Civil Litigation

Civil Law is known for civil procedure code, 1908, in India. There are three things in this Act by which this act is going on/functioning:

  1. SECTION
  2. ORDER
  3. RULES
  4. CIVIL PROCEDURE CODE: It is a complete code itself. Once proceedings are initiated there under, rights and remedies have to be looked into.

There are four modes to decide the matters under the civil procedure code by the courts:

  • CIVIL JUDGE
  • ADDITIONAL DISTRICT JUDGE
  • SMALL CLAUSES COURT
  • HIGH COURTS, IN CERTAIN CASES (WHERE THE JURISDICTION IS MORE THAN 2 Crore after amendment in Delhi High Court Rules 2015.)

We Deals in Certain Matters under This Laws and Act:-

  • CIVIL MONEY RECOVERY SUIT
  • CIVIL RIGHTS CASES
  • SUIT FOR INJUNCTION AND DAMAGES
  • MONEY RECOVERY SUIT UNDER SECTION XXXVII CIVIL PROCEDURE CODE
  • RENT SUIT
  • PROBATE OF WILL SUIT.
  • SUIT FOR DECLARATION & POSSESSION SUIT
  • ANTI INJUNCTION SUIT
  • SUIT FOR PERMANENT & MANDATORY INJUNCTION SUIT
  • SUIT FOR PARTITION & POSSESSION
  • SUIT FOR DIVISION,PARTITION AND POSSESSION OF PROPERTY
  • SUIT UNDER INDIAN SUCCESSION ACT
  • SUIT FOR PROBATE IN RESPECT OF WILL OF PROPERTY
  • SUIT FOR POSSESSION OF PROPERTY AND DECLARATION
  • SUIT FOR STAY IN RESPECT OF PROPERTY
  • SUIT FOR PARTITION AND DIVISION IN PROPERTY
  • ALL THE SUITS UNDER THE CIVIL PROCEDURE CODE AND CIVIL LAWS.

the Supreme Court had been approached by the NRI husband whose defence had been struck off in a maintenance suit filed by the wife in the High Court as he had not appeared in the High Court despite the High Court�s order directing him to personally appear and giving him several opportunities. The High court had directed him to personally appear to give clarifications to the court on the circumstances in which the US court had proceeded with and granted decree in a divorce petition filed by the husband in the US despite order of restraint having been issued by the Indian court against the proceedings in the US. The High Court had also rejected his application for exemption from personal appearance on the basis that he apprehended that he would be arrested in the case under Section 498 A, IPC filed by the wife.

The Supreme Court upheld the High Court�s order and held that Order X of CPC is an enabling �provision that gives powers to courts for certain purposes. The Delhi High Court was therefore justified in requiring the husband to personally appear before the Court for his clarification, especially since the affidavit of his counsel in America annexed with the affidavit filed in the trial court was not enough to clarify the position and his father, as found by the trial court, could not throw further light in the matter, having not been present during the proceedings in America. Also the inherent powers of the Court under Section 151 C.P.C. can always be exercised to advance interests of justice and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.

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Supreme Court of India
Vikas Aggarwal vs Anubha on 12 April, 2002
Author: B Kumar
Bench: D.P. Mohapatra, Brijesh Kumar
           CASE NO.:
Appeal (civil) 2660  of  2002



PETITIONER:
VIKAS AGGARWAL

	Vs.

RESPONDENT:
ANUBHA

DATE OF JUDGMENT:	12/04/2002

BENCH:
D.P. Mohapatra & Brijesh Kumar




JUDGMENT:

BRIJESH KUMAR, J.

Leave granted.

Heard learned counsel for the parties. This appeal has been preferred against the judgment and order dated 18.10.2000 passed by Delhi High Court dismissing the appeal challenging the order by which appellant’s defence was struck of in the proceeding, suit No.1966 of 1999 pending in Delhi High Court on the Original side.

The appellant and the respondent were married on 11.05.1999. Thereafter they went to USA. They do not seem to have pulled on well so much so that the appellant filed a divorce petition in America as early as on 22.7.1999. The notice of the said proceedings was served on the respondent. She however, left America and somehow managed to come back to India. She filed a suit on 6.9.1999 in Delhi High Court being Suit No.1966 of 1999 impleading the appellant Shri Vikas Agarwal as defendant and praying that a decree be passed declaring that the plaintiff is entitled to live separately, for maintenance amounting to 1500 dollars (Rs.65,250/-) expenses pendantalite etc. and for such other, further orders, directions as the Court would deem fit and proper in the circumstances of the case, so as to meet the ends of justice. The learned Single Judge of Delhi High Court passed an interim order on 5.11.1999 in the following terms:-

“For the present in the interest of justice, and since no permanent prejudice is likely to be caused to the Defendants if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A. is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State at Connecticut, U.S.A. for a period of thirty days from today.”

The appellant however, moved an application on 12.11.1999 for recall of the order dated 5.11.1999. The Court was later on informed on 16.12.1999 that decree for divorce had been passed at Connecticut U.S.A. The learned Single Judge, on 9.3.2000 passed an order, directing the defendant to appear in person, under order 10 C.P.C. The defendant preferred an appeal against the Order dated 9.3.2000 before the Division Bench which was withdrawn with a statement that an application will be moved before the learned Single Judge for recall of the order. It will not be necessary to mention about many other applications, which have been moved in that connection from time to time. The fact remains that ultimately by order dated 24.8.2000, the Court struck of the defence of the appellant: The operative part of the order reads as under:-

“It is quite clear that despite several opportunities granted to the defendant to appear before this Court he has resolutely refused to do so. The defence of defendant is therefore, struck of.”

