Live law Civil: 2017

Saturday 2 December 2017

The Registration Act, 1908 - Sec. 69 - *Whether Sub Registrar or Registrar General can cancel registration of a registered document?

✍The Registration Act, 1908 - Sec. 69 - *Whether Sub Registrar or Registrar General can cancel registration of a registered document?*
✍ *Held:* There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration, the power of the Inspector General is limited to do superintendence of registration offices and make Rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.
*-Supreme Court*
Satya Pal Anand
Vs.
State Of M.P. And Others
✍
*(2016) 10 SCC 767*

Friday 1 December 2017

What will be effect if date of accrual of cause of action is inaccurately mentioned in plaint?

We have considered the submissions made on either side. According to Order 7 Rule 1 C. P. C. the plaint is required to contain vide clause (e) the facts constituting the cause of action and when it arose. What is the proper cause of action, must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be over emphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action.

Civil Procedure Code - Order 7 Rule 1--Cause of action--Inaccuracy in mentioning date of cause of action--effect of.
What is the proper cause of action must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be over emphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action. This may be determined or inferred from the facts stated.

Rajasthan High Court
Jethmal vs Hiralal And Ors. on 21 September, 1971

Equivalent citations: AIR 1972 Raj 220, 1971 (4) WLN 472

Bench: J Narayan, Chhangani

1. This is a special appeal by leave under Section 18 (2) of the Raiasthan High Court Ordinance 1949, against a decree of a learned single Judge of this Court dated 13th May, 1966 passed in S. B. Civil Second Appeal No. 748 of 1960. By this decree the learned single Judge accepted the appeal of the plaintiff-respondent Hiralal and reversed the iudgment and decree passed by the first appellate Court on 27th August 1960 against Himmatram defendant and restored the trial Court's decree against Jethmal defendent. The learned single Judge, however, maintained the dismissal of the suit against the defendant respondent Ratanlal.
2. The facts relevant for the disposal of the appeal may be stated at the outset.
3. The plaintiff respondent Hiralal instituted a suit for the recovery of Rs. 6,215/- in the Court of the District Judge, Jodhpur, against the three defendants, namelv. Ratanlal (respendent No. 2) Jethmal (appellant) and Himmatram (respondent No. 3). The suit was. however, transferred to the Court of Civil Judge. Jodhpur. The case as set out in the plaint is as follows:--
4. The plaintiff advanced monev to the defendant Himmatram for the purchase of a house from time to time. The money advanced totalled Rs. 8,000/-. The defendant Himmatram. however did not purchase the house. The plaintiff thereupon demanded the repayment of the monev lent to him. Himmatram informed him that he had invested the money in the Motor Exchange Company a partnership firm, in whose name and style the defendants Ratanlal and Jethmal carried on business as partners. The defendant Himmatram. however, executed a 'Rukka' in the sum of Rs. 8,000/- in favour of the plaintiff. The plaintiff subsequently requiring money for building a house demanded the repayment. The defendant Himmatram came forward with a case of repayment of Rs. 2,000/- The plaintiff denied having received Rs. 2,000/- The defendants Nos. 1 and 2 Ratanlal and Jethmal got involved in the controversy and proposed to the plaintiff that if the (plaintiff) abandoned his claim for the amount of Rs. 2,000/- and agreed not to file a suit against the defendant Himmatram they would Day Rs. 6,000/- to him. The plaintiff at the instance of the defendants Nos. 1 & 2 gave up the claim for Rs. 2,000/ and agreed to accept Rs. 6000/- from them (defendants Nos. 1 & 2). Particulars of the date and time in connection with this arrangement have not been given but it appears that this must have taken place sometime before 6th March. 1949. The plaintiff's further case is that on 6th March, 1949 he went to the defendants Nos. 1 & 2 for obtaining payment of Rs. 6,000/-.
The defendants Nos. 1 & 2 informed him that they could not arrange for the money. They, however, proposed to give to the plaintiff a post-dated cheque in the amount of Rs. 6,000/-, which was to be drawn from the joint account of the defendants Nos. 1 & 2 in the Jaipur Bank. The plaintiff having agreed, they gave him cheque No. 06319 dated 6-4-49 drawn by Jethmal. The plaintiff sent this cheque to his aeent but it was not honoured by the Jaipur Bank and consequently, the plaintiff's agent sent the cheque back to him. The plaintiff then served a telegraphic notice upon the defendants Nos. 1 ,& 2 and failing to get the amount, he filed a suit for Rs. 6,000/- by wav of principal and Rs. 215/- as interest. The plaintiff also impleaded Himmatram as defendant No. 3 although he did not state expressly that Himmatram continued to be liable under the original Rukka. He also did not state how Himmatram continued to be liable in respect of the plaintiff's agreement with the defendants Nos. 1 & 2 and the issue of the cheque by the defendant No. 2 Jethmal in his favour.
