Amendment-to-Confer-Equal-Rights-as-Coparcener-2015-Sc" style="text-decoration: underline;" >Daughter Should Be Alive and Her Father Should Also Be Alive on the Date of the Amendment to Confer Equal R...</a></p><iframe class="scribd_iframe_embed" src="https://www.scribd.com/embeds/287698214/content?start_page=1&view_mode=scroll&show_recommendations=true" data-auto-height="false" data-aspect-ratio="undefined" scrolling="no" id="doc_13598" width="100%" height="600" frameborder="0"></iframe>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-70416380785534241322015-10-28T14:02:00.000+05:302019-06-03T10:56:55.862+05:30THE PLEADINGS AND ITS IMPORTANCE IN CIVIL CASES<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: Times, Times New Roman, serif;">In Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors, 2011 (6) SCALE 677 highlighting how frivolous litigations are being instituted and how these frivolous litigations are choking the stream of justice, with reference to importance of pleadings, in sub-para A of para 52 of the decision, the Supreme Court observed as under:- "A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and documents filed by the parties. This must be done immediately after suits are filed."</span></div>
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<span style="font-family: Times, Times New Roman, serif;">In Ram Sarup Gupta (Dead) by LRs vs. Bishun Narain Inter College & Ors 1987 (2) SCC 555, highlighting the object and purpose of pleadings, in para 6, the Supreme Court observed as under:- "6. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise."</span></div>
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<span style="font-family: Times, Times New Roman, serif;">In D.M. Deshpande & Ors vs. Janardhan Kashinath Kadam & Ors AIR 1999 SC 1464 , in paras 9 and 11, the Supreme Court highlighted that a vague plea does not justify an issue being framed and further, where no material in support of a plea has been set up anywhere in any form, the Court would be justified in not settling an issue requiring the parties to traverse the torturous path of a trial. In said case, the Supreme Court observed qua claim for tenancy that in the absence of a concise statement of material facts relating to the tenancy, the mere raising of a plea of tenancy is not enough for the purpose of raising an issue. The Court cautioned against a pedantic approach to the problem and directed that Courts must ascertain the substance of the pleading and not the form, in order to determine the same. It was observed that pertaining to a claim of tenancy, the exact nature of the right which is claimed is to be set-forth and no issue pertaining to existence of tenancy could be framed on a vague plea.</span></div>
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<span style="font-family: Times, Times New Roman, serif;">In A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam 2012 (6) SCALE 340 it was held as under:- "27. The pleadings must set-forth sufficient factual details to the extent it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands."</span></div>
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<span style="font-family: Times, Times New Roman, serif;">Maria Margarida Sequeria Fernandes vs. Erasmo Jack de Sequeria 2012 (5) SCC 370 the Supreme Court held as under:-</span></div>
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<span style="font-family: Times, Times New Roman, serif;">"72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.</span></div>
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<span style="font-family: Times, Times New Roman, serif;">74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject claim or pass decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.</span></div>
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<span style="font-family: Times, Times New Roman, serif;">78. The Court must ensure that the pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence." </span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>NO AMOUNT OF EVIDENCE OR ARGUMENT IN THE ABSENCE OF PLEADINGS CAN BE GONE INTO BY THE COURT</b></span></div>
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<span style="font-family: Times, Times New Roman, serif;">In Trojan & Co. Ltd. V. Rm. N. N. Nagappa Chettiar, AIR 1953 SC 235, the Supreme Court held that decisions cannot be founded on grounds outside the pleadings and what has to be considered or granted is the case pleaded. It was also held that without amendment of the pleading in light of facts disclosed or discovered subsequently, the Court would not be entitled to modify or alter the relief claimed. This was based on a previous ruling of the Privy Council in Mahant Govind Rao v. Sita Ram Kesho and Ors., (1898) 25 IA 195 (PC). These rulings were subsequently followed in Ram Kumar Barnwal </span><span style="font-family: Times, "Times New Roman", serif;">v. Ram Lakhan (dead), 2007 (5) SCC 660.</span></div>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-6541887283788523072015-09-22T21:44:00.003+05:302019-06-03T10:55:04.946+05:30OMISSION OF A SINGLE MATERIAL FACT LEADS TO AN INCOMPLETE CAUSE OF ACTION 1969 SC<div dir="ltr" style="text-align: left;" trbidi="on">