An appeal preferred against the said order before the Division Bench of the High Court has also been dismissed which order has been impugned in the present appeal. It appears that need to seek clarification from the defendant-appellant arose when it came to the notice of the learned Single Judge of Delhi High Court that on 23rd November, 1999 the Court in America passed decree of divorce despite the order of restraint against the defendant passed on 5.11.1999. The Court seems to have doubts if the order passed by it was truly communicated to the American Court since there was no mention at all about that fact in the order passed by the American Court. The appellant also moved an application for seeking exemption from appearing in the Court in Delhi, as he apprehended that on coming to India he may be arrested in pursuance of the proceedings initiated against him under Section 498-A of the Indian Penal Code. By order dated July 3, 2000 the learned Single Judge took care of the same and provided that the defendant would not be arrested in pursuance to any complaint or pending FIR filed by the plaintiff. The defendant was required to appear on August 24, 2000. He again failed to appear in the Court, instead an affidavit of the Attorney of the appellant in America was filed stating that he had brought the injunction order to the notice of the American Court, but the Court had refused to enforce any restraint order, as Indian Court had no jurisdiction over the U.S. Court’s proceedings. Such information, it is submitted on behalf of Respondent, as furnished through affidavit also leads to the inference that the interim order dated November 5, 1999 was not correctly placed at all before the American Court as the Delhi High Court had not passed any order putting any restraint on the American Court to proceed with the matter. The restraint order was against the defendant, namely the appellant before us. It is submitted on behalf of the Respondent that the defendant-appellant should also have moved appropriate application along with interim order before the court in America. In this back ground, the learned Single Judge ordered for presence of the defendant in Court under Order 10 CPC. On non-compliance of the said order, ultimately the defence was struck of.

Shri Vikas Singh learned counsel appearing for the appellant has vehemently urged that Order X CPC would not be applicable at all and the order of the Delhi High Court in that respect is invalid. Our attention has been brought to Order X CPC which reads as under:-

Examination of parties by the Court.

1. Ascertainment whether allegations in pleadings are admitted or deniedAt the first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The court shall record such admission and denials.

2. Oral examination of party, or companion of party.– (1) At the first hearing of the suit, the court

(a) shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in the court, as it deems fit; and

(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in court or his pleader is accompanied.

(2) At any subsequent hearing the court may orally examine any party appearing in person or present in court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.

(3) The court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.}

3. Substance of examination to be written. the substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.

4. Consequence of refusal or inability of pleader to answer.(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”

On the basis of the above provision, it is submitted that a party can be examined under Order X CPC on the first hearing of the suit, but that stage has not yet reached in the present case. It is submitted that first hearing of the suit would not be any date before a date fixed for settlement of issues. In that connection, he has placed reliance upon certain decisions in which first date of hearing has been indicated in reference to rent control disputes between landlord and tenant. The next contention is that under Rule 4 of Order X a party may be required to appear where the counsel or the person accompanying the pleader refuses to or is unable to answer any material question relating to the suit. In the present case, it is submitted that the information sought was furnished to the Court. There was no refusal on the part of the counsel or the person accompanying the counsel, namely father of the defendant appellant to answer the questions. Therefore, it was not necessary to order for personal attendance of the defendant. Yet another submission is that question in relation to which a party is required to be present to be examined should be an important or material question relating to the suit. It is submitted that the defendant was not required to give clarification to any such important or material question. It is submitted that for the above three reasons the order is bad. Yet another submission which has been made is that no order of injunction could be passed against a foreign court in view of the provisions contained under Section 41(a) & (b) of the Specific Relief Act.

Shri Shanti Bhushan, learned Senior Counsel appearing for the respondent submitted that the questions raised by the learned counsel for the appellant are not relevant, since undisputedly there is non-compliance of the order passed by the Court requiring the defendant to be personally present in the Court. It is submitted that the Section 41 (a) & (b) of the Specific Relief Act would not bar passing of an order as passed on 5.11.1999 by the learned Single Judge of Delhi High Court since such a bar is in relation to the superior Courts i.e. to say the Courts in India, it would not apply to Courts out side India and next that the restraint order is against the party namely, the defendant, who was restrained from proceedings in the matter for a period of one month. (reliance has been placed on 1987(1) SCC 496 Oil and Natural Gas Commission Vs. Western Company of North America). It has been held in an appropriate case, it is open to pass a restraint order against a party in proceedings pending in foreign courts. It is further submitted that the learned Single Judge had passed the injunction order on 5.11.1999 for a period of one month, but the decree was granted on 23.11.1999. The defendant was bound by the order and should not have taken any steps in furtherance of the proceedings pending in American Court. On the other hand, the decree of divorce shows that the decree was sought and passed on agreement (no fault divorce) between the parties which is described as fair and equitable. The agreement is also stated to be attached with the decree. It is also to be seen that columns meant for alimony etc. were left blank. The defendant was restrained by the learned Single Judge of Delhi High Court, at the instance of the wife, the respondent, from further proceeding in the divorce case. It is submitted that this itself shows that the divorce was far from one on the basis of agreement. In this view of the matter, learned counsel for the respondent submits that the Court rightly felt need for personal appearance of the defendant for clarification. The defendant failed to appear on one ground or the other and lastly on the ground of apprehension of loosing job in America.

This Court also gave time to the learned counsel for the appellant to find out in case it would be possible for him to appear before the learned Single Judge of Delhi High Court. The learned counsel has placed before the Court a letter received from the appellant addressed to his counsel dated March 7,2002 expressing his inability to visit India for another 6 to 9 months due to financial and job constraints. He further informs that he is involved in many mission- critical projects. Therefore, granting of leave, would also not be possible, to him. It is also indicated that he has no property, no house, no bank account, no job and no place to live in India. These facts are hardly relevant for the purposes of present matter. We need not go into the other facts and circumstances, which have been placed by the learned counsel for the respondent to show the manner in which, within two months of the marriage, the appellant had filed “no fault divorce” in American Court and obtained decree on agreement in the teeth of injunction order dated 5.11.1999 passed by Delhi High Court and the appellant having abandoned the plaintiff-respondent in America and the difficulties with which she managed to return to India.