5. The defendants filed separate written statements. Ratanlal defendant denied that there was anv partnership business in the Motor Exchange Company between him and the defendant Jethmal or that there was any partnership business with the defendant Himmatram. He denied the averments made in the plaint and pleaded that he was not aware of anything that might have been done by the defendant No. 2 Jethmal. He admitted that there was ioint account of himself and Jethmal in the Jaipur Bank, but pleaded that he could not be held liable simply on that account. He alternatively pleaded that even if he be held as a partner of Jethmal defendant, he could not be held liable as Jethmal exceeded his powers as a partner. Jethmal defendant admitted his partnership with Ratanlal in the Motor Exchange Company. He further admitted having drawn the cheque and handed over the same to the plaintiff but denied the plaintiff's case as to the circumstances in which the cheque was given to the plaintiff. He came forward with the counter version. According to him. the plaintiff had to send money to his agent and as he had no bank account, he approached the defendant No. 1 Ratanlal to give him a postdated cheque which he would send to his agent and that he would arrange for the amount and deposit it in the account of the defendant No. 1.
The defendant No. 1 was related to the plaintiff and, therefore, he accepted the proposal of the plaintiff. As the defendant No. 2 was carrying on business of partnership with the defendent No. 1 he Save a cheque in the ioint account under instructions from the defendant No. 1. The defendant No. 3 Himmatram admitted to have received advances amounting to Rs. 8,000/- but denied having invested the monev in the Motor Exchange Company. He pleaded that the amount of Rs. 2,000/- had been paid to the plaintiff and that the claim for that amount was not abandoned. He also denied that the defendants Nos. 1 and 2 undertook to pay Rs. 6,000/-. He supported the version of the defendant No. 2 in connection with the drawing of the cheque by Jethmal defendant No. 2. He also pleaded that the plaint did not disclose cause of action against him. He further prayed that in case a decree is passed against him. it should be made payable by instalments. The trial Court framed the following issues:--
"1. Whether Ratanlal defendant Not Is liable to pav the amount entered in the cheaue which was the basis of the suit?
2. Is the plaintiff entitled to interest and. if so. to what extent?"
3. Is the cheaue (which forms the basis of the suit) without consideration?
4. Is defendant No. 3 not in a position to pay the amount in one instalment and is it necessary to fix instalments that reason for the payment of the decree.
5. Relief?"
The trial Judge held that Himmatram defendant stood discharged as a result of what took place between the parties on 6-3-49. He. however, passed a decree for Rs. 6,000/- against Ratanlal and Jethmal holding that the cheque was for consideration and Ratanlal was liable on the basis of the cheque signed by the defendant No. 2 Jethmal as the defendants Nos. 1 & 2 Ratanlal and Jethmal were partners and the cheaue was given in the joint account by the defendant No. 2 Jethmal to the plaintiff in the presence of the defendant No. 1 Ratanlal. The trial Judge also referred to the reply sent by Ratanlal to the telegraphic notice in which Ratanlal admitted having handed over the cheque to the plaintiff on behalf of the partnership firm.
6. The defendant No. 2 Jethmal did not file an appeal. The defendant No. 1. Ratanlal. however, preferred an appeal in the Court of the District Judge. Jodhpur and the plaintiff filed cross-objection regarding interest and costs. The lower appellate court did not agree with the finding of the trial Court that there was a novation of contract and held that a finding of novation could not be possibly arrived at and gave the following reasons in support of its conclusion:
1. That no plea of novation was taken in the plaint.
2. That the question of novation is a question of fact but no issue was framed about it.
3. That the plaintiff filed an application on 4-8-51 under Order 6 Rule 7 CPC to amend the plaint by the addition of plea that the cause of action arose on December 28. 1947 and April 6. 1949 and in this manner sought to base his claim on the original rukka Ex. P. 3.