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SAMANT N.BALKRISHNA AND ANOTHER V GEORGE FERNANDEZ AND OTHERS 1969 (3) SCC 238 with regard to showing in the election petition the concise statement of material facts with reference to Section 83 of the Act, 1951, wherein it was held thus: “The Section is mandatory and requires first a concise statement of material facts and then requires the fully possible particulars. What is the the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.”<br />
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-31688053846921011962015-09-21T19:20:00.001+05:302015-09-21T19:20:20.676+05:30SECTION 151 OF THE CODE CANNOT BE ROUTINELY INVOKED FOR REOPENING EVIDENCE OR RECALLING WITNESSES - SCOPE OF 151 - SC 2011 <div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">K.K. Velusamy vs N. Palaanisamy 2011 (4 ) SCR 31 = 2011 (11 ) SCC 275 We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899;Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:<br />
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.<br />
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.<br />
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.<br />
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.<br />
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.<br />
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</div><script type="text/javascript">
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-67149939173108297422015-09-21T19:17:00.001+05:302015-09-21T19:17:05.411+05:30PROCEDURAL DEFECTS WHICH DO NOT GO TO THE ROOT OF THE MATTER SHOULD NOT BE PERMITTED TO DEFEAT A JUST CAUSE<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Supreme Court in United Bank of India v. Naresh Kumar and Others (AIR 1997 SC 3) held that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the court under the Code of Civil Procedure to ensure that injustice is not done to any parties who has a just cause. The original of the power of attorney is subsequently produced in this court and according to me the contention on the question of maintainability - that the suit is not maintainable due to the non competence of the signatory to the plaint cannot any longer survive.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-44698360352975769162015-09-21T18:58:00.001+05:302015-09-21T18:58:10.967+05:30COURTS INHERENT POWER INCLUDES POWER TO RECTIFY ITS MISTAKES<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Jagannatha Shetty, J. in State of Karnataka v. Balekal Krishna Bhat ((1975) 2 Kant LJ 489) in which he affirmed an order made by the trial Court exercising the inherent Powers in setting aside the order of dismissal of a reference made under Section 18 of the Land Acquisition Act: "If the Court commits a mistake thereby causing injustice to any party before it, the Court would be under legal obligation to correct such mistake so as to render justice to the party. The power conferred by Section 151 is meant for that purpose."<br />
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Kariyanna vs Isthuri Subbaiahsetty And Ors. AIR 1981 Kant 234, 1981 (1) KarLJ 66 A Judge owes it to himself and the litigant public to correct his own mistake when once the same is brought to his notice and he will be failing in his duty if he does not do so and sticks to his previous order, as if he is infallible. A Judge should approach the same in all humility and rectify the mistake if he is convinced of the same.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-50418107010218112212015-09-21T18:57:00.001+05:302015-09-21T18:57:34.238+05:30DOCTRINE OF ESTOPPEL<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420, this Court considered a large number of judgments on the issue of estoppels and held as under: “A party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience….. ……….The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.”<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-55359034719637094132015-09-21T18:56:00.001+05:302015-09-21T18:56:47.839+05:30CLEAN HANDS OF LITIGANT<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236).<br />
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In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.<br />
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The truth should be the guiding star in the entire judicial process. “Every trial is a voyage of discovery in which truth is the quest”. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).<br />
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In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held: “False claims and defences are really serious problems with real estate litigation, predominantly because of ever- escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.”<br />