Shri Shanti Bhushan, learned senior counsel appearing on behalf of the respondent submits that in the facts and circumstances of the case as indicated above, the learned Single Judge of the Delhi High Court was quite justified in requiring the defendant-appellant to personally appear before the Court for his clarification. It is further submitted that the affidavit of the counsel for the appellant in America annexed with the affidavit filed in the trial court was not enough to clarify the position and the father of the appellant, as found by the trial court, could not throw further light in the matter, having not been present during the proceedings in America. So far the question regarding first date of hearing is concerned, it is too technical a ground to consider the matter like one in hand. The decisions which have been relied upon relate to the disputes between tenant and landlord and while interpreting the term “first date”, the provisions of the Rent Control Statutes have also been taken into account. It is submitted that inherent powers of the Court under Section 151 C.P.C. can always be exercised to advance interests of justice and the technicalities will have no place in such matters. In this connection a reference has been made to a decision of this Court reported in (1966) 3 S.C.R. 856 – M/s. Ram Chand and Sons Sugar Mills Pvt. Ltd. Versus Kanhaya Lal Bhargava and others. In this case also the defendant was required to attend the Court to answer certain questions but flouted the order and did not appear. Ultimately the defence was struck of. The contention that inherent powers under Section 151 CPC could not be exercised was repelled and it was held that there was nothing in Order XXXIX of the Code which expressly or by necessary implication precluded the exercise of inherent power of Court under Section 151 CPC and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court. A reference has also been made to a decision reported in 1962 Supp. (1) S.C.R. 450 – Manohar Lal Chopra versus Rai Bahadur Rao Raja Seth Hiralal so as to indicate the wide scope of Section 151 CPC where as per the majority view, in the facts and circumstances of the case, it was open to pass an injunction order under Section 151 CPC where it may not be in conflict with any provision of Order XXXIX of the Code or other provision of law. The submission which has been advanced by the learned counsel for the respondent is that in the present case the learned trial court was totally justified in requiring the presence of the defendant and on his failure to comply with that order the trial court rightly struck of defence which order would be perfectly justified in view of inherent powers of the Court under Section 151 CPC besides other powers vested in it.

We would like to observe that Order X CPC in an enabling provision providing that the court at the first hearing of the suit shall ascertain from each party about their pleadings. It does not in any manner place any bar on the powers of the court to seek clarification from any party in an appropriate case, at any date earlier than one fixed for framing of issues so as to advance the interest of justice. It would not be in violation of Order X CPC or in conflict thereof. Considering the facts and circumstances of the case we agree with the submission made on behalf of the respondent and find that the appeal lacks merit so as to call for any interference by us under Article 136 of the Constitution.

In the result the appeal is dismissed with costs.

In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.
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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff

4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.

5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:

“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.

Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.

In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”

9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.

13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

suit for declaration and permanent injunction,

The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
—————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 3725-3726 OF 2015
[Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]

H. Lakshmaiah Reddy & Ors. .. Appellants

-vs-

L. Venkatesh Reddy .. Respondent

J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are preferred against judgment dated 8.9.2010 in R.S.A.
No.1500 of 2009 by which the High Court of Karnataka at Bangalore allowed
the Second Appeal filed by the respondent herein and against the final
order dated 25.11.2010 in RP No.398/2010 by which the High Court dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the suit
property was purchased in the name of Guramma under registered sale deed
dated 14.11.1959 and sale consideration was paid by the first defendant and
after the death of Guramma, the first defendant married Jayamma in 1973 and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well as
the first defendant being the legal heirs of Guramma had succeeded to the
suit property and the first defendant gifted a portion of suit property
measuring 5 acres in favour of defendants 2 to 5 by registered gift deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after consideration of oral and
documentary evidence dismissed the suit. On the appeal preferred by the
plaintiff, the lower appellate court held that the plaintiff and the first
defendant being class-I heirs of deceased Guramma are entitled to half
share each in the suit property and decreed the suit in part. Challenging
the same the plaintiff preferred second appeal and the High Court allowed
the same by setting aside the judgment of the lower appellate court and
decreed the suit in full as prayed for. Aggrieved by the same the
defendants have preferred the present appeals. For the sake of convenience,
the parties are described in this judgment as arrayed in the suit.
6. Mr. Basavaprabhu S. Patil, the learned senior counsel appearing for
the appellants mainly contended that the High Court has failed to note that
the plaintiff himself had never pleaded a case of relinquishment of the
share by the first defendant in the suit property and what was pleaded in
the plaint was that he had succeeded to the property of his mother
absolutely and his father namely the first defendant has consented before
the revenue authorities for change of name in the Katha in favour of the
plaintiff in respect of the suit schedule property and thus the first
defendant had acquiesced to the fact of the entire suit property being put
in the name of the plaintiff and according to the learned counsel the
mutation entry can never be considered as relinquishment of right or title
and the High Court has committed a serious error in accepting the case of
the plaintiff and in support of his submissions relied on the decision of
this Court in Balwant Singh and another vs. Daulat Singh (Dead) by Lrs.
And ors. [(1997) 7 SCC 137].
7. Per contra the learned Senior counsel appearing on behalf of the
respondents contended that pursuant to the statement made by the 1st
defendant to the Revenue Authorities, the entire suit property was put in
the name of plaintiff, by effecting mutation entry in Katha and revenue
records and thus the 1st defendant, by his conduct had acquiesced to the
said fact, as rightly held by the High Court. Alternatively the learned
senior counsel contended that even if this Court holds in law that the 1st
defendant continues to be the title holder of half of suit property as
class-I heir of deceased Guramma, in view of special circumstances, the
justice of the case does not require interference or the relief could be
moulded in a different fasion. In support of his submission he relied on
Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad (1999) 2 SCC 635 and
Chandra Singh & Ors. Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8. We considered the rival contentions. There is no dispute in the
factual matrix. Guramma was the first wife of 1st defendant and the
plaintiff was their only son and suit property was purchased by Guramma by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in her name in
revenue record. The plaintiff was born on 1.10.1965 and Guramma died on
20.1.1966. As per Section 15 of the Hindu Succession Act, the husband and
the son of deceased Guramma, namely 1st defendant and the plaintiff, being
class-I heirs succeeded to the suit property. As per Exh. P-8, Katha of
suit property was changed to the name of plaintiff from his mother on
9.1.1990 and the endorsement therein made by the Tahsildar reveals that
the 1st defendant accepted the mutation of entry in the name of the
plaintiff, being their only son and on the basis of the said declaration,
the mutation was effected and it was not challenged. Exh. D-10 is the RTC
extract covering the period from 1989 to 1992 and the plaintiff was shown
as the owner of the suit property.
9. As rightly contended by the learned senior counsel apearing for the
appellants, 1st defendant did not relinquish or release his right in
respect of the half share in the suit property at any point of time and
that is also not the case pleaded by the plaintiff. The assumption on the
part of the High Court that as a result of the mututation, 1st defendant
divested himself of the title and possession of half share in suit
property is wrong. The mutation entries do not convey or extinguish any
title and those entries are relevant only for the purpose of collection
of land revenue. The observations of this Court in Balwant Singh’s case
(supra) are relevant and are extracted below :
“21. We have considered the rival submissions and we are of the view that
Mr Sanyal is right in his contention that the courts were not correct in
assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi
lost her title from that date and possession also was given to the persons
in whose favour mutation was effected. In Sawarni vs. Inder Kaur (1996) 6
SCC 223, Pattanaik, J., speaking for the Bench has clearly held as
follows: (SCC p. 227, para 7)
“7. … Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire judgment.”

