SUPREME COURT OF INDIA
YASH VARDHAN MALL VS TEJASH DOSHI ON
23 NOVEMBER, 2017
23 NOVEMBER, 2017
Facts of the Case:
A Will was executed by Smt. Shrutika
Doshi on 01.03.2013 by which she appointed her husband, the sole Respondent
herein, as the executor and trustee. Her minor daughters were made the
beneficiaries.
Doshi on 01.03.2013 by which she appointed her husband, the sole Respondent
herein, as the executor and trustee. Her minor daughters were made the
beneficiaries.
It was mentioned in the Will that in
case the Respondent is unable to carry out or act as the sole executor by
giving effect to the Will and testament, the Appellant shall become the sole
executor.
case the Respondent is unable to carry out or act as the sole executor by
giving effect to the Will and testament, the Appellant shall become the sole
executor.
The Will dated 01.03.2013 was
registered with the Sub-Registrar of Assurance at Calcutta on 25.05.2013. Smt.
Shrutika Doshi died on 26.05.2013. Another Will executed by Smt. Shrutika Doshi
on 22.04.2013 surfaced wherein the Respondent was appointed as the sole
executor and in case he is unable to act as the sole executor his father would
replace him.
registered with the Sub-Registrar of Assurance at Calcutta on 25.05.2013. Smt.
Shrutika Doshi died on 26.05.2013. Another Will executed by Smt. Shrutika Doshi
on 22.04.2013 surfaced wherein the Respondent was appointed as the sole
executor and in case he is unable to act as the sole executor his father would
replace him.
The petition filed by the Appellant
for grant of probate of the Will dated 01.03.2013 was dismissed by the District
Judge, Alipore on 17.04.2017. An appeal has been filed against the said order
which is pending in the High Court at Calcutta.
for grant of probate of the Will dated 01.03.2013 was dismissed by the District
Judge, Alipore on 17.04.2017. An appeal has been filed against the said order
which is pending in the High Court at Calcutta.
A learned Single Judge of the High
Court at Calcutta heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for
discharge of caveat. By an order dated 28.06.2017, the learned Single Judge
allowed the application filed by the Respondent and discharged the caveat.
Court at Calcutta heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for
discharge of caveat. By an order dated 28.06.2017, the learned Single Judge
allowed the application filed by the Respondent and discharged the caveat.
The appeal filed against the said
order dated 28.06.2017 was disposed of by a Division Bench of the High Court
holding that there was no reason to interfere with the order of the learned
Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby
the Appellant has approached this Court.
order dated 28.06.2017 was disposed of by a Division Bench of the High Court
holding that there was no reason to interfere with the order of the learned
Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby
the Appellant has approached this Court.
An affidavit filed in support of the
caveat according to Rule 25 shall state the right and interest of the caveator
and the grounds of the objections to the application. The affidavit filed in
support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed
her last Will and testament on 01.03.2013 which was registered on 22.05.2013.
caveat according to Rule 25 shall state the right and interest of the caveator
and the grounds of the objections to the application. The affidavit filed in
support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed
her last Will and testament on 01.03.2013 which was registered on 22.05.2013.
There is a reference to the Will
dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her
last Will and testament. It was further mentioned in the affidavit that the
Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the
last Will and testament of Smt.Shrutika Doshi.
dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her
last Will and testament. It was further mentioned in the affidavit that the
Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the
last Will and testament of Smt.Shrutika Doshi.
The right and interest of the
caveator as the executor of rival Will dated 01.03.2013 have been mentioned in
the affidavit filed in support of the caveat and the High Court rightly upheld
the contention on behalf of the Appellant that he has caveatable interest.
caveator as the executor of rival Will dated 01.03.2013 have been mentioned in
the affidavit filed in support of the caveat and the High Court rightly upheld
the contention on behalf of the Appellant that he has caveatable interest.
Judgement:
In the instant case, the High Court
found that the Appellant has caveatable interest, but the caveat filed by the
Appellant was discharged on the ground that the affidavit filed in support
thereof was bereft of an averment doubting the due execution of the Will dated
22.04.2013.
found that the Appellant has caveatable interest, but the caveat filed by the
Appellant was discharged on the ground that the affidavit filed in support
thereof was bereft of an averment doubting the due execution of the Will dated
22.04.2013.
For the reasons stated supra, we are
satisfied that the affidavit filed in support of the caveat fulfils the
condition of Rule 25.
satisfied that the affidavit filed in support of the caveat fulfils the
condition of Rule 25.
The appeals are allowed and the
judgment passed by the Division Bench of the High Court is set aside. No order
as to costs.
judgment passed by the Division Bench of the High Court is set aside. No order
as to costs.
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SUPREME
COURT
COURT
SAMIR CHANDRA DAS VS BIBHAS CHANDRA DAS & ORS ON 7
MAY, 2010
MAY, 2010
Summarised Judgement
Introduction:
Challenge in this appeal is to the
Division Bench Judgment of the Calcutta High Court wherein the appeal filed by
respondent herein, namely, Bibhas Chandra Das was allowed holding that no
probate could be granted in favour of the present appellant, namely, Samir
Chandra Das.
Division Bench Judgment of the Calcutta High Court wherein the appeal filed by
respondent herein, namely, Bibhas Chandra Das was allowed holding that no
probate could be granted in favour of the present appellant, namely, Samir
Chandra Das.
Facts of the Case:
One Jogesh Chandra Das was the
testator. He expired on 13.01.1984 leaving his widow Parul Bala Das and four
sons Samir Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan Das.
He had three daughters also, namely, Dipti, Jayanti and Sashwati.
testator. He expired on 13.01.1984 leaving his widow Parul Bala Das and four
sons Samir Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan Das.
He had three daughters also, namely, Dipti, Jayanti and Sashwati.
In his Will dated 14.08.1983, he
named his widow Parul Bala Das and Samir Chandra Das as the executors. By this
Will, however, Bibhas Chandra Das was not given any share. The house property
at Harish Mukherjee Road was to go to his wife Parul Bala Das with life
interest without any right to sell, mortgage etc., and after her death, to his
three sons, namely, Samir Chandra Das, Subhash Chandra Das and Anjan Das.
named his widow Parul Bala Das and Samir Chandra Das as the executors. By this
Will, however, Bibhas Chandra Das was not given any share. The house property
at Harish Mukherjee Road was to go to his wife Parul Bala Das with life
interest without any right to sell, mortgage etc., and after her death, to his
three sons, namely, Samir Chandra Das, Subhash Chandra Das and Anjan Das.
This property was given to the widow
for life and thereafter to the three sons of the testator excluding Bibhas
Chandra Das on the condition that the three sons would bear the maintenance and
marriage expenses of the two unmarried daughters for which the wife Parul Bala
Das had specific authority to sell the land even during her life time to meet
the expenses of maintenance and marriage of the two daughters, if the three
sons did not bear the same.
for life and thereafter to the three sons of the testator excluding Bibhas
Chandra Das on the condition that the three sons would bear the maintenance and
marriage expenses of the two unmarried daughters for which the wife Parul Bala
Das had specific authority to sell the land even during her life time to meet
the expenses of maintenance and marriage of the two daughters, if the three
sons did not bear the same.
As has been stated earlier, all the
legatees supported the probate application.
legatees supported the probate application.
The respondent herein opposed the
grant of probate by filing a written statement dated 05.04.1990. The evidence
was led and the Will was got proved.
grant of probate by filing a written statement dated 05.04.1990. The evidence
was led and the Will was got proved.
In the written statement, respondent
Bibhas Chandra Das mainly opposed the probate application on the grounds that
the suit was not maintainable, Will was not genuine, Will was not legally
executed and attested, Jogesh Chandra Das did not execute the Will out of his
free will, it was brought about by undue influence and lastly that Bibhas
Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will.
Bibhas Chandra Das mainly opposed the probate application on the grounds that
the suit was not maintainable, Will was not genuine, Will was not legally
executed and attested, Jogesh Chandra Das did not execute the Will out of his
free will, it was brought about by undue influence and lastly that Bibhas
Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will.
After the evidence, the trial Court
came to the conclusion that the Will was genuine and the testator had the sound
disposing state of mind to execute the same since he was physically fit and
mentally sound and alert. It was also held that the Will in question was
validly executed and attested.
came to the conclusion that the Will was genuine and the testator had the sound
disposing state of mind to execute the same since he was physically fit and
mentally sound and alert. It was also held that the Will in question was
validly executed and attested.
It was found that the Will was free
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
Observation of Court:
An appeal was filed on various
grounds. We scanned the grounds in appeal very carefully which mainly pertained
to the grounds raised in the written statement. In the grounds raised in the
appeal, we do not find a single ground to the effect that the executor Samir
Chandra Das had, in any manner, acquired any disability or had, in any manner,
renunciated the executorship.
grounds. We scanned the grounds in appeal very carefully which mainly pertained
to the grounds raised in the written statement. In the grounds raised in the
appeal, we do not find a single ground to the effect that the executor Samir
Chandra Das had, in any manner, acquired any disability or had, in any manner,
renunciated the executorship.
It went on to further allege that if
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
Judgement:
In the result, the appeal succeeds.
The order of the appellate Court is set aside and the matter is remanded back
to the appellate Court for decision on merits regarding the valid execution or attestation
of the Will. The appeal succeeds with the costs of Rs.25,000/-.
The order of the appellate Court is set aside and the matter is remanded back
to the appellate Court for decision on merits regarding the valid execution or attestation
of the Will. The appeal succeeds with the costs of Rs.25,000/-.
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SUPREME COURT OF INDIA
JAGJIT SINGH & ORS VS PAMELA
MANMOHAN SINGH ON 10 MARCH, 2010
MANMOHAN SINGH ON 10 MARCH, 2010
Summarised Judgement
Introduction:
Whether the appellants, who claim to
have purchased the property described as 6-B, Jangpura, Mathura Road, New Delhi
from Major K.V. Kohli (one of the two heirs of Mrs. Rasheel Kohli) are entitled
to contest the application filed by the respondent – Mrs. Pamela Manmohan Singh
(the other heir of Mrs. Rasheel Kohli) for grant of letter of administration is
the question which arises for consideration in this appeal filed against order
dated 22.1.2001 passed by the learned Single Judge of Delhi High Court in Civil
Revision No.791 of 1994 whereby he set aside the order passed by Additional
District Judge allowing an application filed by the appellants under Section
151 of the Code of Civil Procedure (CPC) for permission to file objections in
Probate Case No.272 of 1993.
have purchased the property described as 6-B, Jangpura, Mathura Road, New Delhi
from Major K.V. Kohli (one of the two heirs of Mrs. Rasheel Kohli) are entitled
to contest the application filed by the respondent – Mrs. Pamela Manmohan Singh
(the other heir of Mrs. Rasheel Kohli) for grant of letter of administration is
the question which arises for consideration in this appeal filed against order
dated 22.1.2001 passed by the learned Single Judge of Delhi High Court in Civil
Revision No.791 of 1994 whereby he set aside the order passed by Additional
District Judge allowing an application filed by the appellants under Section
151 of the Code of Civil Procedure (CPC) for permission to file objections in
Probate Case No.272 of 1993.
Facts of the Case:
The property in question was leased
out by the Government of India to Mrs. Rasheel Kohli sometime in 1957 for a
period of 90 years. Mrs. Rasheel Kohli availed loans from Oriental Bank of
Commerce and Grindlays Bank and mortgaged the suit property. Oriental Bank of
Commerce filed Suit No.75 of 1979 in the High Court of Delhi against M/s.
Zirconium, K.V. Kohli and Mrs. Rasheel Kohli for the recovery of their dues.
out by the Government of India to Mrs. Rasheel Kohli sometime in 1957 for a
period of 90 years. Mrs. Rasheel Kohli availed loans from Oriental Bank of
Commerce and Grindlays Bank and mortgaged the suit property. Oriental Bank of
Commerce filed Suit No.75 of 1979 in the High Court of Delhi against M/s.
Zirconium, K.V. Kohli and Mrs. Rasheel Kohli for the recovery of their dues.
After taking possession from
Khairati Lal, M/s Texla Service Center filed Suit No.182 of 1986 for specific
performance of the agreement for sale. In that suit, the High Court directed
the parties to maintain status quo.
Khairati Lal, M/s Texla Service Center filed Suit No.182 of 1986 for specific
performance of the agreement for sale. In that suit, the High Court directed
the parties to maintain status quo.
Mrs. Rasheel Kohli died on
11.10.1987. After about one month, Shri K.V. Kohli (son of the deceased)
executed three registered sale deeds dated 6.12.1988 in favour of the
appellants, though, at that time, warrant of attachment issued pursuant to
order dated 2.11.1988 passed by the Bombay High Court in Suit No.2951 of 1987
was in force.