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Equivalent citations: ILR 2004 KAR 2215, 2004 (4) KarLJ 189<br />
Author: N Jain<br />
Bench: N Jain, V Sabhahit<br />
In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-24494930727169237252015-09-21T18:54:00.001+05:302015-09-21T18:54:59.105+05:30WHAT IS MATERIAL FACTS IN A PLEADING<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Sopan Sukhdeo Sable & ors vs. Assistant Charity Commissioner - (2004) 3 SCC 137 There is distinction between 'material facts' and 'particulars'. The words 'material facts' show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. …………. Court in Samant N. Balkrishna v. George Fernandez (1969 (3) SCC 238), the distinction between "material facts" and "particulars" was brought out in the following terms:<br />
The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-12283722665660532582015-09-21T18:49:00.001+05:302015-09-21T18:49:56.202+05:30JUDICIAL PROCEEDINGS CANNOT BE USED TO PROTECT OR TO PERPETUATE A WRONG<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Shiv Kumar Chadha v. MCD (1993 (3) SCC 161) wherein it was observed that injunction is discretionary and that: "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".<br />
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Mahadeo Savlaram Sheike v. Pune Municipal Corporation (1995 (3) SCC 33) "It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-74502655260204368032015-09-21T18:36:00.001+05:302015-09-21T18:36:37.376+05:30TRANSFER OF PROPERTY ACT IS NOT AFFECTED BY PERSONAL LAW<div style="width: 500px; height: 150px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">RADHAKISHAN LAXMINARAYAN TOSHNIWAL vs. SHRIDHAR RAMCHANDRA ALSHI AND OTHERS reported in AIR 1960 SC 1368, wherein it is held that the transfer of property, where the Transfer of Property Act applies, has to be under the provisions of the said Act only; the Mohammedan Law of transfer of property cannot override the statutory law. It has expressed the considered view that wherever the Transfer of Property Act is in force, the Mohammedan Law or any other personal law is inapplicable to the transfer of properties, this judgment is followed subsequently by the Hon'ble Apex Court in the case of KUMAR GONSUSAB vs. MOHAMMED MIYAN URF BABAN reported in AIR (SCW) - 2008-0-6311.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-79980615337078474032015-04-09T10:24:00.001+05:302015-04-09T10:24:10.016+05:30CASE LAW ON CHILD CUSTODY IN INDIA<div dir="ltr" style="text-align: left;" trbidi="on">
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WHEN CUSTODY OF CHILD IS ORDERED BY FOREIGN COURT – INDIAN COURT JURISDICTION<br />
(1998) 1 SUPREME COURT CASES 112-DHANWANTI JOSHI VS. MADGHAV UNDE, certain excerpts from it would run thus: “B.Guardians and Wards Act, 1980 S.17 Custody of child Removal of the child from one country to another country to custody order of the court from where child removed Where mother removing the child from USA to India while father obtaining an order from US Court to have custody of the child in USA, held, court in India has to take an independent decision on merits on the basis of an elaborate inquiry in regard to custody of the child having regard to the child's welfare which should be the factor of paramount importance and also the order of the foreign court as only one of the other factors for consideration If, however, the court in India thinks it fit to undertake a summary inquiry in the interest of the child, it may order return of the custody of the child to the country wherefrom he was removed Whether to conduct a summary inquiry or an elaborate inquiry has to be decided by the court having regard to the child's welfare This position prevails till India is not a signatory to the Hague Convention of 1980 on 'Civil Aspects of International Child Abduction' which requires return of the child wrongfully removed or retained in another contracting State to the country from where the child was removed Private International Law Child custody.”<br />
ORDER OF CUSTODY IS NOT FINAL IT CAN BE MODIFIED AT ANY STAGE WITH REASONS<br />
(1998) 1 SUPREME COURT CASES 112-DHANWANTI JOSHI VS. MADGHAV UNDE : It is no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at an future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child [Rosy Jacob vs. Jacob a. Chakramakkal (1973 (1) SCC 840)]. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting anew case before the court. It must be established that the previous arrangement was not conductive to the child's welfare or that it has produced unsatisfactory results.<br />
<br />
NOT MERELY PHYSICAL CUSTODY OF THE MINOR BUT DUE PROTECTION OF THE RIGHTS OF WARD'S HEALTH, MAINTENANCE AND EDUCATION<br />
In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.<br />
COURT TO DECIDE WHAT WILL ENURE TO THE BENEFIT AND WELFARE OF THE CHILD<br />
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child. …….. <br />
<br />
CHILDREN ARE NOT MERE CHATTELS NOR ARE THEY TOYS FOR THEIR PARENTS<br />
