Court

`Court` means the civil court of original jurisdiction to decide the question forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include, except for the purpose of arbitration proceedings under Sec.21, any Small Causes Court.

The Special Marriage ActDistrict Court means in any area for whcih there is a City Civil Court that court, and in any other area the Principal Civil Court of Original Jurisdiction.

The Hindu Minority & Guardianship Act, 1956Sec.8(6): Court means City Civil Court or a District court or a Court empowered under Sec.4-A of the Guardians and Wards Act.

The Hindu Adoptions and Maintenance ActSec.9, Explanation (ii): Court means City Civil Court or a District Court.

The Trust ActPrincipal Civil Court of Original Jurisdiction - Sections11 (para 2), 7(b), 22, 34, 36 and 46.

Which is the principal civil court having original civil jurisdiction?

In moffusil, there are District Munsif Court, Sub Court and District court all having original civil jurisdiction. Out of the three civil courts, viz. District Munsif Court, Sub Court and District Court, the last mentioned court, i.e. District Court, is the principal civil court having original civil jurisdiction.

In Madras City, the City Civil Court and the High Court have original civil jurisdiction. Between these two courts, viz. the City Civil Court and the High Court, the High Court is the principal civil court having original jurisdiction.

In moffusil, there are District Munsif Court, Sub Court and District court all having original civil jurisdiction. While the District Munsif Court has limited pecuniary original civil jurisdiction, the Sub Court and the District Court have unlimited original civil jurisdiction. Out of the three civil courts, viz. District Munsif Court, Sub Court and District Court, the last mentioned court, i.e. District Court, is the principal civil court having original civil jurisdiction.

In Madras City, the City Civil Court and the High Court have original civil jurisdiction. While the City Civil Court has limited pecuniary jurisdiction, the High Court has unlimited pecuniary jurisdiction. Between these two courts, viz. the City Civil Court and the High Court, the High Court is the principal civil court having original jurisdiction.If the City Civil Court is the Principal Civil Court of Original Jurisdiction, there is no necessity at all, in the Special Marriage Act, to specify `City Civil Court` also,

while defining `District Court`. While defining `District Court`, besides the Principal Civil Court of Original Jurisdiction, the `City Civil Court` has also been specified. If City Civil Court is also a Principal Civil Court of Original Jurisdiction, then, mere mention of `Principal Civil Court of Original Jurisdiction` would suffice, to define `District Court`. But, here, `City Civil Court` has also been specified. It shows that when there is a higher forum of court having original civil jurisdiction, than the City Civil Court, the latter court, viz. City Civil Court, cannot be classified as the `Principal Civil Court of Original Jurisdiction`.

The property which devolved on a Hindu on the death of his father intestate, after the coming into force of the Hindu Succession Act, did not constitute HUF property, consisting of his own branch including his sons. (1982) 138 IT 673 (MP) The property which devolved upon heirs mentioned in Class I of Schedule u/s.8 constituted the absolute properties and his sons have no rights by birth in such properties.

(1986) 3 S.C.C. 567

(1983) 144 ITR 18 (AP)

(1978) 114 ITR 523 (Mad) U/s. 8, the property of father who dies intestate devolves on his son in his individual capacity and not as kartha of his own family (1968)67 I.T.R. 164 (All)

AIR 1979 Mad 1 FB ?

Hindu father died, leaving his two daughters, the younger being a minor. Elder daughter sold father`s property, including the share of minor sister. Minor sister on attaining majority sold her share (already sold by her sister) in lawful manner. That is sufficient to show that minor has repudiated the transfeer made by her sister as de facto guardian/manager. The earlier sale by minor`s sister is void. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. Further, the property in the hands of father was not a joint family property`. This is not a case of alienation of minor`s interest in a `joint family property`. Sec.11 of the Hindu Minority and Guardianship Act prohibits the alienation of the minor`s interest. Sec.11 includes all types of properties of a minor and no exception is provided in the section. VIII (2001) SLT 111 - Supreme Court DB- Madhegowda (D) by L.Rs. vs. Ankegowda (D) by L.Rs.

2001-L.W.I 700 S. Jagadeesan J. Madras High Court Mohanraj vs. Vallachi Ammal and others When property is acquired by father and it devolves on his legal heirs after his death, so far as male heirs are concerned, it will assume the character of joint

family in the case of intestate. Sec.8 of the Hindu Minority and Guardianship Act has no application. No permission of Court is necessary, in such a case. When once the father acquired the property, after his death, the property devolves on his legal heirs. So far as the male heirs are concerned, naturally, it will assume the character of the `joint family property` in the case of intestate. When a Hindu father died, leaving sons as well as the female heirs, who are also entitled to inherit jointly with the sons to the father`s property under the Hindu Succession Act 1956, the interest of the minor daughters in the property left by the father whether the property of the father`s separate property or the father`s interest in the joint family property, will be the undivided interest in the joint family property, and in respect of those properties Sec.6 of the Hindu Minority and Guardianship Act has no application. As such, there is no need to get the permission of the court under Sec.8 of the H.M.G.Act.

A Hindu Coparcenary is narrower than a Hindu Undivided Family. A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wife and unmarried daughter. A Hindu Coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being sons, grandsons and great-grandsons of the holder of joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of a deceased coparceners. A.I.R. 1966 S.C. 1523

Succession to coparcenary property:

So far as a Mitakshara co-parcenary property is concerned, when a person having an interest in the said property dies, his interest in the property shall devolve by survivorship, on the surviving members of the co-parcenery, and not in accordance with the Hindu Succession Act--Sec.6(1) of the Hindu Succession Act. But this position differs, when a person dies, leaving behind him, his daughter. In such a case, his interest in the co-parcenary property devolves, only under Sec.8 of the Hindu Succession Act, and not by survivorship--Proviso to Sec.6(1) of the Hindu Succession Act.

Here in the case on hand, the vendor`s father had daughters and he died only after the commencement of the Hindu Succession Act. So his intereset in the co-parcenary property devolved, only under Sec.8of the Hindu Succession Act, on his sons and daughters, and accordingly, his sons (including the vendor) took the property and partitioned amongst themselves.

When a property devolves under Sec.8 of the Hindu Succession Act, it devolves, only on Class-I heirs, viz. sons and daughters, and not on a son`s son. Grand-sons and grand-daughters are not included in Class-I heirs. When a property devolves under Sec.8 of the Hindu Succession Act, on a Class-I heir, viz. son or daughter, it becomes the personal and absolute property of the said Class-I heir.

(1986) 3 Supreme Court Cases 567 (Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others) “Under the Hindu Law, the moment a son is born, he gets a share in the father`s property and becomes part of the coparcenary. His right accrues to him not on the death of of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him. But this position has since been affected by Sec.8 of the Hindu Succession Act. Since the Preamble to the Act reiterates that the Act is to àmend` and codify the law and Section 4 thereof makes it clear that one should look to the Act in case of doubt, and not to the pre-exisiting Hindu Law, the express words of Section 8 of the Hindu Succession Act would prevail over the aforesaid general law. When therefore, son inherits the property in the situation contemplated by Section 8 of the Hindu Succession Act, he does not take it as karta of his own undivided family, but takes it in his inidividual capacity. The Scheudle to the Hindu Succession Act referred to in Section 8(a) indicates heirs in Class I and only includes sons and does not include son`s son but does include son of a pre-deceased son.”

Though the original character of the property was `co-parcenery`, when the same devolves under the Proviso to Sec.6(1) of the Hindu Succession Act, the said character changes, and it becomes the absolute and personal property, of the person on whom it devolves. Here, when the property devolved from the Vendor`s father to the Vendor, it was under the Proviso to Sec.6(1) of the Hindu Succession Act, since theVendor`s father had daughters also, and as such, the property which fell to theshare of theVendor became the personal and absolute property of the Vendor.

By operation of the Proviso to Sec.6(1) of the Hindu Succession Act as above, the old co-parcenary system under the Hindu Law is disappearing gradually. See the commentary by T.P. Gopalakrishnan on Succession Laws of India 1970 Edition page 35“Yet another change made by the Hindu Succession Act is the consequent effect on the Mitakshara joint family. While the Act has professedly left it unaffected, the result of the power conferred by the Hindu Succession Act upon a coparcener to dispose of his interest in the coparcenery property, intervivos or by will, and the provisions for succession to the property of a male coparcener dying leaving female heirs of Class I under the Act, is to bring about the gradual extinction of the Mitakshara joint family system, in due course of time.”

Further, the old system of Hindu Law shall cease to have effect, wherever provision is made in the Hindu Succession Act -- Sec.4 of the Hindu Succession Act. Over riding effect.

Therefore, when the Vendor got the property, it was his personal and absolute property and he was having every right, to deal with the same, with powers of alienation.