11.10.1987. After about one month, Shri K.V. Kohli (son of the deceased)
executed three registered sale deeds dated 6.12.1988 in favour of the
appellants, though, at that time, warrant of attachment issued pursuant to
order dated 2.11.1988 passed by the Bombay High Court in Suit No.2951 of 1987
was in force.
On 30.11.1987, K.V. Kohli filed
application for grant of probate by claiming that his mother had executed Will
dated 7.3.1986 in his favour. The same was registered as Suit No.379 of 1987.
The respondent also filed an application dated 6.3.1989 for grant of letter of
administration by claiming that her mother had executed Will dated 7.3.1987 in
her favour.
application for grant of probate by claiming that his mother had executed Will
dated 7.3.1986 in his favour. The same was registered as Suit No.379 of 1987.
The respondent also filed an application dated 6.3.1989 for grant of letter of
administration by claiming that her mother had executed Will dated 7.3.1987 in
her favour.
Observation of Court:
We are unable to accept these
submissions made by Mr Thiagarajan, learned counsel appearing on behalf of the
appellant only for the simple reason that admittedly the respondents were
grandchildren of the testator and they have claimed the estate of the deceased
on the basis of a settlement deed executed by the testator himself which
admittedly was revoked by the testator. That being the position, we must hold
that the respondents had caveatable interest in the estate of the testator and,
therefore, they are entitled to be served before the final order is passed. It
is well settled that if a person who has even a slight interest in the estate
of the testator is entitled to file caveat and contest the grant of probate of
the will of the testator.
submissions made by Mr Thiagarajan, learned counsel appearing on behalf of the
appellant only for the simple reason that admittedly the respondents were
grandchildren of the testator and they have claimed the estate of the deceased
on the basis of a settlement deed executed by the testator himself which
admittedly was revoked by the testator. That being the position, we must hold
that the respondents had caveatable interest in the estate of the testator and,
therefore, they are entitled to be served before the final order is passed. It
is well settled that if a person who has even a slight interest in the estate
of the testator is entitled to file caveat and contest the grant of probate of
the will of the testator.
Judgement:
It is thus evident that apparently
conflicting views have been expressed by coordinate Benches of this Court on
the interpretation of the expression “caveatable interest”.
conflicting views have been expressed by coordinate Benches of this Court on
the interpretation of the expression “caveatable interest”.
As against this, in G. Gopal’s case,
the dictum that a person who is having a slight interest in the estate of the
testator is entitled to file caveat and contest the grant of probate has been
reiterated. This being the position, we feel that the issue deserves to be
considered and decided by a larger Bench.
the dictum that a person who is having a slight interest in the estate of the
testator is entitled to file caveat and contest the grant of probate has been
reiterated. This being the position, we feel that the issue deserves to be
considered and decided by a larger Bench.
The Registry is directed to place
the matter before Hon’ble the Chief Justice for appropriate order.
the matter before Hon’ble the Chief Justice for appropriate order.
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SUPREME
COURT OF INDIA
COURT OF INDIA
MADDINENI KOTESWARA RAO VS MADDINENI BHASKARA RAO &
ANR ON 5 MAY, 2009
ANR ON 5 MAY, 2009
Summarised Judgement
Introduction:
This appeal by special leave is
directed against the judgment and order dated 26th of October, 2006 of the High
Court of Andhra Pradesh at Hyderabad, wherein the High Court had dismissed the
Civil Revision Case being CRP No. 986 of 2006 filed before it by the appellant.
directed against the judgment and order dated 26th of October, 2006 of the High
Court of Andhra Pradesh at Hyderabad, wherein the High Court had dismissed the
Civil Revision Case being CRP No. 986 of 2006 filed before it by the appellant.
Facts of the Case:
The relevant facts leading to the
present appeal are as follows:
present appeal are as follows:
One M. Veera Raghavaiah, the father
of the appellant (since deceased) and the respondents, had three sons and a
daughter. M. Veera Raghavaiah, the deceased father of the appellant, was acting
as a manager and karta of the joint family till 1966. Thereafter, he fell sick
and became incapable of managing the joint family property and joint family
debts.
of the appellant (since deceased) and the respondents, had three sons and a
daughter. M. Veera Raghavaiah, the deceased father of the appellant, was acting
as a manager and karta of the joint family till 1966. Thereafter, he fell sick
and became incapable of managing the joint family property and joint family
debts.
The appellant herein came forward
and agreed to take up the responsibility. Accordingly, all the parties agreed
to execute a power of attorney in favour of the appellant. But, the appellant
insisted on executing a separate deed instead of a power of attorney saying
that a power of attorney may not be effective and it can be terminated at any
point of time.
and agreed to take up the responsibility. Accordingly, all the parties agreed
to execute a power of attorney in favour of the appellant. But, the appellant
insisted on executing a separate deed instead of a power of attorney saying
that a power of attorney may not be effective and it can be terminated at any
point of time.
The respondents herein and the
deceased father out of confidence signed on the said deed which was registered
on 17th of May, 1966, without knowing its contents. However, they later came to
know that the said deed was styled as a partition deed between the parties.
deceased father out of confidence signed on the said deed which was registered
on 17th of May, 1966, without knowing its contents. However, they later came to
know that the said deed was styled as a partition deed between the parties.
On 21st of April, 1978, M. Bhaskara
Rao, one of the sons of the deceased father and the respondent no.1 herein
(hereinafter referred to as the respondent), filed a suit for partition of the
plaint scheduled property claiming 1/4th share in the same and also for a
declaration that the alleged deed of partition dated 17th of May, 1966 was
sham, void and inoperative and for other incidental reliefs in the Court of
Principal Subordinate Judge, Vijayawada.
Rao, one of the sons of the deceased father and the respondent no.1 herein
(hereinafter referred to as the respondent), filed a suit for partition of the
plaint scheduled property claiming 1/4th share in the same and also for a
declaration that the alleged deed of partition dated 17th of May, 1966 was
sham, void and inoperative and for other incidental reliefs in the Court of
Principal Subordinate Judge, Vijayawada.
Observation of Court:
Before parting with this judgment,
we may refer to a decision of this Court in the case of Kaushalya Devi
& Ors. vs. Baijnath Sayal (deceased) & Ors. [AIR 1961 SC 790]
on which reliance was also placed by the learned counsel for the appellant. The
learned counsel for the appellant also had drawn our attention to paragraph 9
of the said decision.
we may refer to a decision of this Court in the case of Kaushalya Devi
& Ors. vs. Baijnath Sayal (deceased) & Ors. [AIR 1961 SC 790]
on which reliance was also placed by the learned counsel for the appellant. The
learned counsel for the appellant also had drawn our attention to paragraph 9
of the said decision.
At this stage, it would be
appropriate if we reproduce Para 9 on which strong reliance was placed by the
learned counsel for the appellant. Para 9 of the said decision runs as under:-
appropriate if we reproduce Para 9 on which strong reliance was placed by the
learned counsel for the appellant. Para 9 of the said decision runs as under:-
“If the preliminary decree
passed in the present proceedings without complying with the provisions of
Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the
appellants, the question is ;can they seek to avoid it by preferring an appeal
against the final decree ?
passed in the present proceedings without complying with the provisions of
Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the
appellants, the question is ;can they seek to avoid it by preferring an appeal
against the final decree ?
We have already explained in this
judgment that Section 97 of the CPC is not applicable to the facts and
circumstances of the present case and, therefore, we do not find any
applicability of Paragraph 9 of the decision thereof in this decision of this
Court in the facts and circumstances of the present case.
judgment that Section 97 of the CPC is not applicable to the facts and
circumstances of the present case and, therefore, we do not find any
applicability of Paragraph 9 of the decision thereof in this decision of this
Court in the facts and circumstances of the present case.
Judgement:
No other point was raised by the
learned counsel for the parties before us. Accordingly we do not find any merit
in this appeal. The appeal is thus dismissed. There will be no order as to
costs.
learned counsel for the parties before us. Accordingly we do not find any merit
in this appeal. The appeal is thus dismissed. There will be no order as to
costs.
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SUPREME
COURT
COURT
KANWARJIT SINGH DHILLON VS HARDYAL SINGH DHILLON AND ORS ON 12
OCTOBER, 2007
OCTOBER, 2007
Summarised Judgement
Introduction:
This appeal is directed against the
judgment and final order dated 22nd of March, 2004 passed by the High Court of
Punjab and Haryana at Chandigarh in Civil Revision No.3861 of 2002 whereby an
order dated 18th of January, 2000 of the learned Civil Judge, Jallandhar,
dismissing a suit for declaration and permanent injunction of the appellant,
was affirmed.
judgment and final order dated 22nd of March, 2004 passed by the High Court of
Punjab and Haryana at Chandigarh in Civil Revision No.3861 of 2002 whereby an
order dated 18th of January, 2000 of the learned Civil Judge, Jallandhar,
dismissing a suit for declaration and permanent injunction of the appellant,
was affirmed.
Facts of the Case:
Originally, the suit properties
stood in the name of Ishar Singh (paternal grandfather of the appellant) which
was subsequently mutated in the name of his two sons, S.Hazara Singh and
S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late
S.Kirpal Singh died leaving behind some properties, both movable and immovable
comprising agricultural land measuring 48 Kanal 10 Marlas situated at
Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two
deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to
as “the suit properties”].
stood in the name of Ishar Singh (paternal grandfather of the appellant) which
was subsequently mutated in the name of his two sons, S.Hazara Singh and
S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late
S.Kirpal Singh died leaving behind some properties, both movable and immovable
comprising agricultural land measuring 48 Kanal 10 Marlas situated at
Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two
deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to
as “the suit properties”].
According to the appellant, the suit
properties left behind by late S.Kirpal Singh were their ancestral properties.
After eight years of the death of late S.Kirpal Singh, the respondent No.1
propounded an unregistered Will left behind by late S.Kirpal Singh and applied
for probate thereof in the High Court of Punjab and Haryana.
properties left behind by late S.Kirpal Singh were their ancestral properties.
After eight years of the death of late S.Kirpal Singh, the respondent No.1
propounded an unregistered Will left behind by late S.Kirpal Singh and applied
for probate thereof in the High Court of Punjab and Haryana.
As per the said Will executed by
late S.Kirpal Singh, the suit properties, both movable and immovable, were
bequeathed by late S.Kirpal Singh in favour of respondent No.1 herein. Only a
right of residence was given in favour of the widow of late S.Kirpal Singh and
his unmarried daughter.
late S.Kirpal Singh, the suit properties, both movable and immovable, were
bequeathed by late S.Kirpal Singh in favour of respondent No.1 herein. Only a
right of residence was given in favour of the widow of late S.Kirpal Singh and
his unmarried daughter.
In the suit filed at the instance of
the appellant, the respondent No.1 raised a preliminary issue by filing an
application saying that after the probate having been granted of the Will
executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed
with the suit for declaration of title and permanent injunction and accordingly
the suit should be dismissed. The preliminary issue framed by the Civil Court
is to the following effect:
the appellant, the respondent No.1 raised a preliminary issue by filing an
application saying that after the probate having been granted of the Will
executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed
with the suit for declaration of title and permanent injunction and accordingly
the suit should be dismissed. The preliminary issue framed by the Civil Court
is to the following effect:
“Whether this Court has
jurisdiction in view of the probate granted by the Hon’ble Punjab &
Haryana High Court vide order dated April 5, 1991, confirmed by the Divisional
Bench of Punjab & Haryana High Court on 1st December, 1993 and
confirmed by the Hon’ble Supreme Court of India on 2.7.1994.”
jurisdiction in view of the probate granted by the Hon’ble Punjab &
Haryana High Court vide order dated April 5, 1991, confirmed by the Divisional
Bench of Punjab & Haryana High Court on 1st December, 1993 and
confirmed by the Hon’ble Supreme Court of India on 2.7.1994.”
Observation of Court:
It is true that the probate of the Will granted by the competent probate court
would be admitted into evidence that may be taken into consideration by the
civil court while deciding the suit for title but grant of probate cannot be
decisive for declaration of title and injunction whether at all the testator
had any title to the suit properties or not.
Such being the position, we,
therefore, hold that the High Court as well as the trial court had acted
illegally in dismissing the suit of the appellant on the aforesaid sole ground
after framing the preliminary issue. For the reasons aforesaid, the judgments
of the High Court as well as of the trial court are set aside. The appeal is
allowed to the extent indicated above. The trial court is now directed to
decide the suit after framing issues, including the issue of maintainability of
the suit after the probate being granted, if not already framed in the meantime
and dispose of the same within a year from the date of production of a copy of
this order before the trial court.
therefore, hold that the High Court as well as the trial court had acted
illegally in dismissing the suit of the appellant on the aforesaid sole ground
after framing the preliminary issue. For the reasons aforesaid, the judgments
of the High Court as well as of the trial court are set aside. The appeal is
allowed to the extent indicated above. The trial court is now directed to
decide the suit after framing issues, including the issue of maintainability of
the suit after the probate being granted, if not already framed in the meantime
and dispose of the same within a year from the date of production of a copy of
this order before the trial court.