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 S.C.C. 42. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.<br />
WELFARE OF MINOR SON IS IMPORTANT EVEN THOUGH FATHER IS NATURAL GUARDIAN OF MINOR SON<br />
In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6].<br />
PARAMOUNT CONSIDERATION IS THE WELFARE AND INTEREST OF THE CHILD AND NOT THE RIGHTS OF THE PARENTS UNDER A STATUTE <br />
Mausami Moitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634) The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.<br />
WHEN CHILDREN ARE INTELLIGENT ENOUGH TO EXPRESS THEIR PREFERENCE<br />
In Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) 3 SCC 573, custody of two minor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A, Indian Penal Code. Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the father. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated; "After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage".<br />
<br />
COURT NOT BOUND BY THE MERE LEGAL RIGHT OF THE PARENT OR GUARDIAN FOR DECIDING CHILD CUSTODY<br />
In Kamla Devi v. State of Himachal Pradesh, AIR 1987 HP 34, the Court observed; "The Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other". <br />
In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148, the High Court observed that it is true that father is a natural guardian of a minor child and therefore has a preferential right to claim custody of his son, but in the matters concerning the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.<br />
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IT IS A HUMANE PROBLEM AND IS REQUIRED TO BE SOLVED WITH HUMAN TOUCH<br />
NIL RATAN KUNDU AND ANOTHER vs. ABHIJIT KUNDU (2008) 9 SCC 413 In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.<br />
M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to `human touch'. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.<br />
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WELFARE OF THE MINOR CHILD IS THE PARAMOUNT CONSIDERATION AND SUCH A QUESTION CANNOT BE DECIDED MERELY BASED UPON THE RIGHTS OF THE PARTIES<br />
Anjali Kapoor v. Rajiv Baijal, reported at (2009) 7 SCC 322, "15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law.”<br />
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PRINCIPLE OF ESTOPPEL IS NOT APPLICABLE TO ORDERS ON CHILD CUSTODY<br />
In Rosy Jacob vs. Jacob A.J.Chakramakkal {1973 (1) SCC 840}, the Supreme Court made it clear that the principle of estoppel found in Section 115 of the Indian Evidence Act, is not applicable to orders relating to custody of minor children.<br />
<br />
Supreme Court in JIJABAI v. PATHANKHAN 1971 AIR 315, 1971 SCR (2) 1: held that mother can act as natural guardian and the Supreme Court held as under:- "We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same."<br />
<br />
The Supreme Court in GITHA HARIHARAN v. RESERVE BANK OF INDIA (1999) 2 SCC 228 considered the expression, 'guardian' as well as 'natural guardian' and section 6 of the Hindu Minority and Guardianship Act, 1956 and held as under (paras 7 to 10 and 16):- "7. The expression 'natural guardian is defined in section 4(c) of HMG Act as any of the guardians mentioned in section 6 (supra). The term 'guardian' is defined in section 4(b) of HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of 'guardian' and 'natural guardian' do not make any discrimination against mother and she being one of the guardians mentioned in section 6 would undoubtedly be a natural guardian as defined in section 4(c). The only provision to which exception is taken is found in section 6(a) which reads "the father, and after him, the mother" (underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the lifetime of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of the welfare of the minor. 8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word "after" in the section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of section 6(a). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime. 9. Is that the correct way of understanding the section and does the word 'after' in the section mean only 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of sex? In our opinion - No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. 10. We are of the view that the section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word, 'after' need not necessarily mean 'after the lifetime'. In the context in which it appears in section 6(a) (supra), it means 'in the absence of', the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of sections 4 and 6 of HMG Act, without causing any violence to the language of section 6(a). 16. While both the parents are duly bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations whether the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written)and the minor is in exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be 'absent' for the purpose of section 6(a) of HMG Act and section 19(b) of GW Act."<br />
<br />