Or.22, R.10A CPC. Appeal - Death of 1st respondent in an appeal pending before High Court - Memo filed by counsel for respondents 3 and 4 bringing the fact to the notice of court - Failure of appellants to take steps - Held as Respondents 2 to 4 would not represent the entire estate of deceased 1st respondent, appeal is liable to be dismissed as abated as against 1st respondent. If appeal is proceeded as against the other respondents it would result in conflicting decree and hence entire appeal has to be dismissed 2002-2 L.W.745 N.V. Balasubramanian J. Madras High Court

Societies registered under the Societies Registration Act 1860 are not corporations aggregate and cannot therefore sue or be sued in their names but may sue or be sued in the name of the President, Chairman, Principal Secretaries or Trustees as may be determined by the rules of society (see Sec.6). The title of the suit should should be somewhat as follows: “AB, President of the Arya Sabha, UP, a Society registered under the Societies Registration Act, 1860.” AIR 1962 SC 458 Co-operative Societies registered with the Registrar of Co-operative Societies of the State can sue and be sued in their own names.

2000 TLNJ 65 Advocate reporting no instructions. Court should issue notice to the concerned party.

Inchoate pronote - Execution admitted - Consideration not filled up - Deft. has given prima facie authority to holder to complete it - 2002-1 L.W. 541

9 Mysore Law Journal 476 Mundappa vs. Veerabadriah Pronote - Signature can be made at any part of the document.

No cancellation of instrument is necessary and no C.F. to be paid when plaintiff is not a party to instrument ILR 1940 Mad.73

1988-2 L.W. 161 Srinivasan J. Market value of immovable property capitalisation method 1971-I M.L.J. 214 Promissory note payable otherwise than on demand cananot be validated by paying deficit stamp duty. M.L.J. 1980-I 248 Ratnam J. In a suit under Or.37 CPC., unless leave is granted, the defendant is not entitled to file any application for any other relief.

91 Law Weekly Part 31 page 117 (1978)Suit on behalf of an unregistered society by its President or Secretary not maintainable.

The money was not advanced by him (President) from his pocket. The Committee is a mere association of some gentlemen for a special purpose. The money belonged to all the members of the Committee and not to the President. He is not therefore entitled to the money exclusively. He has not been givena power of attorney by the other members to institute the suit on their behalf also. Therefore the suit by the President of an unregistered society is not maintainable without power of attorney given by all the members of the Committee.

There is no document to show that the plaintiff was the duly constituted agent of the creditors. None of the persons who are alleged to have given the authorisation letters has been examined to prove the same. Under such circumstances, all the financiers could not have authorised the plaintiff to act as their agent and get the mortgage by deposit of title deeds in his favour.

2000 (I) CTC 73Delivery of documents of title deeds by the 1st defendant to the plaintiff who is neither a creditor nor an agent of the creditors would not in any way create a mortgae even though there may be a memorandum by deposit of title deeds as found in Ex.P.1.Hence the mortgage deed is not valid and enforceable in law.

Proprietory concern is not a legal and jurisdictional entity and complaint against proprietory concern is not maintainable2001 (2) TNLJ 302; (1992) L.W. Crl. 347; (1996) Crl.L.J. 3099; (1999) L.W.Crl.405); (1999) L.W.Crl.395)

Form No.32 issued by the Registrar of Companies is a public document2001 (2) TNLJ 290

Undivided shares of different owners - Sold - Total consideration to be taken for consideration - pre emptive purhcase(2001) 166 CTR Reports (Supreme Court FB)

Date of payment is date of cheque and is not the dateof handing over cheque for the purpose of limitation - Sec.19 of the Limitation Act - AIR 1967 SC 1118

Acknowledgment of payment - in writing - AIR 1957 SC 477

Immovable property - Deed - Attestation does not amount to acceptance of contents - Further proof necessary 2003(1) T.L.N.J. 173 DB Limitation - Date of order - Date on which the order is actually communicated to the person affected by the order AIR 1961 SC 1500 DB Limitation - S. 138 N.I. Act In case of return of notice, the date of endorsement by the postman or messenger - 1995(2) MWN (Cr) page 231 B. Kannan vs.

Kothandan

When a person has signed and delivered to another a paper stamped in accordance with law, the holder of the inchoate stamped instrument is entitled to fill up blank and negotiate. Holder has authority to make or complete the instrument as a negotiable one. He is authorised to fill up even the contents. Burden shifts on the defendant to prove that subsequently the contents were filled up, and that he has not borrowed money . 2002-3 L.W. 692 K.Gnanaprakasam J. Samikannu Naicker vs. SigamaniSecond Appeal - on date of hearing applicant and counsel were absent - High Court disposal of the Second Appeal on merits - unwarranted - Not proper - Ought to have dismissed the appeal for non-prosecution - Or.41, R.11 (1) & (2) CPC 2002 (1) TLNJ (SC) 31

AIR 1953 Madras 767 = 1953-I M.L.J. 825 In Summary Suit, under Order 37, City Civil Court to which Order 37 applies has no power to condone the delay in filing and obtaining leave to defend suits filed under Rule 3 of Order 37 CPC. When a period of limitation has been affixed for the purpose of doing an act or taking a proceeding under the statute of Limitation Act or under any other enactment, Courts do not possess the power to extend the time unless and until such a power is specifically conferred on them.

Vested remainder in immovable property is present interest in property and can be sold --AIR 1947 Bom. 185

--AIR 1937 Pat. 163 There is no doctrine of law in India which prevents a beneficiary with his interest by way of mortgage. though it is true enough that in India, such an interest is not technically regarded as an equitable estate.

--ILR (1940)2 Cal. 436 (PC)

--AIR 1940 RC 134

--45 CWN 253 Summary suit-only copy of plaint and annexure thereto has to be furnished to defendants-furnishing of copies of documents which are basis of suit, not necessary-not furnishing of same-defendant would not be entitled to leave to defend on this ground --Punjab & Sind Bank vs. Seth Roller Flour Mills A.I.R. 1988 Delhi 308

1988-1 Law Weekly 574 Lucky Electrical Stores vs. Ramesh Steel House (Mr. M.N. Chandurkar, C.J.)

Under Clause (b) of R.1(2), a summary suit can be filed to recover a liquidated demand payable in money. A written contract or a contract in writing need not always be a contract signed by both parties. Sec.44 of the Court Fees Act. Payment of court fee for future mesne profits. AIR 1967 S.C.155 Gopalakrishna Pillai & others vs. Meenakshi Aval and others - With regard to future mesne profits, the plaintiff has no cause of action on the date of institution of the suit and it is not possible for him to plead this cause of action or to value it, or to pay court fees thereon at the time of institution of the suit. More over, he can obtain relief in respect of future cause of action, Only in a suit in which provisions of Or.20, R.12 CPC. apply. But in a suit to which the provisions of Or.20, R.12 CPC. apply, the court has discretionary power to pass a decree directing enquiry into future profits and the court may grant a general relief though it is not specifically asked for in the plaint.

As held in Ramcharan Singh vs. Dharohar Kuer A.I.R. 1954 Patna 175, obtaining of probate of a Will is only a rule of evidence and since the appellate is taking steps to obtain probate of the will, and the will has not so far been probated, the same could not be produced in court. The learned Trial Judge has failed to note that as held in the said judgment of Patna High Court, followed by the decision of the Judicial Committee in Venkata Subbamma vs. Ramayya (A.I.R.1932 P.C. 92), under Sec.211 of the Indian Succession Act, the property of the Testator herein has already vested in the appellant as Executor of the Will and he need not - and should not - wait until the grant of probate, to institute or continue the proceedings relating to the estate of the Testator. Further, as pointed out in the above referred judgment, grant of probate does not create the representative character of the Executor and such a character is created by the statute, viz. under Sec.211 of the Indian Succession Act. Therefore, the trial court ought not to have, in any way, dismissed the application filed by the appellant herein, for non-production of either the unprobated will or the probated copy of the will, inasmuch as the plaintiff is taking steps to obtain probate of the will. The one substantial difference between the Probate and Administration Act of 1871 and the Indian Succession Act of 1925 is that under the former Act, the taking out of probate was not compulsory. This difference does not exist between the Indian Succession Act of 1865 and that of 1925. Division Bench of our High Court, comprising of Their Lordships K.A.Swami C.J. and AR. Lakshmanan J., rendered in S.P. Padmavathi vs. State of Tamilnadu (1997-2 L.W. 579) - Held that in respect of a sale deed executed pursuant to a

decree for specific performance, the stamp duty and registration charges have to be collected, as mentioned in the agreement for sale. 1999 T.L.N.J. page 73 K. Sampath J.

S.50 CPC. Decree obtained against some of legal heirs - Others not made parties - Sufficient representations - Binds all - Only procedural 1999 T.L.N.J. page 88 S.S.Subramani J.

