judgments

Sunday, 11 March 2012

Possession of one co-sharer is treated as possession of other co-sharer also

Possession of one co-sharer is treated as possession of other co-sharer also.

In a case before Supreme Court Vidya Devi vs Prem Prakash AIR 1995 SC 1789, By referring to following citations the point is clarified “In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'..... His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."

Gift of un-divided share by co-parcener

In a case before Supreme Court of India, in Venkata Subbamma vs Rattamma AIR 1987 SC 1775, it is explained in following words “A gift made by the coparcener to his brother should he construed as renunciation of his undivided inter- est in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, there- fore, valid and consent of other coparceners was immaterial.” ….. It is, however, settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. Such recognition of alienations of copar- cenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor's shoes and to work out his rights by means of a partition. ….. The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a coparcener can dispose of his undivided interest in the coparcenary property by a will but he cannot make a girt of such interest. ……….. It is a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of other coparceners. Such a gift will be quite legal and valid…………. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.”

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

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

FAMILY ARRANGEMENT NEED NOT BE REGISTERED

Fakirappa Bailappa Kambar v. Kristappa Bailappa Kambar, ILR 1985 KAR 3063. Wherein the Division Bench of Karnataka High Court has held as follows: "It is open to the members of the coparcenary to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether co-owners in exclusive possession of different portions of joint family property held the same in the partition or under an arrangement as to the possession, depends upon the intention to the parties which has to be gathered from the facts and circumstances of each case. Where direct evidence of intention is available, there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties, separately may be taken into consideration in arriving at the conclusions but that is not conclusive... where exclusive possession of land by co-owners is not in conformity with the shares of respective parties, generally, the indication is that it is not a partition, but it may be an arrangement not intended to be permanent. Therefore, the fact that the parties were in possession of different properties and different properties have been entered in their individual names in the record or rights, is not by itself sufficient to hold that there was such a partition .... Nothing turns out from the long duration. It depends upon the affinity and nature of relationship of the parties. A provisional arrangement which for some reason continued for a long time without objections does not take away its provisional character and make it permanent. There must be some other evidence indicating that the parties have been living separately under a permanent arrangement or partition".

Dayal, Raghubar Supreme Court in Bharat Singh v. Mst Bhagirathi, 1966 AIR 405, 1966 SCR (1) 606 wherein Hon'ble Supreme Court has observed as follows: "There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the Joint Hindu Family to prove it. The mere fact that after the death of the father mutation entry was made in favour of three brothers and indicated the share of each to be one-third, by itself could be no evidence of the severance of the joint family which, after the death of the father consisted of the three brothers who were minors" …. The appellants filed a suit for a declaration that the entry in the name of the respondent in the Jamabandi papers of certain villages was incorrect and alleged that they along with their brother, the husband of the respondent, constituted a joint Hindu family, that their brother died as a member of the joint Hindu family and thereafter his widow- the respondent--lived with the appellants who continued to be owners and possessors of the property in suit, the widow being entitled to maintenance only, and that by mistake the respondent's name was entered in village records in place of the deceased husband. The respondent contested the suit alleging, inter alia, that her husband did not constitute a joint Hindu family with the appellants at the time of his death and also that the suit was barred by time as she had become owner and possessor of the land in suit in 1925 on the death of her husband when the entries in her favour were made, and the suit was brought in 1951. The respondent had admitted in certain documents about the existence of the joint Hindu family or a joint Hindu family firm. The trial Court decreed the suit, which on appeal, the High Court set aside. The High Court did not use the admissions of respondent as she, when in the witness box, was riot confronted with those admissions; and as those documents, if read as a whole did not contain any admissions on behalf of the respondent that there was any joint family still in existence. In appeal by certificate to this Court. HELD : (i) There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of joint Hindu family to establish it. The mere fact of the mutation entry being made in favour of the respondent on the death of her husband was no clear indication that there was no joint Hindu family of the appellant, and the respondent's husband at the time of the latter's death.

Fazalali, S Murtaza Supreme Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 AIR 807, 1976 SCR (2) 202 wherein the Hon'ble Supreme Court has laid down as follows : "The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore, not compulsorily registrable. The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement".