Thus he not only did not plead novation but stoutly resisted such a plea. The lower appellate Court also repelled the plaintiff's case that the giving of a cheque should be treated as resulting into a contract of guarantee. He. therefore, allowed the appeal and dismissed the suit not only against Ratanlal but also against Jethmal. Acting under Order 41 Rule 33 CPC he decreed the suit against Himmatram. Hiralal's cross oblections were dismissed. Hiralal then filed second appeal in this Court. The learned single Judge referred to the plaint allegations that the defendants Nos. 1 & 2 had agreed to pay Rs 6,000/- to the plaintiff if he relinquished his claim for Rs. 2,000/- from his claim for Rs. 8,000/- against Himmatram and also did not sue him and that it was in pursuance of such an agreement that the cheque (Ex. P. 1) was handed over to the plaintiff on 6-3-49. The learned Single Judge also referred to the defendants' contention that, according to the accounts Ex. P. W. 5/1. the amount of Rs. 2,000/-has alreadv been paid by Himmatram to the plaintiff even before the original rukka. The learned single Judge did not go into the controversy relating to the alleged relinquishment of claim for Rs. 2,000/- but observed that "vet it cannot be denied that Himmatram was liable to pay at least Rs. 6,000/- to the plaintiff." The learned single Judge then noticed a number of cases namely. Fullerton v. Provincial Bank of Ireland 1903 AC 309 Srinivasa Raghava Aivangar v. K. R. Ranganatha Aivangar 36 Mad LJ 618 = (AIR 1919 Mad 528) and Oliver v. Davis 1949-2 All ER 353 and deduced the following principle:--
"Forbearance to sue is a question of fact to be decided on the evidence on the record and circumstances of a case may sometimes furnish surer ground for holding in favour of the plaintiff."
He distinguished Oliver's case. 1949-2 All ER 353 on facts and observed as follows:--
"In the circumstances of the present case, it was at the instance of Jethmal and Ratanlal that the plaintiff had forborne sue the defendant or had at least forborne to sue defendant Himmatram till the date of honouring the cheque arrived."
The learned Judge then dealt with the controversy "whether the plaintiff had agreed not to sue Himmatram for ever which, in other words, amounts to saving whether he discharged Himmatram altogether from liability as soon as he received the cheque from Jethmal". and after scrutinising evidence on record recorded a conclusion in these words:--
"I find that the plaintiff while adducing evidence had taken the attitude that Himmatram stood discharged of his old liability and it was not only merely a temporary forbearance which was promised to him. This is also the stand taken by the learned counsel for the plaintiff-appellant in this Court. In this view of the matter Section 62 of the Indian Contract Act which relates to novation of contract need not therefore be discussed at length."
Then remarking that the observation of the lower appellate Court "that novation is not consistent with the original debtor remaining liable in anv form is true only to the extent that no liability can be attached to the original debtor under the old contract, the learned lower appellate Court eventually held that so far as Jethmal is concerned, the cheque being with consideration, he cannot be exonerated. Considering the case of Ratanlal. the learned single Judge treating the suit as based upon cheque a negotiable instrument examined at leangth the provisions of the Partnership Act governing the firms liability for acts done by the partners in their capacity as implied agents and the special Provisions of the Negotiable Instruments Act, particularly Section 27, and stated the Principle as follows:--
"When a suit has been filed on the basis of a negotiable instrument, the rights and liabilities of the parties are governed by the special provisions of the Negotiable Instruments Act and if any of the Provisions of the Partnership Act or Contract Act are in conflict, the provi-sions contained in the Negotiable Instruments Act must prevail. What Section 27 of that Act says is that if a duly authorised agent has acted in the name of the Principal, the Principal is liable on the instrument; it must be plain that the agent was acting in the name of the Principal", The learned Judge then noticed a number of cases in support of this proposition and eventually observed.
"Thus, when a suit is based only on the Negotiable Instruments Act. it is the instrument only which can be looked into for determining the rights and liabilities of the parties"
The learned Judge expressed his reluctance to treat the reference to the ioint account as sufficient to hold that "on the face of it Ex, P/l was made by Jethmal defendant on behalf of the firm." Observing further that the contents of the instrument must show that the agent has signed for the principal he refused to consider the circumstances of the case and evidence on record to establish that Jethmal had made the cheque on behalf of the firm, and in doing so. relied upon a number of cases. In the end. the learned Judge concluded.
"As a result of the aforesaid discussion, I am of the opinion that no liability is cast on Ratanlal on the basis of the cheque."
Examining the case of Himmatram. the learned Judge held that the lower appellate Court could not have decreed the suit against Himnoatram without examining the plea that his liability was extinguished simply on the statement made by him under Order X. Rule 1 CPC." The learned Judge therefore, accepted the plaintiff's appeal, set aside the decree against Himmatram and granted decree against Jethmal and maintained the dismissal of the suit against Ratanlal. Jethmal has filed the present appeal.