Before parting with this judgment,
we may express one more aspect. As noted herein earlier, a suit was dismissed
by the trial court which was affirmed by the High Court in revision after
framing preliminary issue which we have already noted herein earlier. A
question may arise whether the preliminary issue could be raised without
deciding the other issues and the suit could be dismissed in view of Order XIV,
Rule 2 of the Code of Civil Procedure. In view of our decision in this matter,
we do not feel it proper to dwell on this aspect which is kept open for future
consideration.
we may express one more aspect. As noted herein earlier, a suit was dismissed
by the trial court which was affirmed by the High Court in revision after
framing preliminary issue which we have already noted herein earlier. A
question may arise whether the preliminary issue could be raised without
deciding the other issues and the suit could be dismissed in view of Order XIV,
Rule 2 of the Code of Civil Procedure. In view of our decision in this matter,
we do not feel it proper to dwell on this aspect which is kept open for future
consideration.
Judgement:
For the aforesaid reasons,
the impugned order is set aside. The appeal is allowed. There will be no order
as to costs.
the impugned order is set aside. The appeal is allowed. There will be no order
as to costs.
————————————————————
SUPREME COURT OF INDIA
KRISHNA KUMAR BIRLA VS
RAJENDRA SINGH LODHA & ORS ON 31 MARCH, 2008
RAJENDRA SINGH LODHA & ORS ON 31 MARCH, 2008
Summarised Judgement
Introduction:
What is a caveatable
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
Background Facts
Smt. Priyamvada Devi
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
Both MPB and PDB are
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors.
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors.
However, the said wills
were revoked and another set of mutual wills were executed on 13th July, 1982
in terms whereof, four executors were appointed in each set of Will (1982
Will).
were revoked and another set of mutual wills were executed on 13th July, 1982
in terms whereof, four executors were appointed in each set of Will (1982
Will).
On or about 18th April,
1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to
the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as
the sole executor. She executed a codicil on 15th April, 2003.
1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to
the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as
the sole executor. She executed a codicil on 15th April, 2003.
PDB died on 3rd July,
2004.
2004.
KKB, BKB, and
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
In his application for
grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi
Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi
Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
A suit was filed by the
surviving executors of the two 1982 Wills before the Calcutta High Court which
was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration that
the first respondent as the alleged executor and sole beneficiary of the 1999
Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
surviving executors of the two 1982 Wills before the Calcutta High Court which
was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration that
the first respondent as the alleged executor and sole beneficiary of the 1999
Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
It is stated that PDB
was also related to KKB through his wife.
was also related to KKB through his wife.
Relationship between the
parties is not in dispute. It is also not in dispute that MPB left behind two
sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as also
PDB’s heirs and legal representatives.
parties is not in dispute. It is also not in dispute that MPB left behind two
sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as also
PDB’s heirs and legal representatives.
Statutory Provisions
Provisions relating to
grant of `Probate’ is contained in Chapter IV of the 1925 Act.
grant of `Probate’ is contained in Chapter IV of the 1925 Act.
Section 283 of the 1925
Act enumerates the powers of the District Judge. Section 283(1)(c) of the 1925
Act confers power upon the District Judge to issue citations calling upon all
persons claiming to have any interest in the estate of the deceased to come and
see the proceedings before the grant of `Probate’ or `Letters of
Administration’.
Act enumerates the powers of the District Judge. Section 283(1)(c) of the 1925
Act confers power upon the District Judge to issue citations calling upon all
persons claiming to have any interest in the estate of the deceased to come and
see the proceedings before the grant of `Probate’ or `Letters of
Administration’.
Sub-section (2) of
Section 283 postulates that the citation shall be fixed up in some conspicuous
part of the court-house, and also the other spaces as specified therein.
Section 284 of 1925 Act provides for the lodging of caveats against grant of
Probate or Letter of Administration with a copy of the Will annexed with a
District Judge or a District Delegate.
Section 283 postulates that the citation shall be fixed up in some conspicuous
part of the court-house, and also the other spaces as specified therein.
Section 284 of 1925 Act provides for the lodging of caveats against grant of
Probate or Letter of Administration with a copy of the Will annexed with a
District Judge or a District Delegate.
“26. Notice to
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
Notice to prove will in solemn form,
The party opposing a
will may, with his affidavit, give notice to the party setting up the will that
he merely insists upon the will being proved in solemn form of law, and only
intends to cross-examine the witnesses produced in support of the will, and he
shall thereupon be at liberty to do so, and shall not, in any event, be liable
to pay the costs of the other side, unless the Court shall be of opinion that
there was no reasonable ground for opposing the will.”
will may, with his affidavit, give notice to the party setting up the will that
he merely insists upon the will being proved in solemn form of law, and only
intends to cross-examine the witnesses produced in support of the will, and he
shall thereupon be at liberty to do so, and shall not, in any event, be liable
to pay the costs of the other side, unless the Court shall be of opinion that
there was no reasonable ground for opposing the will.”
Observation of Court:
The court is concerned
with the genuineness of the Will. If it is found to be valid, no further
question as to why did she do so would be completely out of its domain. A Will
may be executed even for the benefit of others including animals. Various
documents have been placed before us by the learned counsel appearing on behalf
of the first respondent to show that MPB was not happy in regard to management
of Birlas’ Group of Companies and by the division thereof which took place
after the demise of G.D. Birla in 1983.
with the genuineness of the Will. If it is found to be valid, no further
question as to why did she do so would be completely out of its domain. A Will
may be executed even for the benefit of others including animals. Various
documents have been placed before us by the learned counsel appearing on behalf
of the first respondent to show that MPB was not happy in regard to management
of Birlas’ Group of Companies and by the division thereof which took place
after the demise of G.D. Birla in 1983.
The petitioner is and
was at all material times aware of the same.
was at all material times aware of the same.
(h) By reason of the
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
The said arguments,
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
Whether RSL has a
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
We have already held
that GPB has caveatable interests as executor of MPB in respect of his Will of
1982. We, therefore, see no reason as to why RSL would not have a caveatable
interest being a beneficiary under the 1999 Will in the proceedings for grant
of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in
the appeal are to be upheld, the same ex facie would destroy the case of the
appellants in the other cases. SUIT ON MUTUAL WILLS
that GPB has caveatable interests as executor of MPB in respect of his Will of
1982. We, therefore, see no reason as to why RSL would not have a caveatable
interest being a beneficiary under the 1999 Will in the proceedings for grant
of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in
the appeal are to be upheld, the same ex facie would destroy the case of the
appellants in the other cases. SUIT ON MUTUAL WILLS
Judgement:
In our opinion, the High
Court was right in opining that a caveatable interest may arise only after suit
for enforcement of mutual Will is decreed and not prior thereto.
Court was right in opining that a caveatable interest may arise only after suit
for enforcement of mutual Will is decreed and not prior thereto.
————————————————————
MADRAS HIGH COURT
MUSUNURU NAGENDRAMMA VS MUSUNURU
RAMAKOTAYYA ON 3 SEPTEMBER, 1953
RAMAKOTAYYA ON 3 SEPTEMBER, 1953
Intrdouction:
This is an appeal
preferred against the decree and judgment of the learned Subordinate Judge of
Tenali in O. S. No. 17 of 1948.
preferred against the decree and judgment of the learned Subordinate Judge of
Tenali in O. S. No. 17 of 1948.
Facts
of the Case:
of the Case:
The first defendant
Ramakottayya is a substantial Kamma ryot of Yadlapalli. He married the
plaintiff Musunuru Nagendramma in 1929. This Musunuru Nagendramma herself is
the daughter of a substantially wealthy ryot of Angalakuthura. The father of
the plaintiff is said to be a nit-wit, and can only sign his name and he is
said to have been assisted in the management of the family affairs by his wife.
Ramakottayya is a substantial Kamma ryot of Yadlapalli. He married the
plaintiff Musunuru Nagendramma in 1929. This Musunuru Nagendramma herself is
the daughter of a substantially wealthy ryot of Angalakuthura. The father of
the plaintiff is said to be a nit-wit, and can only sign his name and he is
said to have been assisted in the management of the family affairs by his wife.
This plaintiff joined
her husband in 1932. She was married when she was eleven years of ago and she
joined her husband when she was 13 or 14 years old. The plaintiff and defendant
have been living together up to March 1942. The marriage proved issueless. It
is stated that the married life of the plaintiff and the defendant had not been
a success owing to the defendant, the husband of the plaintiff, coveting the
properties of his wife’s parents and has been resenting her barrenness. It is
stated that these bickerings between the husband and wife culminated in her
being driven out of the house in March 1943 and after this the wife took her
residence with her parents and some attempts were made to patch up the
differences but they did not succeed.
her husband in 1932. She was married when she was eleven years of ago and she
joined her husband when she was 13 or 14 years old. The plaintiff and defendant
have been living together up to March 1942. The marriage proved issueless. It
is stated that the married life of the plaintiff and the defendant had not been
a success owing to the defendant, the husband of the plaintiff, coveting the
properties of his wife’s parents and has been resenting her barrenness. It is
stated that these bickerings between the husband and wife culminated in her
being driven out of the house in March 1943 and after this the wife took her
residence with her parents and some attempts were made to patch up the
differences but they did not succeed.
Observation
of Court:
of Court:
After taking into
consideration the fact that subsequently a son has been born to him and that
that son’s share should be excluded from our purview and that the first
defendant has also to maintain a second wife and four daughters raised through
her and the other incidental obligations incumbent on him, the rate of
maintenance under all heads can be safely fixed on an average rate of 25 bags
of paddy for past and 50 bags of paddy for future per annum. The past
maintenance on my finding of abandonment will be from 1st February 1943.
consideration the fact that subsequently a son has been born to him and that
that son’s share should be excluded from our purview and that the first
defendant has also to maintain a second wife and four daughters raised through
her and the other incidental obligations incumbent on him, the rate of
maintenance under all heads can be safely fixed on an average rate of 25 bags
of paddy for past and 50 bags of paddy for future per annum. The past
maintenance on my finding of abandonment will be from 1st February 1943.
Judgement:
In the result, the
decree and judgment of the learned Subordinate Judge are set aside and the
plaintiff is awarded maintenance past from February 1943 or 25 bags of paddy
per annum and future at the rate of 50 bags of paddy and this is made a charge
on a portion of the immoveable properties of the first defendant as set out
above and the suit is decreed to the plaintiff to this extent. The parties will
give and receive costs in the measure in which they have succeeded and failed.
decree and judgment of the learned Subordinate Judge are set aside and the
plaintiff is awarded maintenance past from February 1943 or 25 bags of paddy
per annum and future at the rate of 50 bags of paddy and this is made a charge
on a portion of the immoveable properties of the first defendant as set out
above and the suit is decreed to the plaintiff to this extent. The parties will
give and receive costs in the measure in which they have succeeded and failed.
——————————————————–
PATNA HIGH COURT
RENUKA BALA CHATTERJI VS ASWINI KUMAR
GUPTA AND ORS. ON 27 JUNE, 1961
GUPTA AND ORS. ON 27 JUNE, 1961
Summarised
Judgement:
Judgement:
Facts
of the Case:
of the Case:
The facts leading to
the present appeal by defendant No. 1 may be stated in brief as follows: One
Srimati Manorama Mazumdar, widow of Girish Chandra Mazumdar, the d on the 25th
of April, 1936 leaving three daughters, Srimati Nirmala, Srimati Urmila and
Srimati Amala. She had two other daughters, Srimati Framila and Srimati Simla
who had predeceased her of the three surviving daughters. Srimati Amala on the
19th July, 1936 and Srimati Nirmala in 1939. Srimati Urmila is defendant No. 2
in the present suit and her son is defendant No. 3. Defendants 4 and 5 are sons
of Nirmala and Bimala, respectively. Plaintiffs 1 to 5 are sons of Framila
deceased. An item of house property consisting of half of the suit house was
acquired by Manorama Mazumdar by way of gift from a relation, and she was the
absolute owner thereof. Similarly, another item of property, which was the
adjoining half of the house already acquired by Manorama, was purchased by
Amala out of her earnings, and she constructed a house on that land herself.
She was the absolute owner thereof.
the present appeal by defendant No. 1 may be stated in brief as follows: One
Srimati Manorama Mazumdar, widow of Girish Chandra Mazumdar, the d on the 25th
of April, 1936 leaving three daughters, Srimati Nirmala, Srimati Urmila and
Srimati Amala. She had two other daughters, Srimati Framila and Srimati Simla
who had predeceased her of the three surviving daughters. Srimati Amala on the
19th July, 1936 and Srimati Nirmala in 1939. Srimati Urmila is defendant No. 2
in the present suit and her son is defendant No. 3. Defendants 4 and 5 are sons
of Nirmala and Bimala, respectively. Plaintiffs 1 to 5 are sons of Framila
deceased. An item of house property consisting of half of the suit house was
acquired by Manorama Mazumdar by way of gift from a relation, and she was the
absolute owner thereof. Similarly, another item of property, which was the
adjoining half of the house already acquired by Manorama, was purchased by
Amala out of her earnings, and she constructed a house on that land herself.