22. Applying the above legal position, we hold that the widow had not
divested herself of the title in the suit property as a result of Mutation
No. 1311 dated 19-7-1954. The assumption on the part of the courts below
that as a result of the mutation, the widow divested herself of the title
and possession was wrong. If that be so, legally, she was in possession on
the date of coming into force of the Hindu Succession Act and she, as a
full owner, had every right to deal with the suit properties in any manner
she desired.”

In the circumstances, we are of the opinion that the High Court erred in
concluding that the 1st defendant by his conduct had acquiesced and
divested himself of title of his half share in suit property and the
said erroneous conclusion is liable to be set aside.
10. The learned senior counsel appearing for the respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years old and owns
lots of properties as enumerated in the list furnished by him before this
Court and the plaintiff is his only son through first wife and litigation
pertains to only one property namely the suit property and though this
Court gave ample opportunities, no settlement could be arrived at
between the parties and considering the special circumstances, this Court
in exercise of jurisdiction under Article 142 of the Constitution may not
interfere with the High Court judgment, which will do complete justice to
the parties and relied on the decisions cited supra.
11. We are not in a position to appreciate this contention. The High
Court misdirected itself and committed serious error warranting our
interference with the impugned judgment.
12. In the result the impugned judgment and decree of the High Court are
set aside and the judgment and decree of the lower appellate court is
restored and the appeals are allowed in the above terms. No costs.

…………………………….J.
(V. Gopala Gowda)

…………………………….J.
(C. Nagappan)
New Delhi;
April 17 , 2015

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

——————————————————————————————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff
4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.
5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:
“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.
Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.
In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”
9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.
13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

real estate law

On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom.

———————————————————————————————————————————————————————————————————-

 

Madhya Pradesh High Court

Munnilal Shyamle And Anr. vs Bhaiyalal Hazari And Ors. on 29 August, 1960

Equivalent citations: AIR 1962 MP 34

Author: Shrivastava

Bench: T Shrivastava, S Bhargava

JUDGMENT Shrivastava J.

  1. This Letters Patent appeal has been filed against the judgment of a single Judge of this Court (Chaturvedi J.) in Second Appeal No. 278 of 1957.
  2. The suit out of which that second appeal arose was filed by respondents 1 and 2 (Bhaiyalal and Bhajni) against the appellants Munnilal and Ramdayal as defendants 1 and 2 and respondent No. 3 Bharosa as defendant No. 3. For convenience we shall refer to respondents 1 and 2 as the plaintiffs and the appellants Munnilal and Ramdayal as the defendants.
  3. The subject-matter of the suit was 29.29 acres of land, situated in Khiria Khawas, Tahdil Rebli District Sagar, as also a house in that village. These properties belonged to Bharosa (respondent No. 3). On 30-9-1953 he contracted to sell these properties to the defendants. On 3-10-1953 the defendants gave a notice to the plaintiffs and others that they were purchasing the suit properties from Bharosa. On 2-12-1953 they filed a suit for specific performance against Bharosa and that suit was decreed. In April 1955, the defendants, dispossessed the plaintiffs from the land in execution of the decree obtained in the suit for specific performance.
  4. The plaintiffs’ (respondents 1 and 2) case was that on 20-9-1953, i.e., 10 days prior to the contract in favour of the defendants, Bharosa had contracted to sell the suit properties to them and had taken Rs. 600/- as part payment towards the sale price. The agreement was to execute a sale-deed within two months from that date. Such a sale-deed was executed in their favour on 25-1-1954. They continued in possession of the suit properties thereafter till they were dispossessed in April 1955 by the defendants. The plaintiffs, therefore, prayed that the decree obtained by the defendants in the suit for specific performance of the contract was not binding on them and they were entitled to get back possession of the suit properties.
  5. The defendants resisted the suit on the ground that the contract, dated 20-9-1953, was really entered into to defeat their claim on the basis of the contract dated 30-9-1953. According to them, it was an ante-dated document without consideration. They further contended that the sale-deed, dated 25-1-1954, which was executed during the pendency of the suit for specific performance, was hit by Section 52 of the Transfer of Property Act and was not, therefore, binding on them.
  6. The trial Court dismissed the suit upholding the contentions of the defendants that the plaintiffs’ contract was ante-dated and was entered into on 2-10-1953 after the contract with the defendants and with full knowledge of that contract. The Court also held that as the transfer was pendente lite, the plaintiffs were bound by the result of the suit for specific performance. The lower appellate Court, however, reversed these findings of the trial Court and concluded that the agreement, dated 20-9-1953 was real, genuine and for consideration. It further held that the defendant’s took the subsequent agreement, dated 30-9-1953, with the knowledge of the agreement in favour of the plaintiffs. Accordingly, it held that the doctrine of lis pendens did not apply to case and under Section 40 of the Transfer of Property Act the defendants could not claim possession of the lands as against the plaintiffs. The suit was accordingly decreed.