7. We have heard Mr. Hastimal for the appellant. Mr. Hastimal prayed alternatively that a decree should at any rate be passed against Ratanlal. Also we heard Mr. H, C. Jain for Ratanlal. We did not call upon Mr. Rule C. Jain who appeared for the plaintiff-respondent.
8. Arguing with reference to Issue No. 3 of the point of absence of consideration for cheaue. Mr. Hastimal contended that there was no valid novation of the contract extinguishing Himmatram's liability under the old contract evidenced by 'Rukka' dated 28-12-1947. He in this connection, emphasised the plaintiff's claim. It was also contended that the finding of the learned District Judge that there was no novation was a finding of fact and was binding in second appeal and the learned single Judge was not justified in interfering with the finding of the learned District Judge.
9. We have given our careful consideration to the submissions and are unable to accept them. We must at once state that the only finding of facts are that Ratanlal and Jethmal agreed to give a post-dated cheque and gave a cheaue in consideration of the plaintiff Hiralal's forbearance to sue Himmatram and discharging him from liability. (We need not express any opinion in connection with Hiralal's agreement to relinquish claim to! the extent of Rs. 2,000/-). This finding of fact is binding but the further question whether the facts found resulted in novation of contract is not a pure question of fact but is a mixed question of law and fact, and there was nothing to prevent the learned Single Judge from examining this question in second appeal and reaching his own conclusion. We are also of the opinion that the conclusion reached by him that there was a novation of the contract cannot be taken exception to and, we are in complete agreement with this conclusion. An analysis of the plaint shows' that sometime before 6/3/49 the defendants Nos. 1 & 2 proposed to the plaintiff that he should give up his claim for Rs. 2,000/- and should forbear to sue Himmatram and that in consideration of thLs they agreed to pay Rs. 6,000/~. The plaintiff agreed and the contract was completed. Later on, on 6/3/49. in pursuance of this' contract, the plaintiff approached defendants Nos. 1 & 2 and on that occasion they agreed to give him the cheque. On these facts there can be no doubt that a contract was created between the plaintiff and defendants Nos. 1 & 2 in consequences of which Himmatram's liability was discharged. It is true that the plaintiff in his suit impleaded Himmatram as defendant along with defendants Nos. 1 & 2. But this subsequent conduct of the plaintiff cannot have any relevance and bearing on the nature of the initial contract entered into by him with the defendants Nos. 1 & 2. In a case of completed contract the plaintiff could not be permitted uni-laterally to invalidate or alter the contract and to revive the liability which had I once been extinguished.
Before the learned single Judge the counsel for the plaintiff candidly stated that in fact the arrangement which was arrived at the time of the taking of the cheque was that the plaintiff had given Complete discharge to Himmatram in receipt of his liability of Rs. 6,000/-. He has also stated that the evidence produced by the plaintiff also supported that conclusion. He. however, explained that the plaintiff either through ignorance of his legal rights or through foolishness sued Himmatram and persisted in obtaining Borne relief against him. The learned counsel also contended that he might have taken in view that after the cheque was dishonoured the liability of Himmatram revived. Approving the argument of the counsel for the plaintiff, the learned Judge rightly remarked that the lower appellate court took a more grave view of the attitude of the plaintiff and "has laid too much emphasis on these circumstances which cannot be taken to be of such consequence as to refuse the plaintiff a decree against defendants Nos. 1 & 2 if he is otherwise entitled to get it on the true appreciation of the nature of the con-'tract."
We are in entire agreement with the view taken by the learned single Judge, that there was valid novation of contract under which the defendants Nos. 1 & 2 took liability of Himmatram'.s debt due to the plaintiff. In this view of the matter, there could be no question of the contract being one of guarantee. The" learned counsel made some arguments in this behalf but these arguments need not be noticed.
10. Another line of reasoning adopted by Mr. Hastimal to repudiate Jethmal's liability was that the arrangement between the plaintiff neither resulted in a case of novation nor in a case of surety but resulted in a conditional contract creating mutual reciprocal promises. Under the contract, the plaintiff had made a promise not to sue Himmatram. As he did not keep up his promise and sued Himmatram he could not sue the defendants Nos. 1 & 2. Reliance was placed in this connection upon Royal Bank of Canada v. Joseph Salvatori (AIR 1927 PC 272). In that case a contract of guarantee provided.