Wrong provision of law given - Duty of court to mould chief The Code consolidates and amends the law relating to the procedure of the civil courts. The object of the consolidation is to bring together and make up-to-date the statutory law relating to any particular subject, so that it may serve as a useful Code applicable to the circumstances existing at the time when the consolidating Act is passed: ILR 22 Cal 788 This Code is intended mainly to regular procedure in civil courts, it is not ordinarily intended to create new rights or take away existing ones. AIR 1932 Lah. 401

This Code deals with procedural matters , that is, with matters relating to the machinery for the enforcement of substantive rights as contra-distinguished from the substantive rights themselves. For substantive rights, one should look to statute law or general principles of law. AIR 1964 Raj. 140 Document fixing a term of 3 years, and either party given liberty to terminate the lease by giving three months` notice. Held: it amounts to tenancy-at-will and it cannot be said to be lease for three years requiring registration. It is admissible though not registered.

2000-I L.W. 494 -- Sengappan vs. Anumbatha Veda Vinayagar Temple, by Hereditary Trustee.

Division Bench of our High Court, comprising of Their Lordships K.A.Swami C.J. and AR. Lakshmanan J., rendered in S.P. Padmavathi vs. State of Tamilnadu (1997-2 L.W. 579) - Held that in respect of a sale deed executed pursuant to a decree for specific performance, the stamp duty and registration charges have to be collected, as mentioned in the agreement for sale. AIR 1961 Madras 388 (A.K.S. Muhammed Sultan Rowther and C vs. Manickam Chettiar), wherein it has been held @8 that the payments made from time to time should be appropriated in the order of time of deliveries AIR 1982 Calcutta 386 (M/s. West Bengal Decorating C vs. M/s. Damodar Das Daga), and contended that a suit for value of goods sold and delivered does not come within the ambit of Order 37 CPC.

Small Cause Court Advocate Fee Rules

5000-10% 5000-10000 - 5% 10001-20000 - 3% 20001-50000 - 2% 500001-100000 - 1% 100001 - 1/2%

Revision under Art.227 of Constitution of India - by a person not party to suit maintainable - decree obtained by agent against principal held collusive - set aside - decree obtained by suppressing materials and without indulging necessary parties 1998-I L.W. 372 Sarkar's Law of Evidence Tenth Edition page 645-- 1991-1 L.W. 256

Defendant dead after judgment by trial court. Appeal can be filed straightway by L.Rs. of deceased defednant.

See also M.L.J. Reports (Supreme Court) page 27

C.A.N606/78 Shiv Dass and others vs. Smt. Devki and others Respondent died after conclusion of aruguments and before judgment. Statutory tenant = Holding over tenant

AIR 1972 SC 2526

AIR 1965 SC 414

Licence - property remains in legal possession of owner AIR 1965 SC 610 = (1964) 6 SCR 642 Sale Deed to be declared as null and void CF payable under Sec.40(1) of C.F.Act

AIR 1956 Mad.176 1943 I M.L.J. 316

1954 (2) MLJ 400

AIR 1954 Mad.1126 1944 I M.L.J if cancellation asked for, C.F. to be paid.

192(1) of Companies Act Registration of resolution by C (Agreement) 192(4) , 124,

124, 130 Charge Registration Future damages for use and occupation/mesne profits (future) -- no cause of action yet court can grant decree under Or.20, R.12(1)(c) r/w. Or.20 R.12 in final decree (discretionary) AIR 1967 SC 155 Future damages for use and occupation only for three years Or.20, R.12(1)(c)(iii) CPC.

I - L.W. 443

AIR 1977 CRL. 319 AIR 1963 SC 1405 Advocate suppression facts fraudulently and obtaining orders - Though tendering apology should not go unpunished - 1987 Crl.L.J. 1038 No precedent is not bar for contempt AIR 1972 SC 2466 Power of Attorney in favour of complainant filing at the time of institution of complaint Sec.138 NI Act - must 1994 I L.W. Crl. 337 1988-2 L.W. 161 Srinivasan J. Market value of immovable property capitalisation method 1971-I M.L.J. 214 Promissory note payable otherwise than on demand cananot be validated by paying deficit stamp duty. If an application for copy of decree is made after the expiry of the limitation period for filing appeal the period taken by the court for issuing copy should not be excluded under the provision of Sec. 12 of the Limitation Act 1993 TLNJ 280 Srinivasan J. 1961-I M.L.J. 288 Limitation in respect of value of goods sold starts, only from the date of delivery and not from the date of any part payment. If a receipt contains additional words importing a promise to pay the money, then the doct. would not be chargeable as receipt but as a pronote or agreement.

3 Bom. L.R. 89

36 Mad. 370 One single person carrying on business in the name of a firm cannot sue in the name of the firm 1959 J & K 118

AIR V 46 C 47 Where a suit against a person carrying on business in a name other than his own, in the style of a firm was instituted and decreed. Held: the deft. could not impugn the decree as a nullity. The executing court could substitute the defendant`s name for the name and style of his business.

AIR 1981 Orissa 141 Decree against firm is decree against all partners 1958 All 176 AIR 1985 Mad. I David Annusamy

Jurisdiction maintainable even if immovable property situate outside the jurisdiction - Mortgage. Sec.92 CPC Petition pending - Or.39 R.1 CPC. can be ordered 1993-2 L.W. 308 DB

Or.9, R.9 CPC will come into play, only when there is default in the appearance of the plaintiff or the applln. and now when there is default in the payment of the amount directed to be paid, as a condition for resotration. 1993-2 L.W. 321 Abdul Hadi Where a suit was based on a cheque issued by plaintiff and encashed and utilised by defendant - held: it was a suit for recovery of a loan and not a suit on cheque

AIR 1982 Delhi 590 Recovery of rent on the basis of lease deed - triable under Or.37 AIR 1983 Kar. 1 Where a memorandum of appeal, returned for rectification of certain defects, is rectified after delay.

Held: condonation of such delay will be governed by Sec. 151 and not by Sec.148 CPC. or S.5 of the Limitation Act. ILR (1979) I Mad. 55

91 Mad. L.W. 530 Where a suit was stayed sine die and one of the parties died. Held, the appln. for substitution of L.Rs. made on the revival of the suit would be allowed, as no suit would be said to have been pending during the stay.

AIR 1984 Del. 138

64 Punj. LR. 454

When an agent suing on behalf of an undisclosed principal dies, pending suit, the suit after death of the agent, should be continued, if it can be continued at all by the agent`s representative and not by the principal.

17 MLJ 116 If a plaintiff sues and dies after his suit has been dismissed, his L.R. may appeal from the decree without an application to be brought on record in his place.

40 PLR 767 The bringing on record of a L.R. of a deceased plaintiff must be entitled to the purpose of carrying on the suit and cannot have the effect of conferring any right to heirship to a property.

AIR 1976 H.P. 174 ILR 41 Mad 442

42 IC 86

17 IC 101

L.R. not claimant heir Succession Certificate is necessary to file E.p. and not to continue E.P.

AIR 1988 AP 314 Sarkar`s Law on CPC 1992 8th Editiion page 935 Vol.I

1987 H.P. para 5 Succession Certificate not necessary Decree in favour of deceased plaintiff - nullity - subsequently cannot be validated by amendment - suit must be treated as pending.

AIR 1958 Cal. 691

AIR 1962 All 541 Legal rep. of a deceased deft. can seek to set aside an exparte decree against the deft. by reason of Sec.146 CPC.

(1970) I An.W.R. 240

AIR 1954 Mys. 32

1981 All L.J. 666 Appeal AIR 1958 SC 394 Real owner can file appeal AIR 1940 Mad. 6 To enable a person to take a proceeding under Sec.146 CPC. as a person claiming under a party to a litigation, it is not necessary he should have been brought on record as such.

AIR 1947 Mad. 34 DB Or. 22 does not apply to the case of death of plaintiff after decree and of his L.R. wishing to appeal ILR Mad 236 Where deft. is dead at the time of institution of suit, the plaintiff cannot proceed with the suit by substituting heirs - suit nullity.

ILR 31 Mad. 86

AIR 1958 Cal. 681

AIR 1964 Mys. 293

AIR 1971 Goa 54 A mere doubt about the eligibility of the petr. to receive compensation in the absence of an other contending party laying claim to the whole or part of compensation will not constitute a dispute under Sec.30 of L.A. Act. The collector has no jurisdiction to transfer the matter to the Judge AIR 1977 Gau. 47 Tenant`s right under Sec.9 cannot be taken away by the dismissal of the ejecment suit. The court should dispose of the petition u/s.9 quite apart, from the manner in which the ejectment suits have been terminated.

AIR (37) 1950 Mad. 759 Sec.9 petition will lie, only in a suit in ejectment, and not in a RCOP for eviction 1993 TLNJ 322

The term `description` includes, age, father`s name, caste, etc.

7 MLJ 81 Plaint defective - Opportunity to be given to cure defect - failute - dismissal Or.7, R.3 CPC. or rejection

AIR 1931 Mad. 175

AIR 1935 Mad 389 DB Where a plaint was returned for amendment and was amended without notice to the other side and the amendments were all important, the order was set aside and case was remanded for trial on original plaint.