She was the absolute owner thereof.
On the death of
Manorama Mazumdar in April, 1936, Srimati Amala inherited her property as a
Stridhan heir. She thus came in possession of both the halves of the suit
house, one which had belonged to Manorama and the other belonging to herself.
Within three months of the death of the mother. Amala the died in July 1936.
Srimati Ninnala and Srimati Urmila, the two other surviving daughters of
Manorama inherited Manoratna’s property.
Manorama Mazumdar in April, 1936, Srimati Amala inherited her property as a
Stridhan heir. She thus came in possession of both the halves of the suit
house, one which had belonged to Manorama and the other belonging to herself.
Within three months of the death of the mother. Amala the died in July 1936.
Srimati Ninnala and Srimati Urmila, the two other surviving daughters of
Manorama inherited Manoratna’s property.
Observation
of Court:
of Court:
As I have pointed out
earlier, what the Judicial Committee laid down with reference to the Hindu Law
of Inheritance (Amendment) Act, 1929, was that the provisions of that Act were
applicable when a succession opened after that Act came into force. In the case
in AIR 1958 Pat 502 which was for partition, the succession to the widow had
opened on the death of her husband and that was long before 1956. Under Section
3 Sub-clause (2) of the Hindu Women’s Bight to Property Act, 1937, the widow
could get the same interest as her husband had, at the time of his death, in a
Hindu Joint family property, provided his death occurred after that Act came into
effect.
earlier, what the Judicial Committee laid down with reference to the Hindu Law
of Inheritance (Amendment) Act, 1929, was that the provisions of that Act were
applicable when a succession opened after that Act came into force. In the case
in AIR 1958 Pat 502 which was for partition, the succession to the widow had
opened on the death of her husband and that was long before 1956. Under Section
3 Sub-clause (2) of the Hindu Women’s Bight to Property Act, 1937, the widow
could get the same interest as her husband had, at the time of his death, in a
Hindu Joint family property, provided his death occurred after that Act came into
effect.
Judgement:
The result, therefore,
is that none of the contentions of learned counsel for the appellant succeeds.
The appeal is therefore, dismissed but, in view of the circumstances of the
case and the legal points involved in it, there will be no order for costs in this
Court.
is that none of the contentions of learned counsel for the appellant succeeds.
The appeal is therefore, dismissed but, in view of the circumstances of the
case and the legal points involved in it, there will be no order for costs in this
Court.
——————————————————–
MADRAS HIGH COURT
ABDUL SATTAR ISMAIL VS ABDUL
HUMID SAIT ON 7 MARCH, 1944
HUMID SAIT ON 7 MARCH, 1944
Summarised
Judgement:
Judgement:
Introduction:
This appeal raises
important questions of law, in the first place with regard to the testamentary
capacity of Cutchi Memons before the passing of the Cutchi Memons Act, 1938,
and in the second place with regard to the validity of a wakf which a Cutchi
Memon by his will directed should be endowed by the property forming the
residue of his estate. The appeal arises out of two suits filed on the original
side of this Court for the administration of the estate of Hajee Sir Ismail
Sait, a wealthy Mussalman of the Hanafi sect and a member of the Cutchi Memon
community, who died in Bangalore on 24th April 1934. He had eight children,
seven of whom survived him, as did their mother. He left a will and a codicil
there-to, both of which have been admitted to pro-bate by this Court. On 6th
December 1939, two of the testator’s grandsons, sons of his eldest, son, filed
C. S. No. 280 of 1939 for the administration of the estate in accordance with
the testamentary directions given by their grandfather. On 16th December 1939,
his third son filed C. S. No. 286 of 1939 for the administration of the estate
on the basis that the will was invalid. The two suits were tried together by
Somayya J. and this appeal is from his judgment.
important questions of law, in the first place with regard to the testamentary
capacity of Cutchi Memons before the passing of the Cutchi Memons Act, 1938,
and in the second place with regard to the validity of a wakf which a Cutchi
Memon by his will directed should be endowed by the property forming the
residue of his estate. The appeal arises out of two suits filed on the original
side of this Court for the administration of the estate of Hajee Sir Ismail
Sait, a wealthy Mussalman of the Hanafi sect and a member of the Cutchi Memon
community, who died in Bangalore on 24th April 1934. He had eight children,
seven of whom survived him, as did their mother. He left a will and a codicil
there-to, both of which have been admitted to pro-bate by this Court. On 6th
December 1939, two of the testator’s grandsons, sons of his eldest, son, filed
C. S. No. 280 of 1939 for the administration of the estate in accordance with
the testamentary directions given by their grandfather. On 16th December 1939,
his third son filed C. S. No. 286 of 1939 for the administration of the estate
on the basis that the will was invalid. The two suits were tried together by
Somayya J. and this appeal is from his judgment.
The descriptions are
those of the parties to the second suit, all of whom were all the parties to
the first suit. Admittedly the properties left by the testator had been
acquired by him as the result of his own exertions. His will is dated 19th
March 1934. He made specific bequests of immovable property to various
religious, pious and charitable institutions and a sum not exceeding Rs. 25,000
for the erection on the lands of the Jamna Musjid in the old Poor House Road,
Bangalore, of shops and business premises, which were to constitute an
additional endowment of this mosque.
those of the parties to the second suit, all of whom were all the parties to
the first suit. Admittedly the properties left by the testator had been
acquired by him as the result of his own exertions. His will is dated 19th
March 1934. He made specific bequests of immovable property to various
religious, pious and charitable institutions and a sum not exceeding Rs. 25,000
for the erection on the lands of the Jamna Musjid in the old Poor House Road,
Bangalore, of shops and business premises, which were to constitute an
additional endowment of this mosque.
Observation
of Court:
of Court:
n the present case the
residue of the estate was readily ascertainable and the executors were directed
to deliver it over to the wakf trustees with all convenient speed. In these
circumstances, it cannot in our judgment be said with reason that there was
uncertainty with regard to the property dedicated or that the dedication was
subject to a contingency.
residue of the estate was readily ascertainable and the executors were directed
to deliver it over to the wakf trustees with all convenient speed. In these
circumstances, it cannot in our judgment be said with reason that there was
uncertainty with regard to the property dedicated or that the dedication was
subject to a contingency.
The next question is
whether the dedication of that part of the residue which consists of moveable
property is unlawful. Before the passing of the Mussalman Wakf Validating Act,
it was the view of this Court and of other High Courts in India, except the
Allahabad High Court, that there could not be a valid” dedication to wakf
of moveable property, unless it were accessory to land or allowed because of
certain traditions concerning the prophet and the secred writings or there was
a custom to make wakf of it: see Kadir Ibrahim Rowther v. Mohamed Rahamatulla
Rowther (10) 33 Mad. 118. The contesting defendants say that all this has been
changed by the Validating Act of 1913 and we consider that there is great force
in this argument. A “wakf” is there defined as the permanent
dedication of “any property’ for any purpose recognised by the Mussalman
law as religious, pious or charitable.
whether the dedication of that part of the residue which consists of moveable
property is unlawful. Before the passing of the Mussalman Wakf Validating Act,
it was the view of this Court and of other High Courts in India, except the
Allahabad High Court, that there could not be a valid” dedication to wakf
of moveable property, unless it were accessory to land or allowed because of
certain traditions concerning the prophet and the secred writings or there was
a custom to make wakf of it: see Kadir Ibrahim Rowther v. Mohamed Rahamatulla
Rowther (10) 33 Mad. 118. The contesting defendants say that all this has been
changed by the Validating Act of 1913 and we consider that there is great force
in this argument. A “wakf” is there defined as the permanent
dedication of “any property’ for any purpose recognised by the Mussalman
law as religious, pious or charitable.
Judgement:
The memorandum of cross
objections filed by defendant 5 is dismissed, but we do not think it necessary
to make any additional order for costs. The agreement with regard to the
Calcutta Distillery shares referred to in the last paragraph of page 175 of the
judgment of Somayya J. stands. The estate will be administered by the receivers
in accordance with our judgment. If any directions are required they will be
given on application by the receivers to the original side.
objections filed by defendant 5 is dismissed, but we do not think it necessary
to make any additional order for costs. The agreement with regard to the
Calcutta Distillery shares referred to in the last paragraph of page 175 of the
judgment of Somayya J. stands. The estate will be administered by the receivers
in accordance with our judgment. If any directions are required they will be
given on application by the receivers to the original side.
——————————————————–
PUNJAB-HARYANA HIGH COURT
PRITAM SINGH VS ASSISTANT
CONTROLLER OF ESTATE … ON 1 DECEMBER, 1975
CONTROLLER OF ESTATE … ON 1 DECEMBER, 1975
Summarised
Judgement:
Judgement:
Introduction:
This is a petition
filed under Article 226 of the Constitution of India by Pritam Singh,
petitioner, to quash the notice dated October 8, 1974, annexure “P-2”
to the writ petition, issued by the respondent, Assistant Controller of Estate
Duty, Patiala, directing him to file a statement of all the property chargeable
to estate duty owned by his father, Gurbachan Singh, at the time of his death
on March 27, 1971, for reassessment of the estate duty.
filed under Article 226 of the Constitution of India by Pritam Singh,
petitioner, to quash the notice dated October 8, 1974, annexure “P-2”
to the writ petition, issued by the respondent, Assistant Controller of Estate
Duty, Patiala, directing him to file a statement of all the property chargeable
to estate duty owned by his father, Gurbachan Singh, at the time of his death
on March 27, 1971, for reassessment of the estate duty.
Facts
of the Case:
of the Case:
The facts of this case,
are that Gurbachan Singh, the father of the petitioner, Pritam Singh, who was a
Jat Sikh, died on March 27, 1971. A notice under Section 55 of the Estate Duty
Act, 1953 (No. 5 of 1953) (hereinafter described as “the Act”), was
issued by the respondent to the petitioner for filing the return. In compliance
with this direction the petitioner filed the return on March 13, 1972. The
petitioner in his return mentioned that the deceased owned land in three
villages, namely, Dharampura Taraf Saidan Ludhiana, Resubra and Agwar Gujran.
This was claimed to be ancestral property belonging to the joint Hindu family
constituted by the deceased, Gurbachan Singh, and his sons, Pritam Singh and
another. It was stated in the return that the deceased, Gurbachan Singh, and
his sons constituted joint Hindu family and the land and the movable property.
are that Gurbachan Singh, the father of the petitioner, Pritam Singh, who was a
Jat Sikh, died on March 27, 1971. A notice under Section 55 of the Estate Duty
Act, 1953 (No. 5 of 1953) (hereinafter described as “the Act”), was
issued by the respondent to the petitioner for filing the return. In compliance
with this direction the petitioner filed the return on March 13, 1972. The
petitioner in his return mentioned that the deceased owned land in three
villages, namely, Dharampura Taraf Saidan Ludhiana, Resubra and Agwar Gujran.
This was claimed to be ancestral property belonging to the joint Hindu family
constituted by the deceased, Gurbachan Singh, and his sons, Pritam Singh and
another. It was stated in the return that the deceased, Gurbachan Singh, and
his sons constituted joint Hindu family and the land and the movable property.
Observation
of Court:
of Court:
In the instant case, it
has been held above that the decision in Harbans Singh’s case is not correct.
As a matter of fact, no decision was given and, according to the statement made
at the Bar by the counsel for the parties, the case was remanded to the Tribunal
for re-decision of the appeal of the assessee. It has also been held that the
directions given in that decision to the Tribunal are also not correct.
Consequently, this decision, which did not lay down any correct law, cannot be
said to be information within the meaning of Clause (b) of Section 59 of the
Estate Duty Act.
has been held above that the decision in Harbans Singh’s case is not correct.
As a matter of fact, no decision was given and, according to the statement made
at the Bar by the counsel for the parties, the case was remanded to the Tribunal
for re-decision of the appeal of the assessee. It has also been held that the
directions given in that decision to the Tribunal are also not correct.
Consequently, this decision, which did not lay down any correct law, cannot be
said to be information within the meaning of Clause (b) of Section 59 of the
Estate Duty Act.