In second appeal, though the appellants had raided several grounds, the appeal was decided only on the question whether the transaction in favour of the plaintiffs was hit by Section 52 of the Transfer of Property Act. The learned single Judge came to the conclusion that that section did not apply to the facts of the case. The appeal was accordingly dismissed and it is against that decision that the defendants 1 and 2 have filed this Letters Patent appeal.

  1. Section 52 of the Transfer of Property Act provides that the property in suit cannot be transferred or otherwise dealt with by any party to the suit, so as to affect the rights of any other party thereto under any decree or order which may be made therein. The requirements of Section 52 were stated to be: (i) the pendency of a suit (ii) non-collusive character of the suit, (iii) any right to immovable property being in question in that suit and (iv) the other party having some right under the decree in that suit. If these requirements are satisfied, the other party is not bound by the transfer made during the pendency of the suit. (See Hiranya Bhusan v. Gouri Dutt, AIR 1943 Cal 227). The doctrine with which Section 52 is concerned rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail.
  2. As provided in Section 54 of the Transfer of Property Act, a contract for the sale of immoveable property does not, of itself, create any interest in or charge on such property. On the basis of such a contract, it is not therefore possible to contend that an interest in the property has been created. If a sale takes place in enforcement of such, a contract during the pendency of a suit, the sale cannot affect the parties to the suit. Under the English Law, a contract of sale for real property makes the purchaser the owner in equity of the estate. Such a distinction is not recognised in India. (See Maung Shwe Goh v. Maung Inn, AIR 1916 PC 139 and also Mohammad Saddiq v. Ghasi Ram, AIR 1946 Lah 322 (FB)). Accordingly, by a mere agreement to sell no interest in the immoveable property is created. The observations from Blackwood v. London Chartered Bank of Australia, 1874 LR 5 PC 92 at p. 111, quoted by the learned single Judge have no application to India where the distinction between legal and equitable estate does not exist
  3. The first case referred to by the learned single Judge is Sheikh Bikala v. Sheik Ali, AIR 1950 Orissa 210. In that case, a mortgage was created by the defendant prior to the institution of the suit during the pendency of which sale in enforcement of the mortgage took place. It was held that that transfer was not affected by Section 52 of the Transfer of Property Act. The reason for this is that the transfer had already taken place prior to the institution of the suit and it was only that right which was later enforced. The only principle which was laid down in that case is that rights prior to the institution of the suit are not affected by Section 52. The same principle has been laid down in Renuka Bala v. Nagendra Nath, AIR 1939 Cal 055, which is the second case referred to.
  4. In the third case, Narayan Prasad v. Rajkishore, AIR 1951 Pat 613, A had agreed to grant a lease to B of a cinema theatre at a future date provided B made the necessary repairs to make it fit for purpose of cinema shows within a period of 9 months. B entered into possession under the agreement to make the repairs. C who had notice of this contract took a lease from A of the theatre within the period of 9 months. On A’s failure to give possession, C sued A for specific, performance and obtained a decree. During the pendency of the suit, A executed a registered lease in favour of B in pursuance of the prior agreement. B then brought a suit against C for injunction restraining him from executing the decree against him. It was held, under these circumstances, that B was not bound by the result of the suit filed by C as his rights were in enforcement of a prior agreement.

It appears from the discussion in paragraph 4 of that judgment that the agreement to lease was actually treated as a lease, as Section 2 of the Transfer of Property Act defines a lease to include “an agreement to lease”. According to that definition, an agreement to lease is not just an agreement but it “effects an actual demise and operates as a lease”. Under these circumstances, the agreement in that case operated as a transfer of property and the doctrine of lis pendens did not therefore apply, as the subsequent transfer was merely to enforce the earlier transfer. That case, therefore, fell within the principle laid down in the Orissa and the Calcutta cases, cited in the earlier paragraph.

  1. The fourth case which has been cited by the learned single Judge is Guru Basappa v. Santhappa, 48 Mad LJ 496 : AIR 1925 Mad 710. In that case, a sale-deed was executed prior to the suit for specific performance, but it was registered after the institution thereof. In such a case, the registration of a document under the Registration Act operates from the date of the document and therefore in that case the transfer really took place before the suit. Naturally, “therefore, the doctrine of lis pendens did not apply, as the case did not at all fall within Section 52 of the Transfer of Property Act. The observations of their Lordships that the mere filing of a Plaint by any person in respect of the property already conveyed would not prevent the vendee from enforcing his rights under the document, which had been executed, fully disposed of the case before them. And the further observations that the vendee in such a case could sue for specific performance of the contract of sale were unnecessary and are in the nature of obiter. The respondents 1 and 2, in the instant case, do not derive any help from that decision.
  2. In the cases relied upon by the learned single Judge we do not find anything directly laying down that a sale after the suit in pursuance of an agreement before the suit is protected against the operation of Section 52 of the Transfer of Property Act
  3. In Bishan Singh v. Khazan Singh, AIR1958 SC 838, their Lordships of the Supreme Court laid down the principle in the following words:

“The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a preexisting right. If the sale is a transfer in recognition of a pre-existing, and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.”