The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth, instead of concentrating tho same in the hands of a few, is a milestone in the ad ministration of social justice. Where by consent of the parties a matter has been settled, the courts have learned in favour of upholding such a family arrangement instead of disturbing it on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or 1 formal defect, the rule of estoppel is applied to shut out the plea of the person who being a party to the family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.

(i) The family settled must be bona fide so as to resolve family disputes. (ii) It must be voluntary and not induced by fraud, coercion or undue influence; (iii) It may be even oral, in which case and registration is necessary; (iv) Registration is necessary only if the terms are reduced to writing but where the memorandum has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself do not create or extinguish any rights in immovable property and, therefore. does not fall within the mischief of s. 17(2) of the Registration Act and is not compulsorily registrable; (v) The parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. But, even where a party has no title and the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then, the antecedent title must be assumed and the family arrangement will be upheld by the courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement. such family arrangement is final and binding on the parties to settlement.

K Ramaswamy, B Hansaria Hon'ble Supreme Court in Digambar Adhar Patil v. Devram Girdhar Patil, AIR 1995 SC 1728, 1995 (2) SCALE 802, 1995 Supp (2) SCC 428 wherein Hon'ble Supreme Court has held that under Hindu law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof.

FOR A CLARIFICATION SOUGHT ON DUTIES OF AN ADVOCATE - KARNATAKA HIGH COURT JUDGEMENT QUOTE

Hon’ble Justice: Ajit J. Gunjal, J. in a judgement of F. Moily Vs. Lokayuktha, State of Karnataka, Bangalore and Others, Reported in 2010 (5) KarLJ 127 SOURCE: KARNATAKA HIGH COURT WEBSITE “Indeed as to the duty cast on the petitioner as well as the Counsel appearing for the parties is concerned, Hon'ble Mr. Justice MN Venkatachalaiah, former Chief Justice of India, has this to say: "The subject of traditions of the Bar, has quite unfortunately come to be associated with certain indelicate assumptions than the best traditions of the Bar are myth and illusions of by gone times and nostalgia of 19th century. I venture more hopefully to think that the great traditions of Bar have sustained the profession of law which every civilised society cherishes as a part of very valuable inheritance. The high traditions are spring of strength and sustenance in its days of trial. The profession of the lawyer is perhaps the single most powerful for the protection of the liberty of man and the decision of civilised living". Advocates are the inheritors of tradition of scholarship, wisdom, dignity, courage and service. The Advocate by his tradition is under several duties. They comprise of duty to the Court, duty to the profession, duty to the opponent, duty to the client, duty to the self and duty to public and State. The duty of an Advocate to the Court is also equally important. This duty encompasses and comprises courtesy and respect to the Court. An Advocate can differentiate without being abject, independent and fearless without being disrespectful, firmness can co-exist with an equal amount of grace and politeness. Section 49 of the Advocates Act, 1961 would speak about the General Power of the Bar Council of India to make certain rules. For the present, we are concerned with Section 49(1)(c) of the Act, which would speak about the standard of professional conduct and etiquette to be observed by the Advocates. Standard of Professional Conduct and Etiquette is to be found in Chapter 2 of Part VI of Bar Council of India Rules which is framed under Section 49(l)(c) of the Advocates Act read with the proviso would clearly indicate as to the duty of an Advocate towards the Court. We are more concerned with item No. 4 of Section 1 which would read as under. "An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing Counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in the Court". The Apex Court in the case of M.Y. Shareef and Another v Hon''ble Judges of the Nagpur High Court and Others, AIR 1955 SC 19; has observed thus: "This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that Counsel who sign applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a Counsel to his client to take an interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications".

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu,

July 07, 2009

. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

Supreme Court Of India Bench Consiting Of Justice R.V. Raveendran And Justice A K Patnaik In T.G. Ashok Kumar VS Govindammal & Anr., Decided on 08-12-2010, The principle underlying Section 52 of the Transfer of Property Act, 1882 is clear. During the pendency in a court of competent jurisdiction of any suit which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.

SUGGESTION TO THE LAW MAKERS

Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and unnecessary litigation. At present, a prospective purchaser can find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way to ascertain whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. The inconveniences, risks, hardships and misery as a result of such transfers could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property. A solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. The Law Commission and the Parliament must consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties.

At present in most of the States, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Registration of agreements of sale will reduce property litigation. It will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country.