In Keshav R.Thakur and Anr. v. Suchhibai [2005 9 S.C.C. 424], at paragraph 5, it is observed as follows: 5. ...As the grandparents have by reason of interim order or otherwise remained in care and control of the minor Appellant 2 for his entire life, it will not be appropriate to grant custody of the child to the mother at this stage. Appellant 1, however, will allow the mother to meet the child whenever the respondent approaches them for the purpose.<br />
<br />
In Sheila B.Das v. P.R. Sugasree reported in 2006 (3) SCC 62, it is held as follows: "There is no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent's company and has also been doing consistently well in school. The respondent appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. In the cases cited by the appellant, the father on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the courts keeping in view the fact that the paramount consideration in such cases was the interest and well being of the minor. The interest of the minor in this case will be best served if she remains with the respondent father but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. Accordingly, the appeal is dismissed of by retaining the order passed by the Family Court with certain modifications."<br />
<br />
2006 (13) SCC 555 (LEKHA V. P.ANIL KUMAR), wherein it has been held as follows: “19.The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody. 20. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.”<br />
<br />
In Keshav R.Thakur and Anr. v. Suchhibai [2005 9 S.C.C. 424], at paragraph 5, it is observed as follows: 5. ...As the grandparents have by reason of interim order or otherwise remained in care and control of the minor Appellant 2 for his entire life, it will not be appropriate to grant custody of the child to the mother at this stage. Appellant 1, however, will allow the mother to meet the child whenever the respondent approaches them for the purpose.<br />
<br />
In Sheila B.Das v. P.R. Sugasree reported in 2006 (3) SCC 62, it is held as follows: "There is no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent's company and has also been doing consistently well in school. The respondent appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. In the cases cited by the appellant, the father on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the courts keeping in view the fact that the paramount consideration in such cases was the interest and well being of the minor. The interest of the minor in this case will be best served if she remains with the respondent father but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. Accordingly, the appeal is dismissed of by retaining the order passed by the Family Court with certain modifications."<br />
<br />
In Kumar V.Jahgirdar v. Chethana Ramatheertha reported in 2004 (2) SCC 688, while considering a plea whether re-marriage of the mother was detrimental to the welfare of the child, at Paragraph 11, the Supreme Court observed that, "The High Court has taken into consideration all other relevant facts and circumstances to come to the conclusion that a female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification for it."<br />
<br />
In Mausami Moitra Ganguli v. Jayant Ganguli reported in 2008 (7) SCC 673, the appellant mother was living separately on account of cruelty of the respondent father and got an ex parte decree of divorce which attained finality. Though the Family Court gave the custody to the appellant-mother, the High Court in appeal, by the impugned order set aside the order of the Family Court and granted permanent custody of the child to the respondent father and only visitation rights were given to the mother. On appeal, at Paragraphs 19 to 23 and 26, the Apex Court held as follows: "19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.<br />
<br />
In R. Kasthuri v. R. Raveendran [A.I.R. 2003 Mad 302], in paragraphs 10 and 11, it is observed as follows: “10. It is axiomatic that the welfare of the child is of paramount consideration. The way in which the boy answered the questions shows that he is an intelligent boy and he knows his preference. He has been living with his mother for the past 12 years and his educational needs have been taken care of by his mother. There is absolutely no evidence of ill-treatment by her, but on the other hand, the boy's statement shows that his care has been taken very well by his mother and her relatives. His statement also shows that he is doing well in the class and if the boy is uprooted now and placed in the custody of the father, we are of the view that that will unsettle his educational career and his future prospects also. Though both the parents are affectionate to the child, it is clear that the child has been brought up by the mother all along from the childhood. We are of the view that if the child is taken away from the custody of the mother, it would affect his personal and educational career and we therefore hold that the custody of the child should continue to be with the mother.”<br />
<br />
In Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed: "A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody."<br />