Therefore, there was no
justification for the respondent to issue the impugned notice, which must be
quashed. In the instant case, the petitioner in his return dated March 13,
1972, in response to the notice issued to him under Section 55 of the Estate
Duty Act, had alleged that the deceased, Gurbachan Singh, constituted joint
Hindu family with his two sons, namely, Pritam Singh, petitioner, and his
brother, that the property mentioned in the return was joint Hindu family
property and that the deceased had one-third share in it. These facts were
admitted to be correct and the assessment order, copy whereof is annexure
“P-1” to the petition, was passed by the Assistant Controller of Estate
Duty on May 1, 1973. The judgment in Harbans Singh’s case did not constitute
any information as the correct law governing the deceased and his family and,
therefore, the impugned notice is invalid and must be quashed.
justification for the respondent to issue the impugned notice, which must be
quashed. In the instant case, the petitioner in his return dated March 13,
1972, in response to the notice issued to him under Section 55 of the Estate
Duty Act, had alleged that the deceased, Gurbachan Singh, constituted joint
Hindu family with his two sons, namely, Pritam Singh, petitioner, and his
brother, that the property mentioned in the return was joint Hindu family
property and that the deceased had one-third share in it. These facts were
admitted to be correct and the assessment order, copy whereof is annexure
“P-1” to the petition, was passed by the Assistant Controller of Estate
Duty on May 1, 1973. The judgment in Harbans Singh’s case did not constitute
any information as the correct law governing the deceased and his family and,
therefore, the impugned notice is invalid and must be quashed.
Judgement:
As a result, this writ
petition is accepted and the impugned notice, copy whereof is annexure
“P-2” to the writ petition, is quashed, and it is held that the
assessment order, annexure “P-1” to the writ petition, was made in
accordance with the provisions of law and it is valid and legal. In view of the
point of law involved, there will be no order as to costs.
petition is accepted and the impugned notice, copy whereof is annexure
“P-2” to the writ petition, is quashed, and it is held that the
assessment order, annexure “P-1” to the writ petition, was made in
accordance with the provisions of law and it is valid and legal. In view of the
point of law involved, there will be no order as to costs.
——————————————————–
MADRAS HIGH COURT
THE DISTRICT COLLECTOR, THE …
VS RAMALINGA NAIDU ON 12 FEBRUARY, 2007
VS RAMALINGA NAIDU ON 12 FEBRUARY, 2007
Summarised
Judgement
Judgement
Intrdouction:
This appeal has been
preferred against the decree and judgment in A.S. No. 28 of 1993 on the file of
the Court of Subordinate Judge, Villupuram. The Defendant in O.S. No. 327/1996
of the file of the Court of District Munsif, Thirukoilur, is the appellant herein.
The plaintiff has filed the suit for recovery of Rs. 4,125/- and also for an
order restraining the defendants and their men from proceeding under the Tamil
Nadu Revenue Recovery Act in pursuance of the orders of the defendants dated
12.4.1985 and 17.5.1985.
preferred against the decree and judgment in A.S. No. 28 of 1993 on the file of
the Court of Subordinate Judge, Villupuram. The Defendant in O.S. No. 327/1996
of the file of the Court of District Munsif, Thirukoilur, is the appellant herein.
The plaintiff has filed the suit for recovery of Rs. 4,125/- and also for an
order restraining the defendants and their men from proceeding under the Tamil
Nadu Revenue Recovery Act in pursuance of the orders of the defendants dated
12.4.1985 and 17.5.1985.
Facts
of the Case:
of the Case:
The short facts in the
plaint relevant for the purpose of deciding this appeal are as follows:
plaint relevant for the purpose of deciding this appeal are as follows:
The plaintiff was
declared as the successful bidder who bid for Rs. 4,250/- per month as rent for
the Arrack shop No. 34 at Sentanadu Village, Ulundurpet Taluk on 29.06.1983 for
the period from 16.07.1983 to 15.07.1984 and he had paid Rs. 1,000/- as earnest
money and also paid Rs. 2,125/- being the half month’s rent and also paid Rs.
1000/- towards the solvency certificate amount. The auction which was held on
29.6.1983 was not confirmed till 29.11.1983 and the same was confirmed on
29.11.1983 by an order in D.Dis.125683/83 passed by the 1st defendant, which
was communicated to the plaintiff on 05.12.1983. Since there was a lapse of five
months the persons who are addicted to drink became regular customers of nearby
arrack shops of adjecent villages viz. Marudur and Arianatham which were
situated only about 2 to 3 kms from the Sentanadu Village.
declared as the successful bidder who bid for Rs. 4,250/- per month as rent for
the Arrack shop No. 34 at Sentanadu Village, Ulundurpet Taluk on 29.06.1983 for
the period from 16.07.1983 to 15.07.1984 and he had paid Rs. 1,000/- as earnest
money and also paid Rs. 2,125/- being the half month’s rent and also paid Rs.
1000/- towards the solvency certificate amount. The auction which was held on
29.6.1983 was not confirmed till 29.11.1983 and the same was confirmed on
29.11.1983 by an order in D.Dis.125683/83 passed by the 1st defendant, which
was communicated to the plaintiff on 05.12.1983. Since there was a lapse of five
months the persons who are addicted to drink became regular customers of nearby
arrack shops of adjecent villages viz. Marudur and Arianatham which were
situated only about 2 to 3 kms from the Sentanadu Village.
The plaintiff felt and
feared that he cannot expect the desired flow of customers to his shop which is
necessary to sustain his shop. So he intimated the 2nd defendant in writing
even some time before the receipt of the confirmation order that he was
withdrawing his bid due to the change of material circumstances and that the
shop may be reauctioned. The Plaintiff had not received any reply to his above
petition.
feared that he cannot expect the desired flow of customers to his shop which is
necessary to sustain his shop. So he intimated the 2nd defendant in writing
even some time before the receipt of the confirmation order that he was
withdrawing his bid due to the change of material circumstances and that the
shop may be reauctioned. The Plaintiff had not received any reply to his above
petition.
Observation
of Court:
of Court:
The learned Special
Government Pleader would contend that the appeal is also hit by the principles
of constructive res judicata in lieu of the order passed under Ex.B.30. The
appellant has filed W.P. No. 7663/85 challenging the order passed by D2/first
appellant dated 7.5.1985 (correct date 17.5.1985 – Ex.A.7). The said writ
petition was dismissed without prejudice to the right of the petitioner if any.
Under such circumstances, the remedy of the plaintiff is to exhaust his appeal
remedy before the appellate forum or Board of Revenue and not to file a Civil
suit since it is specifically barred under Section 56(B) of the Tamil Nadu
Prohibition Act. Under such circumstances, this Court is necessarily to
interfere with the findings of the learned Subordinate Judge, Villupuram, in
A.s. No. 28/1993. Points are answered accordingly.
Government Pleader would contend that the appeal is also hit by the principles
of constructive res judicata in lieu of the order passed under Ex.B.30. The
appellant has filed W.P. No. 7663/85 challenging the order passed by D2/first
appellant dated 7.5.1985 (correct date 17.5.1985 – Ex.A.7). The said writ
petition was dismissed without prejudice to the right of the petitioner if any.
Under such circumstances, the remedy of the plaintiff is to exhaust his appeal
remedy before the appellate forum or Board of Revenue and not to file a Civil
suit since it is specifically barred under Section 56(B) of the Tamil Nadu
Prohibition Act. Under such circumstances, this Court is necessarily to
interfere with the findings of the learned Subordinate Judge, Villupuram, in
A.s. No. 28/1993. Points are answered accordingly.
Judgement:
In fine, the second
appeal is allowed setting aside the decree and Judgment in A.S. No. 28/1993 on
the file of the Court of Subordinate Judge, Villupuram, consequently the suit
filed by the plaintiff in O.S. No. 144/1986 on the file of the Court of
District Munsif, Thirukoilur, is dismissed. The plaintiff is at liberty to
agitate his grievance before the appellate authority as provided under the
Tamilnadu Prohibition Act. No costs.
appeal is allowed setting aside the decree and Judgment in A.S. No. 28/1993 on
the file of the Court of Subordinate Judge, Villupuram, consequently the suit
filed by the plaintiff in O.S. No. 144/1986 on the file of the Court of
District Munsif, Thirukoilur, is dismissed. The plaintiff is at liberty to
agitate his grievance before the appellate authority as provided under the
Tamilnadu Prohibition Act. No costs.
——————————————————–
ALLAHABAD HIGH COURT
JASPREET SINGH GAREWAL VS STATE OF
U.P.AND ANOTHER ON 19 SEPTEMBER, 2019
U.P.AND ANOTHER ON 19 SEPTEMBER, 2019
Summarised
Judgement
Judgement
Introduction:
This application under
Section 482 Cr.P.C. has been filed by applicant-Jaspreet Singh Garewal (a
co-accused) challenging the order dated 02.12.2016 passed by Additional
Sessions Judge, Court No.1, Bareilly in Sessions Trial No.123 of 2013 (State
Vs. Nirmal Singh Garewal and others) under Sections 452 and 307 I.P.C. P.S.
Kotwali Bareilly, District-Bareilly arising out of Case Crime No. 2568 of 2012
under Sections 452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly,
whereby application (Paper No. 309 Kha) filed by accused under Section 309
Cr.P.C. has been rejected.
Section 482 Cr.P.C. has been filed by applicant-Jaspreet Singh Garewal (a
co-accused) challenging the order dated 02.12.2016 passed by Additional
Sessions Judge, Court No.1, Bareilly in Sessions Trial No.123 of 2013 (State
Vs. Nirmal Singh Garewal and others) under Sections 452 and 307 I.P.C. P.S.
Kotwali Bareilly, District-Bareilly arising out of Case Crime No. 2568 of 2012
under Sections 452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly,
whereby application (Paper No. 309 Kha) filed by accused under Section 309
Cr.P.C. has been rejected.
Facts
of the Case:
of the Case:
It transpires from
record that during pendency of S.T. No. 123 of 2013 (State Vs. Nirmal Singh
Garewal and 2 others) one of the accused Nirmal Singh Garewal, the applicant
herein, filed an application under Section 309 Cr.P.C. (Paper No. 309 Kha)
praying therein that S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and
others) under Sections 452 and 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly arising out of Case Crime No. 2568 of 2012 under Sections
452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly be tried alongwith
Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and
others) under Sections 307, 436, 392, 380, 504 and 506 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, arising out of Case Crime No. 2675 of 2012 under
Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, as both the cases are cross cases.
record that during pendency of S.T. No. 123 of 2013 (State Vs. Nirmal Singh
Garewal and 2 others) one of the accused Nirmal Singh Garewal, the applicant
herein, filed an application under Section 309 Cr.P.C. (Paper No. 309 Kha)
praying therein that S.T. No. 123 of 2013 (State Vs. Nirmal Singh Garewal and
others) under Sections 452 and 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly arising out of Case Crime No. 2568 of 2012 under Sections
452, 307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly be tried alongwith
Complaint Case No. 1716 of 2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and
others) under Sections 307, 436, 392, 380, 504 and 506 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, arising out of Case Crime No. 2675 of 2012 under
Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, as both the cases are cross cases.
The aforesaid
application was opposed by opposite party no.2 herein namely Nitin Jaiswal.
Accordingly, an objection (Paper No. 323 Kha) was filed by opposite party no.2
opposing the aforesaid application.
application was opposed by opposite party no.2 herein namely Nitin Jaiswal.
Accordingly, an objection (Paper No. 323 Kha) was filed by opposite party no.2
opposing the aforesaid application.
The Additional Sessions
Judge Court No.1, Bareilly, vide order dated 02.12.2016 rejected the aforesaid
application (Paper No. 309 Kha) filed by accused-applicant Nirmal Singh
Garewal. While rejecting the application (Paper No. 309 Kha), Court below has
held that evidence has been recorded and trial is at the stage of Section 313
Cr.P.C. Secondly, it would not be appropriate to try Complaint Case No. 1716 of
2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 307,
436, 392, 380, 504 and 506 I.P.C., arising out of Case Crime No. 2675 of 2012,
under Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C.
Judge Court No.1, Bareilly, vide order dated 02.12.2016 rejected the aforesaid
application (Paper No. 309 Kha) filed by accused-applicant Nirmal Singh
Garewal. While rejecting the application (Paper No. 309 Kha), Court below has
held that evidence has been recorded and trial is at the stage of Section 313
Cr.P.C. Secondly, it would not be appropriate to try Complaint Case No. 1716 of
2016 (Nirmal Singh Garewal Vs. Nitin Jaiswal and others) under Sections 307,
436, 392, 380, 504 and 506 I.P.C., arising out of Case Crime No. 2675 of 2012,
under Sections 307, 452, 427, 504, 506, 380, 426 and 392 I.P.C.
Observation
of Court:
of Court:
In view of the facts
and circumstances brought before this Court through application No.27370 of
2016 and in view of the earlier orders dated 25.07.2013, 09.04.2014, 23.07.2015
and 07.08.2015 of this Court directing expeditious disposal of the trial in
time bound period, the application No.27370 of 2016 is liable to be allowed
with further direction to trial court for expeditious disposal of the trial by
proceeding from day to day and if possible within two months from the date of
submission of copy of this order before this Court without granting any
unnecessary adjournment to the accused-persons.
and circumstances brought before this Court through application No.27370 of
2016 and in view of the earlier orders dated 25.07.2013, 09.04.2014, 23.07.2015
and 07.08.2015 of this Court directing expeditious disposal of the trial in
time bound period, the application No.27370 of 2016 is liable to be allowed
with further direction to trial court for expeditious disposal of the trial by
proceeding from day to day and if possible within two months from the date of
submission of copy of this order before this Court without granting any
unnecessary adjournment to the accused-persons.