1939 A.M.L.J. 112(1)

CPC. by S. Venkataraman N6 R17 page 549 Amendment of plaint can be allowed before admitting the plaint under 7, R.9 before returning the plaint under 7, R.10 CPC. or before rejecting the plaint under Or.7, R.11

AIR 1963 Manipur 43

AIR 1971 Delhi 282

Amendment - fresh suit limitation A contract of guarantee contained in a petition to court was held chargeable with stamp duty as an agreement in addition to court fee paid as for the petn.

AIR 1926 Cal. 877 Agreement in a letter - need not be stamped 13 Mad 255 - contrary view Should be stamped 17 Cal. 548

Distinction between annexures and the suit documents is clear as laid down in 1968 SC 1709 A contract of indemnity contained in an instrument which is implied by law or is ancillary to the main purpose is not separately chargeable with duty as an indemnity bond. A covenant relating to a warranty of title included in a conveyance is not chargeable separately as an indemnity bond

AIR 1977 Mad. 44 There can be validation, only of the original, when it is unstamped or insufficiently stamped. It is well settled tht a copy of an instrument cannot be validated AIR 1962 SC 110

Original insufficiently stamped and not admissible in evidence. Its certified copy also is not admissible in evidence.

AIR 1955 Cal.56

AIR 1951 Pepsu 24

AIR 1962 SC 110 (original lost) A pronote which is also a bond being attested by a witness and not expressed to be payable to order or bearer, is liable to duty as for a bond and is admissible in evidence on payment of duty and penalty as for a bond.

before amendment of Act

AIR 1945 142

The document started with the words òn demand I promise to pay` but subsequently said that the principal sum with interest would be paid within three years. This inconsistency was taken as showing that it was not intended to be used as a negotiable instrument and it was allowed to be validated on payment of penalty.

AIR 1941 Nag. 1 A bill or pronote need not be attested. If it is attested by a witness and is not payable to order, it will fall under the definition of a bond as given in the Indian Stamp Act, and will therefore be chargable with duty as a bond.

ILR 8 Mad.87 FB Also see 1944-II MLJ 180 Where on a pronote by prl. debtor, the surety had written `repayment guaranteed by me` The court held that it was a contract of guarantee (1917) 44 Cal. 978

39 IC 705

21 CWN 482 A recital that the title deeds have been deposited as collateral security would not affect the character of the instrument as a pronote. In this case, the instrument though a pronote may also be chargeable under Art.6

3 MLJ 225

(1835) A & E 386 Stamp Act page 95 Under Sec.40 CF Act. Value as on date of plaint

(1976) I M.L.J. 9 As mentioned in the document 1939 (1) M.L.J. 702

Page 172 C.F. Act Declaration of an order demanding payment of tax, etc. - suit to be valued - not advolerum C.F. 25(d) 1990 TLNJ 107

99 Law Weekly 740 Equitable mortgage - Memorandum evidencing deposit of title deeds - It is merely evidence of past transaction and not disclosure of sole bargain in praesenti - hence regn. not required

AIR 1977 Mad. 238 In order to require registration of a mortgage by deposit of title deeds, the document must contain all the essentials of the transaction and one essential is that the title deeds must be deposited by virtue of the instrument or acknowledge an earlier deposit of title deeds and say further that the title deeds shall be held as a security on the said mortgage.

AIR 1970 SC 659 Order of attachment before judgment would not become ineffective after passing of decree permitting JD to pay decretal amount in instalments. That order which was independent order would survive unless set aside in a manner known to law.

Or.38, R.5 -- AIR 1977 Mad. 339 Pronote - payment in instalments - payable otherwise than on demand - insufficiently stamped - inadmissible AIR 1977 Mad. 340 1) Mutual, open and current account - balances should have tilted from one side to another - at least at one point of time 2) Payment AIR 1977 Mad. 56

No contract between parties regarding payment of interest - plaintiff is entitled to claim interest at 6% p.a. under Sec.1 of Interest Act 32/1839 AIR 1977 Mad 56 See Sec.80 of the Negotiable Instruments Act. An Arbitrator can just file the award in the court, without any appln. but the act of filing must be his or on his behalf AIR 1953 SC 313 = 1953(1) MLJ 841 AIR 1979 Mad. 1 FB Notice to all parties in I.As. Rule 32 CRP Or.9, R.9(2) CPC

1980 - I M.L.J. 278

1992 - 2 L.W. Part 13 page 467 U/s. 35 of the Stamp Act, an unstamped document cannot be admitted in evidence for a collateral purpose.

Section enacts that it shall not be admitted in evidence `for any purpose` 1946-I M.L.J. 295 (PC)

1953 All.L.J. 312 = AIR 1953 AlL. 350 Proviso to Sec.35 of the Stamp Act makes unstamped receipt admissible not generally but as against the person by whose fault it is unstamped, on payment of the penalty of one rupee (page 291) Stamp Act AWN 1902 72 FB If a document is insufficiently stamped, the date stamp should not be applied to the stamps on it, nor should the stamps be cancelled by punching out the figure head. The doct. should be returned to the party concerned for resubmission properly stamped.

--Rules under the Court Fees Act Part II Chapter I

Civil Rules of Practice and Circular Orders Vol.I, page 222 1984 AIR Mad 75 = 1984 MLJ 148 ABJ conditional attachment - valid Partition

1928 C. 705

Deed merely recording a family arrangement and containing an ack. of the receipt of a share of property need not be stamped and registered

Where a person executes a Power of Attorney in favour of a lawyer, it is not that he cannot appear in person before a court of law. - 1954 Assam 23 (25) -

Union of India vs. The Bank of the East Ltd. & others

AIR V 41 C5

ILR (1953) 5 Assam 115 DB Appointment of a `sole agent` does not preclude the principal from acting himself in the business of the agency without being accountable to the agent. Only an express prohibition would have that effect. --Contract Act Pollack & Mulla on Contract Act and

Specific Relief Acts X Edition 1986 page 844

(1931) I KB 253

(1934) 2 KB 436

(1941) AC 108

(1953) CPL 652 CA Whenever a court passes an order directing the preservation of `status quo` it should by the same order state in unequivocal terms what the `status quo` is, otherwise, the court will be failing to to its duty.

--Srinivasan J. 1988-2 L.W. Part 13 342 Sec.19(b) of Hindu Succession Act

Tenancy in common -

This interest is created where two or more persons have individual possession but distinct interest estates in any subject of property, in equal or unequal shares and either by the same or by different titles. On the death of a tenant-in-common, his share goes to his representative. Joint tenancy- (co-parcener)

An estate held by two or more, jointly with an equal right in all, to share in the enjoyment of the land during their lives. On the death of one, his right accrues to others by survivorship. In this tenancy, there are four units, viz. of possession, interest, title and time.

Power of Trustee to sell

Unless trustees are given express power to sell, mortgage, exchange, or partition, by the instrument of trust or by some statutory provision or by orders of court, it would not be competent for them to do so The normal duty of the trustee is to preserve the property in specie and not to convert it. The general authority of a trustee would not therefore include a right to sell the trust property which must be decided from the investment of trust or from directions of a court.

ILR 1952 Bom. 266

AIR 1952 Bom 106

53 BLR 883

u/s. 34 Petition to be filed for sale of trust property ILR (1954) Mad 537 DB Where the trust estate consisted of house properties was under a set back due to need for urgent repairs at heavy costs, so that it would be more prudent to sell them than to rehabilitate them, it was held that in the absence of a power of sale express or implied conferred by the instrument of trust, the trustee must invoke the extra ordinary jurisdiction of the court to sanction a sale.

43 Bom 519

Bom LR 41

49 IC 882 Sec.36 of the Trusts Act Sec.34 Page 251, 259 N. Suryanarayana Iyer`s Indian Trusts Act

1882 IV Edition 1992 Sec.34 of the Trusts Act provides better forum a court, superior to the court of sub judge Where a trustee enters into an agreement for sale of trust property there being nothing in the trust deed expressly authorising him to do so, dispute regarding his right to do so has to be referred to Court under Sec.34 of Trusts Act and not to court u/s.90 CPC.

AIR 1982 Cal. 14 DB Principal Civil Court of Original Jurisidction superior to sub court Decree obtained on behalf of an idol - subsequent creation of trust is a private transaction affecting idol - Decree can be executed either by the original Decree Holder or by the President and the Trustee acting together under the

Trust Deed after taking steps under Or.21, R.16 AIR 1978 All. (1)

AIR 1935 All. 1001 AIR 1954 Patna 175

-Bequeath under Will vests with Executor, immediately on the death of Testator. Executor need not wait till obtaining probate - which is must See AIR 1959 rAJ 243 (Jaipur Succession Act)

1955-II M.L.J. Reports 27

Supreme Court - Respondent dies after arguments and before delivering judgment in the appeal. L.R. need not be brought on record, in that appeal. It is enough that L.Rs. of the deceased are impleaded eo nominee, in the further appeal proceedings, to represent the estate of the deeased. The date when the plaintiff gets the knowledge of the defendantis not relevant under Art.177 (now Art. 120 r/w Or.22, R. 4 CPC.)