In our opinion, the expression “pre-existing and subsisting” right was intended by their Lordships to refer to a transaction amounting to a transfer of interest in property and not to a mere agreement to sell.,

  1. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, the question arose in the context of a transfer of a specific item of joint Hindu family property by a co-sharer pending a partition action in pursuance of an agreement entered into prior to that suit. It was held that the sale was hit by Section 52 of the Transfer of Property Act, though the alienee was entitled to work out his equities in the partition suit. The conclusion was supported thus:

“The terms of Section 52 are quite clear that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as So affect the rights of any other party thereto during the pendency of the suit Or proceeding. The transfer under Section 54 can be effected only by a registered instrument. The facts establish beyond doubt that the sale was effected only after the institution of the suit. So, on the date of the filing of the suit, defendants 2 and 3 had a right in the B schedule properties. The fact that they entered into an agreement prior to that date to sell the properties to the 5th defendant does not affect the application of Section 52 of the Transfer of Property Act.”

  1. On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom 93). The contention that respondents 1 and 2 did not have any notice of the suit, which was filed by the appellants for specific performance, has therefore no force.
  2. Shri R. K. Pandey for the respondents points out that the lower appellate Court had found that respondents 1 and 2 had been placed in possession of the property on 20-9-1953 and the appellants had notice of their contract on 30-9-1953. Shri Pandey further contends that as the sale in favour of respondents 1 and 2 was in writing and as they were placed in possession, they had a right to contest the appellants’ claim under Section 53A of the Transfer of Property Act. If the vendor himself could not claim possession from the respondents, the position of the appellants could be no better. Shri B. L. Seth, learned counsel for the appellants, on the other hand, contests the accuracy of these findings on the ground that they are contrary to the pleadings of the plaintiffs in the case and are not supported by any evidence.
  3. As we have said earlier, the learned single Judge decided the second appeal on the abstract proposition of law that a transfer in pursuance of a prior agreement to sell cannot be affected by Section 52, The other points, which were raised in the grounds of appeal, were not considered by him, as the decision on this point was considered sufficient to dispose of the appeal. The decision in the Letters Patent appeal should be confined to examining the correctness of the point actually decided by the learned single Judge. It will not be right for us to decide all the other grounds raised in support of the appeal. Accordingly, the only proper course which should, in our opinion, be adopted in this case is to send back the case for a decision on the other points.
  4. Accordingly, the decision of the learned single Judge dismissing the second appeal is set aside. The appeal shall now be heard as a second appeal on other grounds raised by the appellants. Costs of this Letters Patent appeal shall be borne in accordance with such orders as may be passed in second appeal in this respect.

 

 

Order 39 Rule 1 & 2 of C.P.C. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise

 

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

 

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Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721

Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra)

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

 

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THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.                OF 2009

(Arising out of SLP (Civil) No. 18934 of 2008)

 

 

Zenit Mataplast P. Ltd.                               ….Appellant

 

Versus

 

State of Maharashtra and Ors.                         ….Responde

 

JUDGMENT

Dr. B.S. Chauhan, J.