<br />
Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words "subject to the provisions of this section" in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor.<br />
<br />
In the case of Gaurav Nagpal v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before the Court by the father of the minor child that the child had been in his custody for a long time and that a sudden change in custody would traumatize the child. The Court did not find favour with this argument. The Court observed that the father of the minor child who retained the custody of the child with him by flouting Court orders, even leading to institution of contempt proceedings against him, could not be allowed to take advantage of his own wrong.<br />
<br />
Mausami Moitra Ganguli v. Jayant Ganguli, [AIR 2008 SC 2262]. The Court held: "We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him."<br />
<br />
R.V. Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC 1056]. The Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grandparents, this Court held: "The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately."<br />
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-7892864474558780990.post-55746846801586014652015-04-08T14:25:00.000+05:302015-04-08T14:25:08.293+05:30WHAT ARE THE LEGAL ASPECTS TO BE TAKEN CARE FOR BEFORE FRAMING ISSUES BY COURT <div dir="ltr" style="text-align: left;" trbidi="on">
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IN THE ABSENCE OF PLEADINGS NO ADJUDICATION<br />
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Apex Court in the matter of State Bank of India vs. S.N.Goyal, reported in AIR 2008 SC 2594, "In the absence of appropriate pleadings on a particular issue, there can be no adjudication of such issue in a Civil suit"<br />
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ADMISSION IN PLEADING AND DOCUMENT<br />
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In Gautam Sarup v. Leela Jetly [(2008) 7 SCC 85], Court held: "14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore."<br />
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THING ADMITTED NEED NOT BE PROVED<br />
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Seth Ramdayal Jat vs. Laxmi Prasad, reported in AIR 2009 SC 2462, Section 58 of the Indian Evidence Act reads as under: "58 - Facts admitted need not be proved No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission." In view of the aforementioned provision, there cannot be any doubt or dispute that a thing admitted need not be proved. [See Vice-Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal Yadav (2004) 6 SCC 325, L.K. Verma v. HMT Ltd. and Another (2006) 2 SCC 269,Avtar Singh and Others v. Gurdial Singh and Others (2006) 12 SCC 552, Gannmani Anasuya and Others v. Parvatini Amarendra Chowdhary and Others (2007) 10 SCC 296]<br />
<br />
NO EVIDENCE NOR ANY ARGUMENT CONTRARY TO THE PLEADINGS CAN BE LOOKED INTO <br />
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A party cannot travel outside its pleadings and no amount of evidence is tenable if not pleaded. In the absence of a clear plea no amount of evidence, led in relation thereto, can be looked into and the respondent cannot be allowed to build up a case on a non-existent plea. No party can be permitted to travel beyond its pleading and all necessary and material facts should be pleaded by the party in support of the case set up by it.<br />
AIR 1970 SC 2025 Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas & Ors, <br />
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2003 (4) SCC 161 Bondar Singh & Ors. v. Nihal Singh & Ors.<br />
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2003 (10) SCC 653 Rajgopal v. Kishan Gopal & Anr. wherein it is held that in case of vague pleadings no lis exists between the parties on the question and the court could not go into the same even if some evidence was adduced. The petitioners in their rejoinder have expanded the scope of their present challenge to other factors. The petitioners contended that these two arguments are to be found in their pleadings and they need not argue the same. It is submitted that the point for determination is to be made with respect to only those points which have been argued. Merely raising points in the pleadings are not sufficient if the same have not been argued. <br />
<br />
(1987) 2 SCC 555 Ram Sarup Gupta<br />
<br />
Hon'ble Supreme Court in Muthiah M.ct. v. Controller of E.D. Madras (AIR 1986 SC 1863) that factual contentions cannot be permitted to be made for the first time through oral submissions particularly when the same is not to be found in the pleadings.<br />
<br />