AIR 1964 SC 215 Under Or.22, R.4(3) CPC abatement of suit as against defendant is automatic and no separate order is necessary for declaring AIR 1976 Goa 11 Or.22, R.3 applicable for bringing on record L.Rs. of deceased applicant AIR 1979 Cal. 182

AIR 1980 SC 64

AIR 1978 Del. 129 Sec.44 of C.F. Act Claim of future mesne profits/damages is based on future cause of action In view of Or.20, R.12 CPC. the said relief can be claimed in the present suit but need not be valued and court fee paid now. AIR 1967 SC 155 Vakalath and appearance are filed for a particular court. Itis for a suit or proceeding in that court, the advocate is authorised and obliges himself to appear If a matter was to be transferred from one court to a totally distinct court, it appears that the authority given to advocate would come to an end.

AIR 1977 Bom. 36 Transfer of a suit would not involve the collection of extra court fee leviable in

the transferee court or refund of excess court fee, according to the scale prescribed for the transferee court. AIR 1955 Cal. 258 1991-I L.W. 256

After disposal of suit and before filing of appeal, if defendant dies, when appeal is sought to be filed, cause title to be amended. One of the liquidators acting on behalf of a registered company died. The plaintiff was still alive. The application for adding the name of the successor liquidator in the title of the suit was a technical one, meant merely to keep the record of the suit straight and such application was not governed by the law of limitation, since there was no abatement.

AIR 1971 All. 407 A bonafide application to bring the L.Rs. (though wrong persons) of a deceased defendant on record is an application made to the court within the meaning of Or.22, R.4, as not to cause the suit to abate.

20 MLJ. 398 a few L.Rs. AIR 1973 Pat 399 Or.22 applies to pending appeals AIR 1980 SC 64 The value of the subject matter contemplated u/s 15 of the City Civil Court Act cannot possibly take in the value of the counter claim. Plaintiff`s value determines jurisdiction

1975-I MLJ 6 = 88 L.W. 547 Suit can be decreed based on the evidence adduced by the defendant

AIR 1965 All. 223

AIR 1951 SC 177 Judicial Officers should not be made parties in the writ proceedings questioning the judgments/orders 1999-3 L.W. 277 Supreme Court

Counsel reporting no instructions - Duty of court and duty of counsel - Notice should be given to the party concerned

2000 TLNJ 65

Statutory suit - other suit 1999 T.L.N.J. 110 Or.2, R.3 CPC.

There is no provision in the Code enabling the plaintiffs who have separate causes of action against the same defendant to join themselves and their causes of action in one suit

ILR 18 All. 432

ILR 15 All. 380

ILR 4 All. 261 The plaintiffs can only join in suing several defendants in one suit for several causes of action when both the plaintiffs and the defendants are jointly interested in each or all of such causes of action.

ILR 18 All. 131 Partner dies - firm - suit against firm - not abated AIR 1973 Patna 441 Even a limited company, liability of Director may be unlimited vide Sec.322, 323 of Companies Act. The omission to cancel any stamp may result in the document being taken to be unstamped to that extent.

The drawing of two lines crossing each other across the face of the stamp is an effectual cancellation AIR 1961 Raj. 43

ILR 1960 Raj 808

An illiterate person can direct the scribe of the promissory note or any one else to sign across the adhesive stamp on his own behalf. Such signature will be quite as good as his own signature for the purpose of of cancellation. Where a pronote requiring four annas stamps bears only three cancelled one anna stamps and one uncancelled stamp, it should be considered.

AIR 1934 Lah. 606

AIR 1981 Ker. 86

In a suit by the indorsee, the right of action is directly dependent on the indorsement, and that form part of the cause of action so as to give the court of the place of indorsement to entertain a suit, not only against the indorser but also against the drawer.

22 Cal. 451

31 MLJ 816

5 L.W. 246

AIR 1933 Lah. 940 AIR 1953 Mad. 767

1953-I M.L.J. 825

Sec.5 of Limitation Act not applies to appln. for leave to defend Or.37 CPC.

Companies Act

Sec.51 service of company

54 document execution by company

47,48 execution of deeds

446 suits stayed against wound up company

632 payment of suit costs by company

125 Registration of charge

332 unlimited liability of Director Generelia specialibus non derogant: It is well known proposition of law that where a matter falls under any specified provisin, then it must be governed by that provision AIR 1985 46 Summoning of Document from another court R.358 CRP R.75 CRP Probate of Will

AIR 1954 Patna 175

Petition under Sec.482 Cr.P.C. after exhausting the remedy by way of Revision, is not maintainable.

1990 SCC Crl. 537 Successor Judge can perform duty of his predeessor Sec.35 CPC. / Cr.P.C. Civil matters - lower court to be the forum Sec.15 CPC. Vested remainder in immovable property is present interest in property and can be sold AIR 1947 Bom 185

AIR 1917 Pat. 163 Mortgage also not forbidden ILR (1940) 2 Cal. 436 (PC)

AIR 1940 RC 134

45 CWW 253

Wrong quoting of provision will not invalidate order AIR 1985 SC 470 Firm is not a legal entity, nor is it a person. Order of adjudication against a firm is an order against the individual partners AIR 1927 Lah. 234

AIR 1926 Sind 31

AIR 1932 Sind 62 Omission to implead Insolvency Court is fatal for the enforcement of mortgage security AIR 1962 All 256

Sec.28 of Prov. Ins. Act.

Sec.17 Pre. Ins. Act.

Plaintiff a secured creditor - in summary suit, amount deposited as a condition for grant of leave - plaintiff can lodge claim with A. only for balance AIR 1993 Bom.112 Mere attachment does not make creditor secured (1935) 41 Bom L.R. 506

AIR 1933 Nag. 229, AIR 1929n Cal. 524 , ILR 26 Mad. 673 , ILR 39 Mad. 903

“Exparte” merely means in the absence of the other party. The passing of the order “that the suit be heard exparte” does not debar the defendant to appear on subsequent hearings and conduct his case from the date of his appearance (Venkatasubbiah vs. Lakshminarayasimhan AIR 1925 Mad. 127 approved in Sangram vs. Elec Tribunal AIR 1955 SC 425

Where good cause is not shown by the defendant for his earlier absence and the application under Order 9, Rule 7 C.P.C. is rejected, it is still open to the defendant to join and participate in the proceedings at a later stage accepting the events which have taken place in the interregunam, as they stand (Lotus International vs. Chandrabhujadas Karnani Textiles (P) Ltd. 65 (1997) DLT 300, 306 DB.

Thiruppathy - Judge case - 2004-3-L.W. 230 S. Thirupathy vs. State of Tamilnadu and the Registrar General, High Court

2004 (3) CTC 754 Techmo Car SPA vs. the Madras Aluminium Company Ltd. Madras High Court DB per P. Sathasivam J.

The words `court` has been defined in Section 2(l) of the Arbitration and Conciliation Act, 1996 as follows:

“2(l)(e) “Court” means the principal Civil Court of original jurisdiction in a district, and and includes the High Court, in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;”

Section 12 of the Tamilnadu Civil Courts Act, 1873 as it stood prior to the Amendment Act 1/2004 shows that the jurisdiction of a District Judge or a Subordinate Judge extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature. Accordingly, as rightly claimed, inasmuch as the petition under Sec.9 having been filed on 12.3.1993, i.e. prior to Act 1/2004, the proper Court is either the District Court or the Sub ordinate Judge`s Court concerned. However, as per Section 15 of the Code of Civil Procedure, suit shall be instituted in the Court of the lowest grade competent to try it. Accordingly, at the relevent time, Subordinate Judge`s Court is the competent court to try the petition filed under Sec.9 of the Act. As per Section 10 of the Act, the Arbitral Tribunal shall not be bound by the Civil Procedure Code, 1908 or the Indian Evidence Act, 1872. The said provision cannot come into operation when a petition under Sec.9 is filed before the competent Civil Court. ……hold that the Additional District Judge, Salem who passed the impugned order, was not having jurisdiction on the date when the

petition was filed.

`Court of Record` is not defined in the Constitution. This expression is well recognised in the judicial world. In Jowitt`s Dictionary of English Law, `Court of Record` is defined as

“A court whereof the acts and the judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.”

In Wharton`s Law Lexicon, court of record is defined as

“Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison, or not of record being courts of inferior dignity, and in a less proper sense the King`s Courts---and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded.”

In Words and phrases (Permanent edn, Vol 10. p. 429) `court of record` is defined as under:

“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the `record` of the court, and are of such high and superiminent authority that their truth is not to be questioned.”

Halsbury`s Law of England, 4th Edn. Vol 10 , para 709, p 319 states:

“Another manner of division is into courts of record and courts of not of record. Certain courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences. If it has such power, it seems that it is a court of record. The proceedings of a court of record preserved in its archives are called records, and conclusive evidence of that which is recorded therein. [Delhi Judicial Service Assn. vs. State of Gujarat (1991)4SCC406 at 437-438, AIR 1991 SC 2176, 1991 Crl.L.T.3086 (1991)3JT (SC)617, 1991 AIR SCW 2419]

(2002)I M.L.J. 760 Rengasami Reddiar (died) and others vs. M.K. Mummachi Reddiar (died) and others - Mrs. Prabha Sridevan – Partition should be stamped and registered otherwise not admissible in evidence.