Judgement:
For the facts as noted
herein above and also the reasons recorded, the present recall application is
liable to succeed. Accordingly, the same is allowed. Order dated 15.12.2016
passed by this Court is hereby recalled. The application shall now stand
restored. The same shall be listed for hearing on merits.
herein above and also the reasons recorded, the present recall application is
liable to succeed. Accordingly, the same is allowed. Order dated 15.12.2016
passed by this Court is hereby recalled. The application shall now stand
restored. The same shall be listed for hearing on merits.
———————————————————
UTTARAKHAND HIGH COURT
OM PRAKASH @ ISRAEL @ RAJU @ RAJU
DAS VS UNION OF INDIA AND ANOTHER ON 23 AUGUST, 2019
DAS VS UNION OF INDIA AND ANOTHER ON 23 AUGUST, 2019
Summarised
Judgement
Judgement
Introduction:
This appeal is
preferred by the 3rd defendant against the decree in O.S.No.12561 of 2010 by
the Additional District Judge (FTC-I), Chennai. The suit was laid to declare
that the auction-sale of a suit property by the first and second defendants
under Sec.69 of the Transfer of Property Act (hereinafter the TP Act) is
invalid. The suit was decreed. And, the appellant is the successful bidder in
the said auction. 1.2 Pursuant to the impugned auction, a sale deed came to be
executed in favour of defendants 3 to 6. However, in circumstances to be stated
in due course, defendants 4 to 6 were impleaded midway through the trial of the
suit.
preferred by the 3rd defendant against the decree in O.S.No.12561 of 2010 by
the Additional District Judge (FTC-I), Chennai. The suit was laid to declare
that the auction-sale of a suit property by the first and second defendants
under Sec.69 of the Transfer of Property Act (hereinafter the TP Act) is
invalid. The suit was decreed. And, the appellant is the successful bidder in
the said auction. 1.2 Pursuant to the impugned auction, a sale deed came to be
executed in favour of defendants 3 to 6. However, in circumstances to be stated
in due course, defendants 4 to 6 were impleaded midway through the trial of the
suit.
Facts
of the Case:
of the Case:
The suit property
belongs to Srinivasan, the plaintiff. On 24.01.1994, on the security of the
suit property, the plaintiff obtained a loan of Rs.75,000/- from the first
defendant, and executed a deed of simple mortgage in favour of the latter. The
mortgage authorised the mortgagee to sell the property without the intervention
of the Court as provided in Sec.69 of the TP Act. On the very next day, on
25.01.1994, the plaintiff obtained another loan of Rs.5.25 lakhs from the first
defendant. This loan was not secured. Thereafter, on 25.01.1995, the plaintiff
alleges that he had paid Rs.3.63 lakhs to the first defendant, with an
instruction to adjust the said amount firstly towards the secured debt of
Rs.75,000/- and then adjust the balance towards the unsecured debt of Rs.5.25
lakhs. Subsequently, the plaintiff was constrained to institute O.S.285/97
before the VIII Assistant City Civil Court, Chennai, for the redemption of the
mortgage.
belongs to Srinivasan, the plaintiff. On 24.01.1994, on the security of the
suit property, the plaintiff obtained a loan of Rs.75,000/- from the first
defendant, and executed a deed of simple mortgage in favour of the latter. The
mortgage authorised the mortgagee to sell the property without the intervention
of the Court as provided in Sec.69 of the TP Act. On the very next day, on
25.01.1994, the plaintiff obtained another loan of Rs.5.25 lakhs from the first
defendant. This loan was not secured. Thereafter, on 25.01.1995, the plaintiff
alleges that he had paid Rs.3.63 lakhs to the first defendant, with an
instruction to adjust the said amount firstly towards the secured debt of
Rs.75,000/- and then adjust the balance towards the unsecured debt of Rs.5.25
lakhs. Subsequently, the plaintiff was constrained to institute O.S.285/97
before the VIII Assistant City Civil Court, Chennai, for the redemption of the
mortgage.
Observation
of Court:
of Court:
After hearing both
sides, the trial Court passed a final order in this I.A.12614/1998. Ext.D-4 is
the copy of the Order and Ext.P-5 is the copy of the decretal Order. In its
Ext.D-4 Order, the trial court had passed an Order of injunction, restraining
the first defendant- mortgagee from auctioning the suit property, but on a
condition that the plaintiff should deposit Rs.2,25,325/- on or before
17.03.1999 without prejudice to his case, and that in case of non- compliance
with the condition, the injunction granted would be vacated automatically. On
the point of plaintiff’s allegation about repayment of Rs.3.63 lakhs on
25.01.1994 to the mortgagee, the Court had recorded that the plaintiff had not
produced any material to establish the same.
sides, the trial Court passed a final order in this I.A.12614/1998. Ext.D-4 is
the copy of the Order and Ext.P-5 is the copy of the decretal Order. In its
Ext.D-4 Order, the trial court had passed an Order of injunction, restraining
the first defendant- mortgagee from auctioning the suit property, but on a
condition that the plaintiff should deposit Rs.2,25,325/- on or before
17.03.1999 without prejudice to his case, and that in case of non- compliance
with the condition, the injunction granted would be vacated automatically. On
the point of plaintiff’s allegation about repayment of Rs.3.63 lakhs on
25.01.1994 to the mortgagee, the Court had recorded that the plaintiff had not
produced any material to establish the same.
Judgement:
In conclusion, The
appeal is partially allowed and the decree of the Court below is modified to
the extent of creating a charge over the suit property in favour of the
defendants 3 to 6 for an amount not exceeding Rs.12.0 lakhs. Since this amount
is yet to be determined, this has http://www.judis.nic.in to be worked out only
in a separate suit, if parties do not arrive at a consensus on it. As to the
rest, the judgement and decree in O.S.No.12561 of 2010 on the file of
Additional District Judge, Fast Track Court No.1, Chennai is hereby confirmed.
Cross Objection dismissed since the decree herein passed takes care of the
interest of the cross objectors. Consequently, connected miscellaneous petition
is closed.
appeal is partially allowed and the decree of the Court below is modified to
the extent of creating a charge over the suit property in favour of the
defendants 3 to 6 for an amount not exceeding Rs.12.0 lakhs. Since this amount
is yet to be determined, this has http://www.judis.nic.in to be worked out only
in a separate suit, if parties do not arrive at a consensus on it. As to the
rest, the judgement and decree in O.S.No.12561 of 2010 on the file of
Additional District Judge, Fast Track Court No.1, Chennai is hereby confirmed.
Cross Objection dismissed since the decree herein passed takes care of the
interest of the cross objectors. Consequently, connected miscellaneous petition
is closed.
The Registry is
directed to communicate the charge created by this Court on the suit property
for an amount not exceeding Rs.12.0 lakhs in favour of the defendants 3 to 6 to
the concerned Sub Registry forthwith.
directed to communicate the charge created by this Court on the suit property
for an amount not exceeding Rs.12.0 lakhs in favour of the defendants 3 to 6 to
the concerned Sub Registry forthwith.
To enable the Registry
to intimate the concerned Sub Registry, and to preserve the status quo in the
interregnum there will be an order of interim injunction restraining the
plaintiff to alienate, or otherwise encumber the property for a period of three
months. D) No costs.
to intimate the concerned Sub Registry, and to preserve the status quo in the
interregnum there will be an order of interim injunction restraining the
plaintiff to alienate, or otherwise encumber the property for a period of three
months. D) No costs.
——————————————————–
ALLAHABAD HIGH COURT
POP SINGH VS STATE OF U.P. ON 13
FEBRUARY, 2019
FEBRUARY, 2019
Summarised
Judgement
Judgement
Introduction:
The present Criminal
Appeal has been preferred by the accused appellant Pop Singh against the
judgement and order dated 15.2.2013/16.2.2013, passed by the Additional
sessions Judge/Special Judge. E.C. Act Badaun in S.T. No. 688 of 2009 (State
Vs. Pop Singh and 3 others) whereby the accused appellant has been convicted
under section 302 IPC and consequently sentenced to life imprisonment along
with fine of Rs. 10,000/-. Upon failure to deposit the amount of fine, the
accused appellant is to further undergo rigorous imprisonment of 1 year.
Appeal has been preferred by the accused appellant Pop Singh against the
judgement and order dated 15.2.2013/16.2.2013, passed by the Additional
sessions Judge/Special Judge. E.C. Act Badaun in S.T. No. 688 of 2009 (State
Vs. Pop Singh and 3 others) whereby the accused appellant has been convicted
under section 302 IPC and consequently sentenced to life imprisonment along
with fine of Rs. 10,000/-. Upon failure to deposit the amount of fine, the
accused appellant is to further undergo rigorous imprisonment of 1 year.
Facts
of the Case:
of the Case:
The occurrence leading
to the conviction of the appellant under the impugned judgement and order is
alleged to have occurred in broad day light at 2.00 p.m. on a chilly winter day
i.e. on 12.12.2008. Four persons namely Satyaveer, son of Poshaki Lal, Ramesh
son of Hakim Singh, Mukesh son of Dharmveer, Hakim son of Poshaki Lal are said
to be at their home. All of a sudden on the above mentioned day and time 5
persons namely Khushiram son of Mihilal armed with licensed revolver, Ravindra
son of Khargi armed with illegal weapon, Jiraj son of Ramautar armed with
illegal weapon, Doctor Rishi son of Khargi Singh armed with licensed rifle and
Pop Singh son of Anokhe armed with illegal weapon with a common object are
alleged to have aggressed at the house of Hakim Singh. They then are said to
have abused the inmates and exclaimed that no one should go free. Immediately
thereafter they started firing of which one shot struck Ramesh alias Nanhoo in
his stomach. Somehow rest of the persons who are said to be present in the
house, sneaked inside the house and thus managed to save themselves. On the
loud alarm raised by the above named inmates, large number of villagers came on
the spot. Thereafter, the injured is alleged to have been taken to C.H.C.
Bisauli/Government Hospital, where he succumbed to the fire arm injury
sustained by him.
to the conviction of the appellant under the impugned judgement and order is
alleged to have occurred in broad day light at 2.00 p.m. on a chilly winter day
i.e. on 12.12.2008. Four persons namely Satyaveer, son of Poshaki Lal, Ramesh
son of Hakim Singh, Mukesh son of Dharmveer, Hakim son of Poshaki Lal are said
to be at their home. All of a sudden on the above mentioned day and time 5
persons namely Khushiram son of Mihilal armed with licensed revolver, Ravindra
son of Khargi armed with illegal weapon, Jiraj son of Ramautar armed with
illegal weapon, Doctor Rishi son of Khargi Singh armed with licensed rifle and
Pop Singh son of Anokhe armed with illegal weapon with a common object are
alleged to have aggressed at the house of Hakim Singh. They then are said to
have abused the inmates and exclaimed that no one should go free. Immediately
thereafter they started firing of which one shot struck Ramesh alias Nanhoo in
his stomach. Somehow rest of the persons who are said to be present in the
house, sneaked inside the house and thus managed to save themselves. On the
loud alarm raised by the above named inmates, large number of villagers came on
the spot. Thereafter, the injured is alleged to have been taken to C.H.C.
Bisauli/Government Hospital, where he succumbed to the fire arm injury
sustained by him.
Obesrvation
of Court:
of Court:
Thus, having considered
the submissions made by the learned counsel for the appellant, and after
evaluating the evidence on the record in the light of the parameters of
evaluation of evidence by a court of appeal, as laid down by the Apex Court as
well as this Court, the inescapable conclusion is that the court below has
erred in convicting the accused appellants by simply believing the testimony of
P.W.1 and P.W.2 as reliable and credible and accepting the prosecution case as
probable. The Court below has not adverted to the various circumstances which
we have referred to above and discussed, which create a serious dent in the
prosecution case by making it highly improbable.
the submissions made by the learned counsel for the appellant, and after
evaluating the evidence on the record in the light of the parameters of
evaluation of evidence by a court of appeal, as laid down by the Apex Court as
well as this Court, the inescapable conclusion is that the court below has
erred in convicting the accused appellants by simply believing the testimony of
P.W.1 and P.W.2 as reliable and credible and accepting the prosecution case as
probable. The Court below has not adverted to the various circumstances which
we have referred to above and discussed, which create a serious dent in the
prosecution case by making it highly improbable.
Judgement:
We are, therefore, of
the considered opinion that the appeal must succeed. Accordingly, the present
criminal appeal succeeds and is allowed. The judgement/order dated
15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge.