Hon'ble Supreme Court in the case of Banarsi Das and Anr. v. Kanshi Ram and Ors. (AIR 1963 SC 1165) and in S.S. Sharma v. Union Bank of India (AIR 1981 SC 588) wherein the Hon'ble Supreme Court has clearly laid down that a new plea, which were not purely one of few but a mixed question of law and fact should not have been allowed to be raised for the first time at the stage of arguments and the same is in violation of the principle of natural justice. The Petitioners in their rejoinder have stated that they have mentioned in the pleading that the said transfer have been made in violation of provision contained in Article of Association which is technical objection. The Respondents submit that the said contention of the Petitioners do not cure the defect in the pleadings. The pleadings stating that the provisions in the articles of association have been violated, without pointing out the relevant article, amounts to vague pleadings. A person says that the provisions of Companies Act, 1956 are violated, is not sufficient for a court to adjudicate unless the specific provisions is pointed out.<br />
<br />
<br />
<br />
LACK OF DETAILS IN THE PLEADINGS CANNOT BE A GROUND TO REJECT A CASE. <br />
2010 (2) SCC 689(Sree Swayam Prakash Ashramam & Anr. v. G. Anandavally Amma & Ors.), <br />
AIR 2013 SC 2028 (Joseph John Peter Sandy v. Veronica Thomas Rajkumar & Anr.) <br />
AIR 1999 SC 3325 (Hari Singh v. Kanhaiya Lal). <br />
<br />
DESPITE ABSENCE OF SPECIFIC ISSUE WHEN THE PARTIES ARE NOT TAKEN BY SURPRISE THE ISSUE CAN BE RAISED AND DECIDED.<br />
<br />
2010 (2) SCC 689 Sree Swayam Prakash Ashramam & Anr. v. G. Anandavally Amma & Ors. <br />
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HOW ADMISSION IS BEST PIECE OF EVIDENCE<br />
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Admission is the best piece of evidence against the persons making admission. While evidentiary admissions are not conclusive proof of the facts admitted, and may be explained or shown to be wrong, they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. (Samir Chandra Chaudhary (2005) 5 SCC 784 )<br />
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JURISDICTION OF CIVIL COURT<br />
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In Ramesh Gobindram (deceased by LRs) vs. Sugra Humayun Mirza Wakf reported in AIR 2010 SC 2897 Hon'ble Apex Court has observed in Paragraphs 5 and 6 that "the well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a Civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that civil Court's jurisdiction is ousted.<br />
Hon'ble Apex Court in State of West Bengal vs. The Indian Iron and Steel Company Limited reported in AIR 1970 SC 1298 has clearly observed that even if the jurisdiction of Civil Court is excluded where the statute gives a finality to the order of special Tribunal in the matter of levy of tax, the Civil Court cam examine the cases where statutory provisions have not been complied with or statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. Hon'ble Apex Court relied upon the decision of Privy Council reported in AIR 1940 PC 105 in Secretary of State vs. Mask and Company. It has been observed therein that "it is settled law that the exclusion of jurisdiction of a Civil Court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled as observed by His Lordship that even if the jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure".<br />
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REJECTION OF PLAINT<br />
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The law with regard to Order VII Rule 11 CPC is well settled. While dealing with an application for rejection of plaint under Order VII Rule 11 CPC, the court has to consider only the averment in the plaint and not the defence of the defendant or the contents of the application under Order VII Rule 11 CPC. In C. Natrajan v. Ashim Bai reported at (2007) 14 SCC 183, the Apex Court has observed: "8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn. (2005) 7 SCC 510]"<br />
A similar view was expressed in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express reported in (2006) 3 SCC 100 wherein the Apex Court observed as under: "11. Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court. <br />
In T. Arivandandam v. T.V. Satyapal (1977 (4) SCC 467) Court has held that if on a meaningful, not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. <br />
In Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487) Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court therein could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order 6 Rule 16 to strike out the paragraphs in the absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. <br />
In ITC Ltd. v. Debts Recovery Appellate Tribunal (1998 (2) SCC 70) it was held that the basic question to be decided while dealing with an application filed by the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. <br />
In Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003 (1) SCC 557) it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. <br />
In Popat and Kotecha Property v. State Bank of India Staff Assn (2005) 7 SCC 510] Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. …………… From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants.<br />
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0