But a Memorandum evidencing a family arrangement already entered into and

prepare as a record, need not be stamped or registered. (2000) 2 T.L.N.J. 315 A.C. Lakshmipathy vs. A.M. Chakrapani Reddiar. – See also AIR 1966 S.C. 292 Tek Bahadur Bhujil vs. Debi Singh Bhujil and others – Family arrangement – essentials – Arrangement when brought by document, registration necessary – Memorandum of arrangement - Registration not necessary.

2004-4 L.W.429 Tirupati Balaji Developers Pvt. Ltd. & others vs. State of Bihar & others - Supreme Court Judgment – Relationship between Supreme Court and High Court – Remarks called for by Supreme Court from Patna High Court – Aversion shown by Patna High Court - Such response expunged

Sec.34 of C.P.C. will not apply to a suit on mortgage. Interest has to be fixed only under Order 34, Rule 11 CPC. at such rate as the court may think fit. – 1998-2 L.W. 26 N.M.Veerappa vs. Canara Bank (Supreme Court DB)

2000 SCC (Cri) 1962 In the matter of `RV` a Judicial Officer - High Courts shall have restraint, care and circumspection while exercising its power of superintendence lest those who dispense judge to others should themselves suffer injustice. The higher tiers are provided in the judicial hierarchy to set right the errors which could possibly have crept in, in the findings, orders, or proceedings of the courts at the lower tiers. It is well to remember the words of a jurist that ` Judge who has not committed any error is yet to be born`.

A.I.R. 1952 SC 317 – State of Bombay vs. Purushottam Jog Naick - Paragraph 16 -(16) We wish however to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the mater deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention the the remarks of Jenkins C.J. and Woodroofe J. in `Padmabati Dasi vs. Rasik Lal Dhar` 37 Cal 259 and endorse the learned Judges` observations.

(17) In fairness to the Home Secretary, we deem it right to say that his veracity was neither doubted nor impugned by the High Court, but only his means of knowledge. He was speaking of the “satisfaction” of the Minister and the High Court was not satisfied regarding his knowledge of the state of

Minister`s mind. The learned Judges considered that the Minister himself would have been a more satisfactory source of information, but as we say, this is not a question of law. As a matter of abstract law, of course, the state of man`s mind can be proved by evidence other than that of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary`s affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof. But whether that would be enough in any given case or whether the “best evidence rule” should be applied in strictness in that particular case, must necessarily depend upon its facts.

AIR 1970 SC 652 A.K.K. Nambiar vs. Union of India and anotherThe appellant made allegations against the Chief Minister of Andhra Pradesh and other persons of whose names were disclosed and some of whose names were not disclosed. Neither the Chief Minister nor any other persons was made a party. The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant`s petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for the allegations. In essence, verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.

AIR 1978 Goa 12 Caetano Dias vs. Caetano Rodrigues - Affidavits must be duly verified. Ordinarily any conclusion of the Court should be arrived at upon evidence, subject to cross examination, if any. An exception is made by Or.19 of the C.P.C. by allowing proof of certain facts to be made by affidavits. It therefore stands to reason that those affidavits should strictly abide with the prescribed form. Order 19, Rule3(1) states that affidavits shall be confined to such facts as the deponent is able, of his own knowledge to prove. An exception is made in case of interlocutory applications. In such applications, statements of his belief may be admitted ………….. To my mind in view of the specific provisions of R.3(1) a verification is necessary. Rule 3(1) makes it incumbent upon the parties swearing affidavits to state that the deponent is able , of his own knowledge, to prove the facts stated in the affidavit. The main reason why a verification of an affidavit must be strictly made is that the deponent must be

made responsible for the statements made by him. ………….Such proof is however allowed with a view to expediting proceedings. It would well-nigh impossible to dispose of interlocutory applications within a short time if proof by affidavits was not allowed. For all these reasons, verification of affidavits is of paramount importance. Absence of such verification is fatal to the affidavit and the evidence contained therein should not be admitted, nor relied upon. “……..The High Court observed that the words that the contents of the affidavit are true and correct to the best of my knowledge and belief carry no sanctity and such a verification cannot be acted upon.

AIR 1955 Punjab 164 State vs. Dittu Ram Pritam Dass - While dealing with applications under Sec.5 of the Limitation Act, Courts are always influenced by the consideration whether extension of the period of limitation is likely to affect the rights which have come to vest in the opposite party by efflux of time. If therefore a convict `s appeal is out of time it is the practice of the Punjab High Court to condone the delay as no right can be said to vest in the State to have the conviction of an innocent person upheld. – But it is not so in the case of State filing petition under Sec.5 of the Limitation Act to condone delay in filing appeal against acquittal of a person.

Lord Denning in his benchmarking style had maintained:

“When a Judge sits to try a case ….he himself is on trial - before his fellow country men. It is on his behaviour that they will form their opinion of our system of justice. He must be dignified so as to earn the respect of all who appear before him. He must be alert – to follow all that goes on. He must be understanding - to show that he is aware of the temptations that beset everyone. He must be merciful – so as to show that he too has that quality which ‘droppeth as the gentle rain from heaven upon the place beneath’.” 2005-1- Law Weekly Journal Section - Speech of Chief Justice Mr. Justice R.C. Lahoti while inagurating the additional building of Gauati High Court on 7.8.2004

Verified PetitionOr.VI, Rule 14A(2) CPC.Rule 56 (6) CRP

Petitions with supporting affidavitsRule 48(2) CRP Transfer PetitionRule 82 CRP CommissionerOrder 38, Rule 1 CPC. Order 39, Rule 1 CPC

Order 32, Rule 3 Affidavit verifying factsOrder 41, Rule 3A condone delaySec.408 r/w 407(3) Cr.P.C. Transfer PetitionRule 196 Crl.R.P. condone delay

Onerous condition while granting bail (1980) 1 Supreme Court Cases 81 Hussainara Khatoon and others vs. Home Secretary, State of Bihar – Imposing of onerous condition while granting bail – Bail system oppressive and discriminatory against the poor.

Affidavit - AIR 1988 SC 1381 Smt. Sudha Devi vs. M.P. Narayanan and others - Sec.3 of Evidence Act - Affidavit is not included as evidence in the Evidence Act. Unless court permits, it cannot be treated as evidence.

Affidavit – AIR 1956 Calcutta 496 Biskha Rani Chose vs. Satish Chandra Reddy – Verification of affidavit that “to the best of my knowledge” means nothing. This kind of verification cannot be accepted.

Sec.47 CPC. appeal – AIR 1994 AP 334 B. Nookaraju vs. M.S.N. Charities and others – Under the unamended Code, all questions decided by the Executing Court and covered by Section 47 were treated as decrees as defined under Sec.2(2) of the unamended Code and therefore they were not appealable orders. Now, in view of exclusion of òrders` passed under Sec.47 of the unamended Code from the definition of `decree` as per the amended Code, orders passed under Section 47 of unamended Code are not more `decrees` and they are only àppealable orders` not attracted by Section 96 of the Code. Only CMA will lie, even against deemed decrees.

Joint Family property – 2001-L.W. 1 700 Mohanraj vs Vallachi Ammal and 8 others – Madras High Court S. Jagadeesan J. - When property is acquired by father and it devolves on his legal heirs after his death, so far as male heirs are concerned it will assume the character of joint family property. - In the case of disposition by father the property will assume the character in the hands of the son, depending on the recital. Section 8 of the Hindu Succession Act has no application, where father dies leaving sons as well as female heirs, entitled to inherit jointly with the sons. – No natural guardian under Sec.6 of the Hindu Minority Guardianship Act.

AIR 2002 Madras 296 Mr. Justice V. Kanagaraj – Govindammal vs. Bhuvaneswari Financing Corporation - Estate of deceased whether actually have vested on the heirs – Must be pleaded and Issued should be framed while suing heirs of a deceased

Affidavit - AIR 1988 SC 1381 Smt. Sudha Devi vs. M.P. Narayanan and others -

Sec.3 of Evidence Act - Affidavit is not included as evidence in the Evidence Act. Unless court permits, it cannot be treated as evidence.

Affidavit – AIR 1956 Calcutta 496 Biskha Rani Chose vs. Satish Chandra Reddy – Verification of affidavit that “to the best of my knowledge” means nothing. This kind of verification cannot be accepted.

Sec.47 CPC. appeal – AIR 1994 AP 334 B. Nookaraju vs. M.S.N. Charities and others – Under the unamended Code, all questions decided by the Executing Court and covered by Section 47 were treated as decrees as defined under Sec.2(2) of the unamended Code and therefore they were not appealable orders. Now, in view of exclusion of òrders` passed under Sec.47 of the unamended Code from the definition of `decree` as per the amended Code, orders passed under Section 47 of unamended Code are not more `decrees` and they are only àppealable orders` not attracted by Section 96 of the Code. Only CMA will lie, even against deemed decrees.