E.C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others)
under section 302 IPC, is set aside. The appellant is acquitted of the charge
framed against him. The appellant is in jail. He shall be released forthwith.
His bail bonds are cancelled and the sureties are discharged.
the considered opinion that the appeal must succeed. Accordingly, the present
criminal appeal succeeds and is allowed. The judgement/order dated
15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge.
E.C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others)
under section 302 IPC, is set aside. The appellant is acquitted of the charge
framed against him. The appellant is in jail. He shall be released forthwith.
His bail bonds are cancelled and the sureties are discharged.
——————————————————
MADRAS HIGH COURT
M/S.AL ROSTAMANI INTERNATIONAL …
VS THE OFFICIAL LIQUIDATOR ON 26 OCTOBER, 2009
VS THE OFFICIAL LIQUIDATOR ON 26 OCTOBER, 2009
Summarised
Judgement
Judgement
Introduction:
The appellant in all
the appeals is M/s.AL Rostamani International Exchange. The Original Side
Appeal Nos.281 and 319 of 2009 are arising out of the order dated 17.07.2009
passed by this Court in Company Application Nos.2296 of 2008 and 141 of 2009
respectively, whereas, the Original Side Appeal No.7 of 2010 is filed against
the order dated 23.12.2008 passed by this Court in Company Application No.1104
of 2008.
the appeals is M/s.AL Rostamani International Exchange. The Original Side
Appeal Nos.281 and 319 of 2009 are arising out of the order dated 17.07.2009
passed by this Court in Company Application Nos.2296 of 2008 and 141 of 2009
respectively, whereas, the Original Side Appeal No.7 of 2010 is filed against
the order dated 23.12.2008 passed by this Court in Company Application No.1104
of 2008.
Facts
of the Case:
of the Case:
The brief facts common
to all the appeals are as follows:
to all the appeals are as follows:
The Company SIV
Industries Ltd was directed to be wound up by the Company Court by its order
dated 25.08.2004. The Official Liquidator was directed to sell the properties
of the company in liquidation, so as to settle the claims against the company.
The land admeasuring about 260.89 acres together with building, plant and
machinery was drawn for auction sale. Initially, the bid of a third party
purchaser – Jalal Nasar was confirmed for Rs.236 Crores and EMD of Rs.10 Crores
was deposited. The successful bidder was permitted to deposit the balance EMD
of Rs.13.60 Crores on or before 16.11.2007. The applications for extension of
time and for permission to inspect the premises were rejected on 23.11.2007,
with a direction to forfeit the amount deposited and fresh auction was ordered
by the Company Court with participation from the second respondent, the second
highest bidder and Maharashtra Steel Rolling Mills.
Industries Ltd was directed to be wound up by the Company Court by its order
dated 25.08.2004. The Official Liquidator was directed to sell the properties
of the company in liquidation, so as to settle the claims against the company.
The land admeasuring about 260.89 acres together with building, plant and
machinery was drawn for auction sale. Initially, the bid of a third party
purchaser – Jalal Nasar was confirmed for Rs.236 Crores and EMD of Rs.10 Crores
was deposited. The successful bidder was permitted to deposit the balance EMD
of Rs.13.60 Crores on or before 16.11.2007. The applications for extension of
time and for permission to inspect the premises were rejected on 23.11.2007,
with a direction to forfeit the amount deposited and fresh auction was ordered
by the Company Court with participation from the second respondent, the second
highest bidder and Maharashtra Steel Rolling Mills.
The orders of the
Company Court were challenged in OSA Nos.381 to 383 of 2007 by Jalal Nasar and
the second respondent.
Company Court were challenged in OSA Nos.381 to 383 of 2007 by Jalal Nasar and
the second respondent.
Observation
of Court:
of Court:
We are completely in
agreement with the learned single Judge in rejecting the application in
C.A.No.141 of 2009 and inapplicability of Section 58. At the cost of
repetition, the allegation of fraud as against a third party to the winding up
proceedings, who has entered into an agreement with a participant in the
auction proceedings, would have to be proved in a separate independent
proceedings. Therefore, it is open to the appellant to initiate appropriate
proceedings.
agreement with the learned single Judge in rejecting the application in
C.A.No.141 of 2009 and inapplicability of Section 58. At the cost of
repetition, the allegation of fraud as against a third party to the winding up
proceedings, who has entered into an agreement with a participant in the
auction proceedings, would have to be proved in a separate independent
proceedings. Therefore, it is open to the appellant to initiate appropriate
proceedings.
Unjust
enrichment:
enrichment:
Regarding the
allegation of unjust enrichment, as rightly held by the learned single judge,
the forfeiture would not amount to unjust enrichment and the plea of equity
cannot be invoked in contractual matters. As held above, there is no privity
between the appellant and the first respondent. In the instant case, the
forfeiture was ordered by the Division Bench only after granting extension on
several times. The SLP filed by the second respondent was also dismissed by the
Apex Court in the presence of the appellant. Therefore, the issue cannot be
again agitated before this Court.
allegation of unjust enrichment, as rightly held by the learned single judge,
the forfeiture would not amount to unjust enrichment and the plea of equity
cannot be invoked in contractual matters. As held above, there is no privity
between the appellant and the first respondent. In the instant case, the
forfeiture was ordered by the Division Bench only after granting extension on
several times. The SLP filed by the second respondent was also dismissed by the
Apex Court in the presence of the appellant. Therefore, the issue cannot be
again agitated before this Court.
Judgement:
Therefore, he cannot plead
ignorance of the fact. Further, during the pendency of the appeal in
O.S.A.No.281 of 2009, similar relief in the nature of earmarking and desisting
from disbursement of amounts was sought for in M.P.No.1 of 2009, which was
dismissed and was unsuccessfully challenged by the appellant before the Apex
Court as well. In view of the same, we are not inclined to grant any relief in
this appeal.
ignorance of the fact. Further, during the pendency of the appeal in
O.S.A.No.281 of 2009, similar relief in the nature of earmarking and desisting
from disbursement of amounts was sought for in M.P.No.1 of 2009, which was
dismissed and was unsuccessfully challenged by the appellant before the Apex
Court as well. In view of the same, we are not inclined to grant any relief in
this appeal.
In the result, all the
original side appeals fail and they are dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
original side appeals fail and they are dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
——————————————————
MADRAS HIGH COURT
N.MARAPPAN VS V.S.T.SENGOTTAIAN
Summarised
Judgement
Judgement
Facts
of the Case:
of the Case:
The above said suit was
filed by the appellants herein against the respondents for the following
reliefs: (1) a declaration that the Partnership Dissolution Deed dated
11.12.1985 entered into by the appellants/plaintiffs 1 and 2, respondents 1 to
5/defendants 1 to 5 and late V.S.Thangavel is true, valid and binding on the
respondents/defendants; (2) a consequential permanent injunction restraining
the respondents/defendants from in any manner interfering with the suit
property either by creating encumbrance or by making any alienation or
otherwise; (3) a permanent injunction restraining the respondents/defendants
from trespassing into any portion of the suit property; (4) a permanent
injunction restraining the respondents/defendants from in any way altering the
physical features of the suit property either by putting up constructions or
otherwise; and (5) for a direction against the respondents/defendants to pay
the costs of the appellants/plaintiffs.
filed by the appellants herein against the respondents for the following
reliefs: (1) a declaration that the Partnership Dissolution Deed dated
11.12.1985 entered into by the appellants/plaintiffs 1 and 2, respondents 1 to
5/defendants 1 to 5 and late V.S.Thangavel is true, valid and binding on the
respondents/defendants; (2) a consequential permanent injunction restraining
the respondents/defendants from in any manner interfering with the suit
property either by creating encumbrance or by making any alienation or
otherwise; (3) a permanent injunction restraining the respondents/defendants
from trespassing into any portion of the suit property; (4) a permanent
injunction restraining the respondents/defendants from in any way altering the
physical features of the suit property either by putting up constructions or
otherwise; and (5) for a direction against the respondents/defendants to pay
the costs of the appellants/plaintiffs.
Observation
of Court:
of Court:
As pointed out supra,
the plaintiffs have not chosen to seek a declaration of title in respect of the
suit property. In such a situation, it is unnecessary to go into the question
of title. Even then, incidentally, this court can take note of the fact that
the suit property, which was originally the joint family property of
V.S.Thangavel and defendants 1 to 5, came to be thrown into the common stock of
the partnership firm under Ex.A3-Partnership deed and that it remained the
property of the partnership firm and it did not lose its character thereafter.
The alleged partnership dissolution effected under Ex.A4 has not been
substantiated. Therefore, the suit property continues to be the stock of the
partnership firm. As such, the appellants herein/plaintiffs cannot succeed in
their effort to get a prohibitory injunction against the other partners in
respect of the enjoyment of the suit property. Hence the finding of the court
below that the plaintiffs have not proved their entitlement to get a decree for
permanent injunction as prayed for, cannot be found fault with and the same
deserves to be confirmed. Point No.7 is answered accordingly.
the plaintiffs have not chosen to seek a declaration of title in respect of the
suit property. In such a situation, it is unnecessary to go into the question
of title. Even then, incidentally, this court can take note of the fact that
the suit property, which was originally the joint family property of
V.S.Thangavel and defendants 1 to 5, came to be thrown into the common stock of
the partnership firm under Ex.A3-Partnership deed and that it remained the
property of the partnership firm and it did not lose its character thereafter.
The alleged partnership dissolution effected under Ex.A4 has not been
substantiated. Therefore, the suit property continues to be the stock of the
partnership firm. As such, the appellants herein/plaintiffs cannot succeed in
their effort to get a prohibitory injunction against the other partners in
respect of the enjoyment of the suit property. Hence the finding of the court
below that the plaintiffs have not proved their entitlement to get a decree for
permanent injunction as prayed for, cannot be found fault with and the same
deserves to be confirmed. Point No.7 is answered accordingly.
Judgement:
In view of the answers
given to point Nos.3, 4, 5, 6 and 7, this court comes to the conclusion that
the decree of the trial court dismissing the suit O.S.No.313/2007 filed by the
appellants herein/plaintiffs does not deserve any interference by this court;
that there is no merit in the appeal and that the same deserves to be dismissed
confirming the decree of the trial court, namely First Additional District
Judge, Erode dated 07.12.2009 in O.S.No.313 of 2007.
given to point Nos.3, 4, 5, 6 and 7, this court comes to the conclusion that
the decree of the trial court dismissing the suit O.S.No.313/2007 filed by the
appellants herein/plaintiffs does not deserve any interference by this court;
that there is no merit in the appeal and that the same deserves to be dismissed
confirming the decree of the trial court, namely First Additional District
Judge, Erode dated 07.12.2009 in O.S.No.313 of 2007.
In the result, the
appeal suit is dismissed, confirming the judgement and decree of the First
Additional District Judge, Erode dated 07.12.2009 made in O.S.No.313 of However,
there shall be no order as to cost. Consequently, the connected miscellaneous
petition is closed.
appeal suit is dismissed, confirming the judgement and decree of the First
Additional District Judge, Erode dated 07.12.2009 made in O.S.No.313 of However,
there shall be no order as to cost. Consequently, the connected miscellaneous
petition is closed.
——————————————————
UTTARAKHAND HIGH COURT
MANI PUSHPAK JOSHI VS STATE OF
UTTARAKHAND ON 3 APRIL, 2019
UTTARAKHAND ON 3 APRIL, 2019
Summarised
Judgement
Judgement
Facts
of the Case:
of the Case:
Briefly put, the case
of the revisionist was that a FIR being FIR No. 138/2017 was registered under
Section 376(2) IPC read with Section 5/6 POCSO Act was registered at Thana
Haldwani, District Nainital as against one – Bablu Bisht, a teacher in the
School, owned by revisionist, who is said to have been involved in commission
of an offence as referred above. As per the narration of the set of allegations
levelled in the said FIR, it was alleged therein that Bablu Bisht, who was a
teacher, working in a school, being run and managed by Ankit Joshi are said to
have been involved in physically molesting a minor girl student of only 5½
years age, of the school run under the name and style of “Aurum The Global
School, Haldwani”.
of the revisionist was that a FIR being FIR No. 138/2017 was registered under
Section 376(2) IPC read with Section 5/6 POCSO Act was registered at Thana
Haldwani, District Nainital as against one – Bablu Bisht, a teacher in the
School, owned by revisionist, who is said to have been involved in commission
of an offence as referred above. As per the narration of the set of allegations
levelled in the said FIR, it was alleged therein that Bablu Bisht, who was a
teacher, working in a school, being run and managed by Ankit Joshi are said to
have been involved in physically molesting a minor girl student of only 5½
years age, of the school run under the name and style of “Aurum The Global
School, Haldwani”.