  1. Leave granted.
  2. This appeal has been filed against the order of the Bombay High Court dated 5.2.2008 rejecting the application for interim relief while admitting the Writ Petition No. 7245/2006 and expediting its hearing against the allotment of land by the respondent No.2 in favour of respondents nos.4 and 5.
  3. The facts and circumstances giving rise to this case are that appellant, a Private Ltd. Company, incorporated under the provisions of Companies’ Act 1956, is indulged in manufacturing of press components, moulded components, soft luggage, moulded luggage and other travel goods, tools, moulds jigs, dies fixtures and other engineering goods and carrying its business on a land measuring 4050 sq. meters on plot no.F-18 in the Satpur industrial Estate, Nasik. The appellant submitted an application dated 30.11.2005 (Annexure P-3) for allotment of 8000 sq. yards land from the adjacent vacant land on a prescribed form complying with other requirements. The said application was rejected by the respondent no.2, the Maharashtra Industrial Development Corporation (hereinafter referred to as `Corporation’), a Maharashtra Government Undertaking constituted under the provisions of Maharashtra Industrial Development Act, 1961 (for short 1961 Act). In fact, the Corporation has powers and duties to make allotment of land for industrial purposes. It appears that vide letter dated 14.3.2005 to the Hon’ble Chief Minister of Maharashtra, the respondent no.4, M/s. Mahendra & Mahendra Ltd., a leading industrial Company, asked for providing pending dues of incentives which were extended to it earlier. In the said letter it was also pointed out that the respondent no.4 has entered into a collaboration with automobile company Renault and intended to set up a joint venture for manufacturing of car, “The Logan” into India and the said respondent was locating the project at Nasik (Maharashtra) or Zahirabad (Andhra Pradesh) or at any other new place in Uttranchal. In the said letter, a demand for land measuring 5 to 8 acres for parking facilities at Satpur Industrial Estate, Nasik and 3 to 4 acres parking plot outside the existing factory gate at Nasik was also included. The Government of Maharashtra vide letter dated 10.6.2005 promised that the respondent no. 2 – Corporation would provide maximum possible vacant land in the existing area at the applicable rates and the Corporation would further facilitate acquisition of additional land identified by the Corporation for its project as well as for locating the cluster of industrial units (Annexure R.4/R.5). The Government of Maharashtra accorded the status of “Mega Project” to the forthcoming project of respondent no. 4 known as `Logan Car Project’ at Nasik vide letter dated 11.11.2005 (Annexure R.4/R.6). Respondent no. 4 submitted an informal application dated 23.11.2005 to the Respondent No. 2 to make the allotment of designated Open Space, Plot Nos. 8 and 9, in its favour. The user of land was changed from open space to Industrial Area vide resolution dated 10.2.2006 and plot was renumbered as 126, instead of Open Space No.9, by the respondent-corporation. The formal application was submitted for that purpose by the respondent no. 4 on 1.3.2006 to the respondent no. 2 (Annexure R.4/R.9). Respondent No. 2, vide letter dated 27.3.2006 (Annexure R.4/R.10), allotted the land measuring 17 acres in favour of the respondent no. 4 for a total premium of 7,51,14,600/- after changing the user of the land from vacant space to industrial. On the same date, namely, 27.3.2006, the respondent no. 4 was put in possession of the said land and an agreement for licence/lease was executed between respondent no. 2 and respondent no. 4 on 3.7.2006. A part of open space was also converted as a “parking space” and it was allotted in favour of respondent no.5 for parking of vehicles.
  4. The appellant made various representations to the Respondent No. 2, Corporation particularly, dated 15.3.2006, 3.4.2006, 25.8.2006, 3.10.2006 and 10.10.2006, pointing out that rejection of its application and allotment of huge area of land in favour of respondent Nos .4 and 5 was discriminatory and violative of laws and particularly the statutory requirement which provided for allotment of land to the neighbouring unit holders. The appellant asked that it may be allotted some part of the remaining land from the designated vacant land whose land user has been converted from open space to industrial Area. As no order was passed on its representations, the appellant filed the writ petition in October 2006 before the High Court. However, the Court admitted the writ petition, expedited the hearing of the writ petition but rejected the application for interim relief. Hence, this appeal.
  5. Shri Dushyant Dave, learned senior counsel appearing for the appellant has submitted that the application of the appellant has been rejected without assigning any reason whatsoever and probably the reason may be that on the date of passing the order the land was merely a designated vacant land and not meant for industrial purpose. However, in order to favour the respondent No.4, a big industrial house, the State authorities passed the directions to the respondent- Corporation to allot open space after change of user. Application of respondent no.4 was processed in haste and all consequential orders have been passed within a very short span of time. Land has been allotted to Respondent No.4 on the direction of the higher authorities, which is not permissible in law. Thus, such a course is violative of Article 14 of the Constitution of India. The writ petition filed by the appellant would become infructuous, if the respondent no.4 is permitted to develop the allotted land. The High Court ought to have granted the interim relief. Therefore, the appeal deserves to be allowed.
  6. On the contrary, Shri Bhaskar P. Gupta, learned senior counsel appearing for respondent No.4 has submitted that there had been large number of offers by various States to Respondent No.4 to set up the industry for the purpose of production of cars/jeeps and various incentives were offered, particularly, by the States of Madhya Pradesh and Andhra Pradesh. However, as it has several units in Maharashtra, the respondent No.4 made application to the Hon’ble the Chief Minister for allotment of land and after considering the facts, it was decided to make the allotment of land at Satpur Industrial Estate Nasik, as the appellant was having about four other units in close vicinity thereof. It is also submitted by Shri Gupta that no law has been violated and the authorities proceeded strictly in conformity with the statutory requirements. Respondent no.4 has already invested a huge amount in the project. Appellant did not approach the HighCourt promptly. Thus, the High Court has rightly refused to grant the interim relief. Impugned order does not require any interference.
  7. Shri Shyam Divan, learned senior counsel appearing for the respondent-Corporation has submitted that when the application of the appellant was rejected, the land in dispute was a designated vacant land and therefore, it could not be allotted for any industrial purpose. The land was allotted to the respondent no.4 after change of user, considering the requirement of respondent No.4 and taking into consideration various other factors, particularly, the development of the city keeping in mind that the industry of respondent No.4 would provide job to large number of persons and the people of the local area would be benefitted otherwise also. Appellant cannot be heard complaining against the allotment in dispute, as it is in consonance with all the statutory requirements. Interim relief could not be granted at a belated stage as the appellant had not filed the petition before the High Court immediately after allotment of the land. Thus, the interim application has rightly been rejected by the High Court.. The appeal has no merit, thus liable to be dismissed.
  8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
  9. It is evident from the site plan that a large number of plots had been carved out from the huge area of land and in between, an open vacant space being No.9 was left. It is also evident from the said site plan that after plot Nos. F-13, F-14 and F-15, there was a vacant space and then, plot Nos. F- 18, F-19 etc. Thus, there must have been plot Nos. F-16 and F-17 between plot nos.F-15 and F-18, at one stage. The land in dispute was adjacent to said two plots also. The appellant had demanded the land from Plot Nos. F- 16 and F-17. However, there is nothing on record to show as to how these two plots bearing Nos. F-16 and F-17 could disappear from the site plan and become part of Open Space No.9.
  10. Application of the appellant has been rejected vide order dated 19.12.2005 without assigning any reason and it cannot be said as to whether the application was rejected merely on the ground that the land in dispute, at that time was a designated vacant land and not meant for the industrial purpose, thus, its application could not be entertained. On the contrary, admittedly in the year 2004, a part Plot No. F-17 (vacant space) measuring about 500 Sq.Mtrs. had been allotted to BSNL without the change of the user. No explanation could be furnished by the respondents as to under what circumstances such an allotment was permissible.
  11. So far as the allotment to respondent No.4 is concerned, this had been under the directions of the State Government to the Corporation. The Corporation changed the land user and made the allotment of land to the extent of 17 acres and the possession had been handed over immediately. The license deed had been executed and all the proceedings had been taken in close proximity of time. Letter written by respondent No.4 dated 14th March, 2005 (Annexure R4/4) to the Hon’ble Chief Minister suggests that some other States had offered the respondent No.4 various incentives for establishing an industrial unit. It is evident from the letter dated 10th June, 2005 (Annexure R4/5) written by the Secretary to the Ministry of Industries, Energy and Labour Department, Maharashtra to the Respondent No.4 that the State Government was willing to make various concessions and provide incentives including the allotment of land at Nasik for establishment of LOGAN cars project.
  12. The allotment of land is governed by the provisions of 1961 Act, Section 14 of which specifies the functions and powers of the Corporation and the Corporation has, in general power to promote and assist in the rapid and orderly establishment growth and development of industries in the State of Maharashtra. Section 15 thereof provides for general power of the Corporation which includes the power to acquire and hold the land and to dispose of the same by executing the lease, sale deeds, exchange or otherwise transfer any property. Section 31 of the 1961 Act, provides for acquisition and disposal of the land.
  13. The Maharashtra Industrial Development Corporation (Disposal of Land) Regulations, 1975 have been framed to give effect to the provisions of 1961 Act. Regulation 4 provides for disposal of the land covered by the lay out prepared by the Corporation by public auction or by entertaining individual applications. Regulation 6 provides for a particular form to be filled up where the allotment is to be made by applications and deposit of process fee etc. Regulation 10 provides that the Land Committee shall consider the application and pass appropriate orders for allotment of land.
  14. Government of Maharashtra had issued a Circular dated 25th January, 1994 regarding fixation of rate of industrial area in which allotment of plot has to be made by inviting tenders. Clause 4 thereof provided for “preferential right” of the unit holder for having allotment of “neighbouring land” for the purpose of factory expansion. It also provides that where there are more than one application for allotment, the plot may be disposed of by adopting the tender process.
  15. There had been claims and counter claims by the parties. The appellant claimed that it had preferential right for allotment of the part of the vacant land for expansion of its factory. However, its application has been rejected without giving any reason whatsoever, though the law requires giving the reasons for passing any order and the allotment in favour of respondent No.4 was passed in undue haste showing favouritism being a big industrial unit. The right of equality guaranteed under Article 14 of the Constitution stood violated. The application of the appellant had been made prior to the application made by respondent No.4. The respondent No.4 instead of making application to the Corporation started negotiations with the Government directly for allotment of land merely by writing a letter in June, 2005 and on 10th June, 2005 an understanding was arrived in between the Government of Maharashtra and respondent No.4 of commissioning of the Project at Nasik. The informal application was filed by respondent No.4 on 23.11.2005 for making allotment of land from Open Space No.9. The application of respondent No.4 was processed by Land Allotment Committee on 22nd December, 2005, wherein the observation was made that it was an important industry for the city land and its expansion would greatly benefit the industrial growth in Nasik.
  16. The user of land in Open Space No.9 was converted from Open Space to Industrial Area vide order/resolution dated 10th February, 2006 and it was re-numbered as Plot No.126. The first formal application was submitted by the respondent no.4 to the respondent-corporation only on 1.3.2006 and the allotment was made in favour of the respondent No.4 on 27.3.2006. Respondent no.4 was put in possession on 27.3.2006 itself. The license agreement was executed by the respondent corporation in favour of respondent no.4 on July 3, 2006. The demand of respondent No.4 had not been to the extent the area had been allotted.