Joint Family property – 2001-L.W. 1 700 Mohanraj vs Vallachi Ammal and 8 others – Madras High Court S. Jagadeesan J. - When property is acquired by father and it devolves on his legal heirs after his death, so far as male heirs are concerned it will assume the character of joint family property. - In the case of disposition by father the property will assume the character in the hands of the son, depending on the recital. Section 8 of the Hindu Succession Act has no application, where father dies leaving sons as well as female heirs, entitled to inherit jointly with the sons. – No natural guardian under Sec.6 of the Hindu Minority Guardianship Act.

Page 296 Mulla Code of Civil Procedure (abridged) 14th Edition

Section 2(2), before 1976, provided that the determination of any question under S.47 is a decree unless it is appealable as an order. …. Such a determination when it is between the parties to the suit or their representatives falls under Sec.47 but is nevertheless subject to one appeal only as an order under S.104. …..All other decisions in execution under S.47 were decrees and subject to first and second appeal. ….Orders passed under special statutes had been held to be appealable under this section if they related to execution, discharge or satisfaction thereof. (AIR 1953 Mad. 56 Desikachariar vs. Ramachandra) . The position has been altered by amendment of 1976 which has amended S.2(2) by deleting the portion which included determination under S.47. Under the present position, such determination will no longer be appealable.

As regards appeal, therefore, orders in execution proceedings may be divided into three classes:

(1) Order under this section which are determinations of questions. after 1976, they are not appealable.

(2) Orders, which whether they fall under this section or not, are declared to be orders under O.43, R.1 and are subject to one appeal only.

(3) Non-appealable orders, generally of an interlocutory nature.

-----------------------------------------------------------------------------------------

The words `Section 47 or` have been omitted by the Amending Act 104 of 1976. The joint committee of the Parliament was of the view that the inclusion of Section 47 in the definition of the expression `decree` is mainly responsible for the delay in the execution of the decree. ----------------------------------------------------------------------------------------

Comments by Sarkar`s The Law of Civil Procedure Tenth Edition 2002 – page 502,503

S.99-A was inserted in the original bill on the recommendation of Law Commission (vide 54th Report P.74) adopting the principles of S.99 specifically with regard to appeals against final orders under S.47. Joint Committee recommended amendment of the definition of “decree” in S.2 (2) by excluding therefrom “determination of any question under Sec.47” to make the final under order under S.47 non-appealable in order to reduce the delay in the execution of decree, but did not recommend any consequential relief any consequential amendment to delete this section: and the bill as such was passed by the Legislature. The result has been that, as there will no appeal against final order under S.47, this section remains in the statute as those serving no useful function.

Comments by Sarkar`s The Law of Civil Procedure Tenth Edition 2002 – page 319.

An order determining any question under Sec.47 not being a decree within S.2(2), no appeal lies against it. Revision will be entertainable under S.115 CPC., provided the conditions laid down by that section are satisfied. Orders, in execution proceedings (not falling within S.47) which have been declared to be appealable under Sec.104 are appealable as order (eg. Or.21, rr 34, 72, 92 and 106(1). Besides, some orders have been specifically made appealable as decrees under provisions relating thereto (eg. Or.21, rr 43A, 46B, 46C, 46E, 51,

58, 98 and 100). In view of exclusion of òrders` passed under Sec.47 of unamended code, from the definition of `decree`` as per amended code, and they are only appealable orders not attracted by sec.96 of the Code. (B. Nookaraju v. MSN Charities AIR 1994 AP 334, 336). Revision is maintainable against order of executing court rejecting an application under S.47 (Dhusan v. Dhadi AIR 1983 Orissa 127).

By removing Section 47 CPC from the ambit of Section 2(2) by amendment any order order Section 47 does not automatically become apppealable. The Court will have to decide the matter of maintainability by assessing if the order finally disposes of the controversy and affects the rights of the parties finally [National Jute Manufacturers Corporation Ltd. vs. Ramnagar Cane & Sugar Co. Ltd. 1999 CWN 540]. In certain circumstances an order under Section 47 is appealable only at the choice of the judgment debtor. [National Jute Manufacturers Corporation Ltd. vs. Ramnagar Cane & Sugar Co. Ltd. 1999 CWN 540].

Affidavit

Sec.5 of the Limitation Act does not require any affidavit specifically.

In this connection, it has to be pointed out that Rule 34 of Civil Rules of Practice provides for swearing of the affidavit before an Àdvocate` also, [other than the advocate appearing for the deponent]. This `clause` appears to have been subsequently included. But, such a clause including Àdvocate` has not been included in the list of persons before whom affidavit is to be sworn, and this is clear from Rule 34 of the Criminal Rules of Practice.

Sec.120 of the Evidence Act speaks about competency of witnesses. It says that a husband can swear for wife and, a wife can swear for husband.

2005 SCC (Crl) 435 – Sunita Devi vs. State of Bihar and another – [refers to State of Ratan Lal Arora (2004) 4 SCC 590 = 2004 SCC (Crl) 1353 - where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. …… “Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium.

AIR 1985 All. 12 Bishambar Dayal vs. Vishwanath – Promise to pay time barred debt – Execution of promissory note in lieu of such debt – mention of factum of debt being time-barred not required .

AIR 1975 Mad 164 Kapaleeswarar Temple vs. Tirunavukkarasu - Con tract t pay time-barred debt – Tenant giving an undertaking to landlord to pay off

arrears of rent (part of arrears time-barred debt) – Landlord is entitled to recover entire arrears - Section 25(3) of the Contract Act is far wider in scope than the acknowledgment contemplated in Sec.18. The contract under Section 25(3) is an independent and enforceable contract.

2005(2) CTC 582 (Supreme Court – Per R.C. Lahoti, C.J.I. – D.B) Vithalbhai Pvt. Ltd. vs. Union of India - No Cause of action at the time of institution of suit – Sec.111 of T.P. Act. Para 23 “In the case at hand, the act of the plaintiff filing the suit before 25.6.1984 cannot be said to be malicious or intended to overreach the Court. The defendant`s reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a clour was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff n or after 25.6.1984 the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage, then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25.6.1984. By the time the suit came to be decided on 12.2.1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant`s objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge.”

2005-1 L.W. Crl. 83 State of Orissa vs. Nalinikanta Muduli - Counsel should not cite over-ruled judgments and should not mis-lead the courts

Delay in filing written statement after 90 days – Time prescribed is directory and not mandatory – May be enhanced – 2005(3) CTC 355 Kailash vs. Nanhu & other ( Supreme Court)

Printed clause that Bombay Court alone shall have jurisdiction is a void stipulation and such a question will arise, only where there is a choice of forum of instituting the suit. 1998-3-L W 71 1989-1 L.W. part 20 page 543

Jurisdiction - AIR 2005 Karnataka 94 Globe Cogeneration Power Ltd. vs. Sri Hiranyakeshi Sahakari Sakkere Karkhane Niyamit, Sankeshwar, Karnataka - Parties by consent cannot confer jurisdiction on court if such court has no jurisdiction.

Jurisdiction – AIR 2003 SC 1127 Modi Entertainment Network and another vs. W.S.G. Cricket Pte. Ltd. - Para 10 “ In regard to jurisdiction of Court under the Code of Civil Procedure (CPC) over a subject-matter, on or more Courts may have jurisdiction to deal with it having regard to the location of immovable property, place of residence or work of a defendant or place where cause of action has arisen. When only one Court has jurisdiction it is said to have exclusive jurisdiction; where more Courts than one have jurisdiction over a subject-matter, they are called Courts of available or natural jurisdiction. The growing global commercial activities gave rise to the practice of the parties to a contract agreeing before hand to approach for resolution of their disputes thereunder, to either any of the available courts of natural jurisdiction and thereby create an exclusive or non-exclusive jurisdiction in one of the available forum or to have the disputes resolved by a foreign court of their choice as a neutral forum according to the law applicable to that Court. It is well settled principle that by agreement the parties cannot confer jurisdiction, where none exists, on a Court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign Court; indeed, in such cases the English Courts do permit invoking their jurisdiction. Thus it is clear that the parties to a contract may agree to have their disputes resolved by a foreign Court termed as a `neutral Court` or `Court of choice`, creating exclusive or non-exclusive jurisdiction in it.”

Srinivasan J. V.P. Nagarajan vs. Prabhavathi 19 and R.2 CPC. Advocates Act Sec.49(c) and R.13 Advocates filing affidavits without realising implications and consequences and taking up the responsibility of a witness and liability to be cross-examined, unhealthy practice - Vain glory to think that as the members of the legal profession occupy a high status, his affidavit will be accepted on its own weight without any corroboration.