The complainant to the
said FIR i.e. Harpreet Singh, who is the father of the victim, had lodged an
FIR alleging therein that for couple of months together, the accused – Bablu
Bisht, was alleged in the FIR with allegation to be involved in commission of
an offence under Section 376(2) with his minor daughter of the complainant, who
was a student of Class-I. In terms of the FIR, as lodged on 19.04.2017, in the
FIR, it was alleged that the daughter of the complainant named as Harlin Kaur,
who was of only 5½ years of age and student of class I, has been mentally and
physically exploited by the accused persons, named in the FIR, and
particularly, as per the set of allegation which has been levelled it was
against the teacher, who used to forcefully touched the private parts of the
minor daughter of the complainant, and by taking her in the bathroom, he is accused
of having committed the offence under Section 376(2) upon her. Not only this,
the accused are also said to have threatened the victim and the complainant not
to divulge the said incident to anyone, otherwise they would take severe action
against the daughter of the complainant.
said FIR i.e. Harpreet Singh, who is the father of the victim, had lodged an
FIR alleging therein that for couple of months together, the accused – Bablu
Bisht, was alleged in the FIR with allegation to be involved in commission of
an offence under Section 376(2) with his minor daughter of the complainant, who
was a student of Class-I. In terms of the FIR, as lodged on 19.04.2017, in the
FIR, it was alleged that the daughter of the complainant named as Harlin Kaur,
who was of only 5½ years of age and student of class I, has been mentally and
physically exploited by the accused persons, named in the FIR, and
particularly, as per the set of allegation which has been levelled it was
against the teacher, who used to forcefully touched the private parts of the
minor daughter of the complainant, and by taking her in the bathroom, he is accused
of having committed the offence under Section 376(2) upon her. Not only this,
the accused are also said to have threatened the victim and the complainant not
to divulge the said incident to anyone, otherwise they would take severe action
against the daughter of the complainant.
Observation
of Court:
of Court:
In the present case,
when the trial was proceeding after the submission of the chargesheet on
17.07.2017, an Application under Section 319 of Cr.P.C. was filed by the
accused/applicant, praying for that the revisionist may be summoned by invoking
the provisions contained under Section 319 read with Sections 33 (1) of the
POCSO Act. The accused/ applicant to the application had submitted that in the
light of set of allegations which could be reflected from the statement of the
victim under Section 161, as well as under Section 164 before the Magistrate as
recorded on 24.04.2017, it apparently shows and discloses a relevant fact to
the effect that there is an involvement and presence of a second person in the
commission of the crime and no action has been proceeded against him and as per
the statement of victim made under Section 164, it reflects the involvement of
the revisionist.
when the trial was proceeding after the submission of the chargesheet on
17.07.2017, an Application under Section 319 of Cr.P.C. was filed by the
accused/applicant, praying for that the revisionist may be summoned by invoking
the provisions contained under Section 319 read with Sections 33 (1) of the
POCSO Act. The accused/ applicant to the application had submitted that in the
light of set of allegations which could be reflected from the statement of the
victim under Section 161, as well as under Section 164 before the Magistrate as
recorded on 24.04.2017, it apparently shows and discloses a relevant fact to
the effect that there is an involvement and presence of a second person in the
commission of the crime and no action has been proceeded against him and as per
the statement of victim made under Section 164, it reflects the involvement of
the revisionist.
Hence, on account of
various reasons which have been given in the application though not relevant
for the present revision, the accused/applicant had submitted that the Court
can always invoke its powers under Section 319 from the view point that for a
complete criminal administration of justice, it is a procedural in nature and lays
on the parameters under which the Court should proceed in order to ultimately
ventured and find out the involvement of the actual accused persons so that the
truth may prevail and the accused persons may not escape trial due to their
social influence which they exercise.
various reasons which have been given in the application though not relevant
for the present revision, the accused/applicant had submitted that the Court
can always invoke its powers under Section 319 from the view point that for a
complete criminal administration of justice, it is a procedural in nature and lays
on the parameters under which the Court should proceed in order to ultimately
ventured and find out the involvement of the actual accused persons so that the
truth may prevail and the accused persons may not escape trial due to their
social influence which they exercise.
Judgemnent:
Accordingly, this Court
is of the view that the learned trial Court has not committed any mistake or
error apparent which would call for interference in the present revision, hence
this revision fails and is accordingly dismissed.
is of the view that the learned trial Court has not committed any mistake or
error apparent which would call for interference in the present revision, hence
this revision fails and is accordingly dismissed.
——————————————————
INCOME TAX APPELLATE TRIBUNAL –
KOLKATA
KOLKATA
KUMAR TRADERS, KOLKATA VS
DEPARTMENT OF INCOME TAX ON 12 SEPTEMBER, 2014
DEPARTMENT OF INCOME TAX ON 12 SEPTEMBER, 2014
Summarised
Judgement
Judgement
Introduction:
Since all these appeals
relate to different assessees but involve the common issue, therefore all these
appeals are disposed off by this common order. All these twelve appeals have
been filed by the revenue against the respective order of CIT(A), Kolkata dtd.
23.12.2009 in ITA Nos.574 to 577, dated 24.12.2009 in ITA No. 578, ITA Nos. 579
and 581, dated 23.12.2009 in ITA Nos.580,582,583 and 585, and dated 22.12.2009
in ITA No.584 for the assessment years 1999-2000 by taking the following common
grounds of appeal
relate to different assessees but involve the common issue, therefore all these
appeals are disposed off by this common order. All these twelve appeals have
been filed by the revenue against the respective order of CIT(A), Kolkata dtd.
23.12.2009 in ITA Nos.574 to 577, dated 24.12.2009 in ITA No. 578, ITA Nos. 579
and 581, dated 23.12.2009 in ITA Nos.580,582,583 and 585, and dated 22.12.2009
in ITA No.584 for the assessment years 1999-2000 by taking the following common
grounds of appeal
Facts
of the Case:
of the Case:
he brief facts of this
case are that the original assessment was made u/s 143(3) determining total
loss at Rs.29,44,890/- vide order dt. 15.2.2002. Subsequently, a search and
seizure operation was carried out on Polar group on 9.1.1999 and in the course
of the search, two laptop computers were found and seized from the possession
of Shri Sunil Kumar Agarwal. From the print out taken from the laptop computers
under identification no. LP-1 to LP-10 and on the basis of the confession made
by Shri Sunil Kumar Agarwal that he had taken cash loan from market which were
not disclosed in the regular books of accounts, a notice u/s 148 was issued on
17.3.2006 after recording the following reasons :
case are that the original assessment was made u/s 143(3) determining total
loss at Rs.29,44,890/- vide order dt. 15.2.2002. Subsequently, a search and
seizure operation was carried out on Polar group on 9.1.1999 and in the course
of the search, two laptop computers were found and seized from the possession
of Shri Sunil Kumar Agarwal. From the print out taken from the laptop computers
under identification no. LP-1 to LP-10 and on the basis of the confession made
by Shri Sunil Kumar Agarwal that he had taken cash loan from market which were
not disclosed in the regular books of accounts, a notice u/s 148 was issued on
17.3.2006 after recording the following reasons :
“17.03.2006 A
search and seizure operation was conducted against the Polar Group on
09.01.1999 and in course of search and seizure operation two laptop computers
were found and seized from the possession of Sri Sunil Kumar Agarwal. Sri Sunil
Kumar Agarwal is the key person of the whole Polar group. Subsequently, the
laptop computers were retrieved and the print outs were taken under the (Asst.
Year: 1999-2000) Identification Mark LP-1 to LP-10. On perusal of the books of
accounts LP-1 to LP- 10, it revealed that these are nothing but undisclosed
entries of business transactions and loan transactions of the whole Polar Group
and all the transaction were in cash.
search and seizure operation was conducted against the Polar Group on
09.01.1999 and in course of search and seizure operation two laptop computers
were found and seized from the possession of Sri Sunil Kumar Agarwal. Sri Sunil
Kumar Agarwal is the key person of the whole Polar group. Subsequently, the
laptop computers were retrieved and the print outs were taken under the (Asst.
Year: 1999-2000) Identification Mark LP-1 to LP-10. On perusal of the books of
accounts LP-1 to LP- 10, it revealed that these are nothing but undisclosed
entries of business transactions and loan transactions of the whole Polar Group
and all the transaction were in cash.
Observation
of the Court:
of the Court:
Considering the fact
and that the service of notice u/s. 143(2) is mandatory, it makes no
difference, whether a revised return was filed by the assessee in response to
notice u/s. 148 or request was made to treat the earlier return filed u/s. 139
as return filed in response to the notice u/s. 148 of the Act. Further, it is
also of no significance that the assessing officer continued the assessment
proceeding by issuing notice u/s. 142(1) and due compliance of the same was
made by the assessee. Recently, this issue was considered and examined in
details by Hon’ble ITAT, Ahmedabad and it was held that notice u/s. 142(1)
cannot be deemed as notice u/s. 143(2) of the Act. Accordingly, it was held
that non-issue of notice u/s. 143(2) will (Asst. Year: 1999-2000) invalidate an
assessment u/s. 147 read with sec. 143(3) of the Act (ITO – Vs – Smt. Sukhin
Modi & Ors. – 295 ITR (AT) 169 Ahmedabad (2007). The position of law is
well settled that if the requirement of a statute which prescribes the manner
in which something I to be done are expressed in negative language, that is to
say, if the statute enacts that it shall be done in such a manner and in no
other manner, such requirements are, in all cases absolute and neglect to
attend to such requirement will invalidate the whole proceeding. Considering
above it is held that since the re- assessment order u/s. 147/143(3) of the Act
has been framed without issuing statutory notice u/s.143(2), the assessment is
bad in law and accordingly annulled.
and that the service of notice u/s. 143(2) is mandatory, it makes no
difference, whether a revised return was filed by the assessee in response to
notice u/s. 148 or request was made to treat the earlier return filed u/s. 139
as return filed in response to the notice u/s. 148 of the Act. Further, it is
also of no significance that the assessing officer continued the assessment
proceeding by issuing notice u/s. 142(1) and due compliance of the same was
made by the assessee. Recently, this issue was considered and examined in
details by Hon’ble ITAT, Ahmedabad and it was held that notice u/s. 142(1)
cannot be deemed as notice u/s. 143(2) of the Act. Accordingly, it was held
that non-issue of notice u/s. 143(2) will (Asst. Year: 1999-2000) invalidate an
assessment u/s. 147 read with sec. 143(3) of the Act (ITO – Vs – Smt. Sukhin
Modi & Ors. – 295 ITR (AT) 169 Ahmedabad (2007). The position of law is
well settled that if the requirement of a statute which prescribes the manner
in which something I to be done are expressed in negative language, that is to
say, if the statute enacts that it shall be done in such a manner and in no
other manner, such requirements are, in all cases absolute and neglect to
attend to such requirement will invalidate the whole proceeding. Considering
above it is held that since the re- assessment order u/s. 147/143(3) of the Act
has been framed without issuing statutory notice u/s.143(2), the assessment is
bad in law and accordingly annulled.
We noted that the apex
court in the case of ITO vs. Purushottam Das Bangur and Another, 224 ITR 362
(SC) has settled the law on this issue that at the time of initiation of the
proceedings u/s. 147, the Assessing Officer should have the material relevant
to the assessee. The information received from the Investigation Wing is also
material if it contains the information regarding the assessee. The Assessing
Officer at the time of recording of the reasons/formation of belief is not
supposed to counter the evidence or material collected by him with the
assessee. Even the source of the material cannot be asked by the assessee. If
the material or the information belongs to the assessee, in our opinion, the
Assessing Officer has a bona fide belief to record the reasons.
court in the case of ITO vs. Purushottam Das Bangur and Another, 224 ITR 362
(SC) has settled the law on this issue that at the time of initiation of the
proceedings u/s. 147, the Assessing Officer should have the material relevant
to the assessee. The information received from the Investigation Wing is also
material if it contains the information regarding the assessee. The Assessing
Officer at the time of recording of the reasons/formation of belief is not
supposed to counter the evidence or material collected by him with the
assessee. Even the source of the material cannot be asked by the assessee. If
the material or the information belongs to the assessee, in our opinion, the
Assessing Officer has a bona fide belief to record the reasons.
Judgement:
We, therefore, set
aside the order of CIT(A) in respect of all the assessees on this issue and
hold that the AO has ‘reason to believe’ to initiate the re-assessment
proceedings. Since we noted in the preceeding paragraph the CIT(A) has not
given any finding on the ground of the assessee that initiation of the
proceedings are barred by limitations, this issue will automatically get
survived before CIT(A).
aside the order of CIT(A) in respect of all the assessees on this issue and
hold that the AO has ‘reason to believe’ to initiate the re-assessment
proceedings. Since we noted in the preceeding paragraph the CIT(A) has not
given any finding on the ground of the assessee that initiation of the
proceedings are barred by limitations, this issue will automatically get
survived before CIT(A).
In the result, All the
appeals filed by the Revenue are allowed.
appeals filed by the Revenue are allowed.
——————————————————–
AS
– 01012019
– 01012019