In view of the above facts and circumstances, the sole question has arisen as to whether the High Court was justified in not granting the interim relief in favour of the appellant?

  1. Records reveal that the appellant had been bargaining with the respondent-Corporation making application after application for allotment of land from remaining vacant area and approached the Court at some belated stage. Even before the High Court the matter remained pending for long before it was admitted and the application for interim relief was rejected.
  2. The Regulation 1975 provides for allotment of land by public auction or by entertaining individual applications. Therefore, the question does arise as to whether without taking a decision that land is to be settled by negotiation, the process of auction or calling the tender can be dispensed with.
  3. In the instant case the appellant had been asking the respondent no.2 to grant the lease of plot nos.F-16 and F-17, which had earlier not been the part of the Open Space No.9, on the basis of being contiguous and adjacent to the appellant’s existing factory at plot no.F-18. It has been canvassed on behalf of the appellant that the action of the respondent no.2 is arbitrary and unreasonable and not in conformity with the statutory provisions.
  4. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).
  5. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-

“The State is to deny no one equality before the law……..Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract…….Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review.”

  1. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
  2. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
  3. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr.(2007) 14 SCC 721.
  4. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
  5. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

  1. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

  1. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.
  2. In Deoraj vs. State of Maharashtra & Ors. AIR2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-

“The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”

  1. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)
  2. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-

“The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed.”

  1. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.
  2. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.(Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors.(1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).
  3. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.
  4. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellant’s plot no.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.
  5. In view of above, we are of the considered opinion that the appeal deserves to be allowed and is hereby allowed. In the facts and circumstances of the case, the interim order passed by this Court on 21.7.2008 shall continue in operation till the writ petition is decided by the High Court. The Hon’ble High Court is requested to dispose of the writ petition expeditiously. Needless to say that any observation made herein either on facts or on law shall not adversely effect the case of either of the parties, for the reason that the only question before this Court has been as to whether the appellant deserves to be granted interim protection till his writ petition is decided by the High Court.

The appeal stands disposed of accordingly. No costs.

…………………………………..J.

(ALTAMAS KABIR) …………………………………J.

(Dr. B.S. CHAUHAN) New Delhi, September 11, 2009

 

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