CPC. 19, R.2 Rule 13 in Chapter V in Part III of the Rules framed by the Bar Council of India, under Sec.49(c) of the Advocates Act, 1961: "An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he retires without jeoparadising his client`s interests." Advocate can file affidavit. “No doubt, it is true that each and every affidavit has got to be filed by the concerned party or by their authorized person, agent or attorney or person who knows the facts of the case also. Here, the advocate on record filed the affidavit wherein he ha specifically stated that he was well aware of the facts of the case and only in the said circumstances, he has filed an affidavit to set aside the exparte decree and also an application to condone the

delay. The circumstances under which the defendant was set exparte, explained by the deponent and it was only within the knowledge of the advocate on record and he knows the facts of the case and only in the said circumstances he had filed the affidavit That apart, the concerned advocate holds vakalat for the defendant and hence, he is entitled to represent his party. The petitions have been filed only to safeguard the right and interest of the party and it is not prejudicial to the interest of the party, and hence, it cannot be said that the advocate on record is not entitled to file the affidavit and petitions on behalf of his party, when especially the said petitions have been filed to safeguard the interest of the party.” by Mr. K. Gnanaprakasam J. in The Airport Director, Air Port Authority of India, Chennai vs. Gnanasekaran (2004) 2 M.L.J. 701

An advocate`s clerk can file affidavit. “Why I am extracting the contents of the affidavit is that the affidavit is sworn to by a person who is acquainted with the facts of the case and who is acquainted with the the proceedings of the Court. He narrated what transpired before the court on that date. …………. The clerk by himself has not filed the petition. It is well settled that any person who is conversant with the facts of the case and who is a witness as to what transpired before the Court is competent to file affidavit.” --by Mr. S.S. Subramani J. in L.C. Saptharishi vs. E.D. Balasubramaniam (2000-1 L.W. 130)

“The relationship between advocate and client is based only on confidence and trust. Legal profession is considered to be a noble profession and if an advocate is allowed to give advice to one party and appear for the opposite party in Court, the confidence reposed on him will be lost and his conduct will amount to prostitution of profession. Counsel appearing for one party is not expected to please both his party and opposite party and if he dose so, it will amount to professional misconduct and breach of trust.” -- by Mr. Justice S.S. Subramani J. in S.V. Duraiswamy vs. Dayalan and others (2000-1 L.W. 132)

Handing writing expert opinion -A.I.R. 1996 SC 1140 - Comparison of handwritings - by court - without the assistance of Handwriting Expert - not proper. - also verify AIR 1997 SC 3255

Handwriting Expert (2002) 2 M.L.J. 365 Gopal and another vs. Ambiga and others – Practise of sending original documents to Forensic Laboratory deprecated – Handwriting Expert can only take photographs of the original for comparison.

Handing writing expert opinion - (2005)3 M.L.J. 268 Chinnappan and another vs. Chinnammal - says : In Venkatalakshmiah vs. Venkatappa and another (1991)1 M.L.J. 383 this court (Madras High Court) has held thus: The decision in R.Ramaswamy vs. Seethamma (1990)2 L.W. 15 only says that it is not essential that the Handwriting Expert must be examined to prove or disprove a writing and that the Court is competent to compare the disputed writing with the admitted

writing. But that does not that in no case, the court could allow a party to establish his case by having the disputed handwriting examined by a Handwriting Expert. Ma be the court also can do the comparison of the disputed signature with any admitted signature and arrive at a decision in that regard. But when the defendants choose to have the benefit of the handwriting expert also to prove their case, they cannot be prevented unless their attempt is very much belated or with any ulterior motive.

Handing writing expert opinion -In Kothandapani Padayachi vs. Ranganatha Padayachi (1997) 1 M.L.J. 304, Madras High Court has held: This Court as well as the Supreme Court have been indicating that although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, he should, as a matter of prudence and caution, hesitate to base his finding solely on comparison made by himself. The prudent course is said to lie in obtaining the opinion and assistance of the expert also. It is equally reiterated that prudence demands that the court should be extremely slow in venturing an opinion on the basis of mere comparison since a comparison of handwriting is at all times a mode of proof hazardous and includive and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the evidence of experts.

Hand writing expert opinion -In Dhanakodi Pandayachi vs. Muthukumaraswami (1997) 2 M.L.J. 37 the Madras High Court has held that the role of the court while exercising the powers under Sec.73 of the Evidence Act and method of approach to be adopted would vary also depending upon the relative facts and circumstances of the case. In the light of the principles laid down by the Apex Court in the latest pronouncement referred above, one of the reasons assigned by the learned first appellate Judge in this case to reverse the finding of the learned trial Judge which has been recorded on undertaking a comparison by himself of the disputed signature with the admitted signatures cannot be said to be wholly erroneous in law or an unjustified criticism of the method of test adopted by the learned trial judge in the case. Handing writing expert opinion - In Somasundaram vs. Palani (2001) L.W. 511 it has been held that even though the court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose and after the promissory note in question was filed into court along with the plaint. A comparison should not have been made on he basis of those signatures.

Amendment of pleading – Or.6, Rule 17, Proviso CPC. will not apply to pleadings filed before the commencement of the Amendment Act and hence

proviso will not apply to plaint or written statement filed before 1.7.2002. Amendment Acts 1999 and 2002 - Rethinam @ Anna Samuthiram Ammal vs. Syed Abdul Rahim (2005)3 M.L.J. 94 P.K. Misra J. of Madras High Court (Madurai Bench)

Amendment of pleading – Chinnakkal vs. Marakkal (2005)3 M.L.J. 577 – Relief of mandatory injunction sought to be included – original suit for permanent injunction – proposed amendment seeks to amend the plaint for mandatory injunction and the court is called upon to adjudicate an entire different case.

C.P.C. Amendment - Analysis by Supreme Court - (2005) 6 S.C.C. 344 Salem Advocate Bar Association, T.N. vs. Union of India

Order 1, Rule 10 C.P.C. - Impleading of party - in Specific Performance Suit - Only parties to the contract or their L.Rs. can be parties and not a party setting up title over the property adverse to the vendor. - Decree can be passed, in the absence of such third party setting up title - (2005) 6 S.C.C. 733 -

"The ordinary rule of civil law is that ….the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally, has, by reason of subsequent events, become inappropriate or cannot be granted, (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise." -- Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256. Also see Sasitnagjee Purushotham & Co. vs. Vimalabai Prabhulal and others (2005) 8 SCC 252, and Kedarnath Agarwal (dead) and another vs. Dhanaraj Devi (dead) by L.Rs. and another (2004) 8 SCC 76 Any person aggrieved with an order/judgment can file appeal against the same and such person need not be a party to the suit or proceedings in the trial court - M.P. Kanoi vs. Palani 2001(3) C.T.C. 452 per David Christian J. (Madras High Court) - Mariasilvar vs. Srikumari Amma 1998 II C.T.C. 218 per Sampath (Madras High Court) - Adi Pherozshah vs. H.M. Seervai A.I.R. 1971 S.C. 374

A sale deed executed prior to attachment before judgment, though registered subsequently, will prevail over attachment before judgment (Hamda Ammal vs. Avadippa Pathar – 1991(1) SCC 715)

Not only a sale deed but even an agreement of sale will prevail over attachment before judgment made subsequent to the agreement of sale. (Vannarakkal

Kallalthil Sreedharan vs. Chandramaath Balakrishnan – 1990(3) SCC 291)Chandrammal .....AppellantVsJayarama Naicker .....RespondentSpecific Relief Act 1963 – Suit filed by plaintiff for declaration and injunction- Suit dismissed –first appeal also dismissed- plaintiff filed second appeal in High Court held that plaintiff relies only on the sale deed- suit property has been mentioned only as a Grama Nattam – Plaintiff failed to produce any document to pro9ve her possession and enjoyment over the suit property - defendant filed Thoraya Patta, house tax receipts and ration card issued to him – documents show that defendant in is possession and enjoyment of the property – no ground or substantial questions of law to interfere with the findings of the court below – second appeal is dismissed

Second Appeal filed under section 100 of the code of Civil procedure judgment and decree dated 6.8.1999 made in A.S. No.111 of 1998 on the file of

SUPREME COURT OF INDIA2009 (3) tlnj 123 (Civil)Civil Appellate JurisdictionThe Hon’ble Mr. Justice Dustice Dr. Mukundakam SharmaandThe Hon’ble Mr. Justice Dr. B>S> Chauhan, J>Civil Appeal No.6508 of 2005Date. 29.5.2009

Ramdas .... ...Appellant Vs.Sitabai & Ors .....RespondentsTransfer of property Act 1882 – An undivided share of a Co- Sharer may be a subject of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual consent or by a decree of the court – Civil Appeal is dismissed.

Without there being any phgysical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this court in M.V.S. Manikayala Rao VsM. Narasimhaswami & Ors (Air 1966 SC 470), wherein this court stated as follows:“Now, it is well settled that the purchaser of a co-parcener’sundivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partiton, might be found to fall to the share of the co-parcener whose share he had purchased.”

16. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheswar Mukherjee Vs. Bhubneshwar PrasadNarain Singh & Ors. (Air 1953 SC 487), Wherein this Court held as under:-

“All that (vendee) pu8rchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. (Emphasis added)

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