"In consideration of the Royal Bank of Canada, agreeing to continue to deal with Antoni Brothers, herein referred to as the business as a Bank the undersigned hereby jointly and severally guarantee payment to the Bank of the liabilities which the customer has incurred or is under or may incur or be under the Bank, whether arising from dealing between the Bank and the customer or from other dealings by which the Bank may become in any manner whatsoever a creditor of the customer. The Bank failed to perform their covenant in that thev did not continue to deal with the firm as their cus-
tomer in the way of their business as a Bank."
On these facts it was held.
"that the guatantor also was not bound to perform that covenant by reason of this failure of the Bank."
The facts of this case are distinguishable and the principles of this case cannot apply to the facts of the present case. The contract between the plaintiff and the defendants Nos. 1 & 2 properly construed amounts to this that the defendants Nos. 1 & 2 took liability for Himmatram's debt and that Himmatram's liability was discharged. It will not be proper to treat the arrangement between defendants Nos. 1 & 2 as implying that the plaintiff undertook a reciprocal promise to do something in future. In consideration of the plaintiff discharging the liability of Himmatram the defendant became liable to the plantiff. The subsequent conduct of the plaintiff at the best is only an attempt to disregard the legal implication of the contract but cannot be treated as a failure to perform a reciprocal promise. The contention in this behalf is negatived.)
11. Next, it was contended that the consideration for the promise of the defendants Nos. 1 & 2 to pay Rs. 6,000/-to the plaintiff and the giving of a cheque in pursuance thereof was in lieu of the plaintiff's agreement to forbear to sue Himmatram. As the plaintiff subsequently sued Himmatram it brought about a failure of consideration and consequently. the plaintiff cannot enforce liability under the agreement and the cheque against defendants Nos. 1 & 2. This argument is also equally untenable. It cannot be denied that in spite of his initial demand of repayment from Himmatram he did not sue him but agreed to accept Rs. 6,000/-from defendants Nos. 1 & 2. He also obtained a postdated cheque from them. The cheque being dishonoured, he served notice on defendants Nos. 1 & 2 and thereafter sued them. It is true that while sujng them he also impleaded the defendant Himmatram. There was a completed contract between the plaintiff and the defendants Nos. 1 & 2 under which Himmatram's liability was extinguished. The impleading of Himmatram in the suit against defendants Nos. 1 & 2 cannot bring about a failure of consideration so far as the defendants Nos. 1 & 2 are concerned.
12. No other argument was made on this aspect of the case.
13 In the alternative. Mr. Hastimal argued that if he is held liable under the arrangement made between the plaintiff and defendants Nos. 1 & 2 the defendant Ratanlal should also be held liable and that the decree of the learned single Judge be modified and a decree be passed against Ratanlal also in order to do complete iustice to the parties. He relied upon the provisions of Order 41 Rule 33 C. P. C.
Arguing on merits, he contended that the learned single Judge exonerated Ratanlal on wrong assumption that the plaintiff's suit was based merely upon a cheque. It was contended that thp plaintiff's suit was not based upon the cheque but was based upon an oral agreement entered into between the plaintiff and the defendants Nos. 1 & 2. He invited our attention to paras 4 and 5 of the plaint to show that the plaintiff referred to an oral argeement between the plaintiff and defendants Nos. 1 & 2 under which defendants Nos. 1 & 2 undertook liability for payment of Rs. 6,000/- to them. In para 5. the plaintiff stated having approached the defendants Nos. 1 & 2 to obtain payment of' Rs. 6000/- in pursuance of an agreement referred to in para 4. It was vehemently contended that in the face of these averments it was hardly proper to hold that the suit was based upon the checiue a negotiable instrument.
14. In answer. Mr. Jain referred to para 8 of the plaint wherein it was stated that the cause of action arosp on 6-4-49 He also emphasised that the plaintiff claimed interest with effect from 6-4-49.
15. We have considered the submissions made on either side. According to Order 7 Rule 1 C. P. C. the plaint is required to contain vide clause (el the facts constituting the cause of action and when it arose. What is the proper cause of action, must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be overemphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action. This may be determined or inferred from the facts stated. On a careful analysis of the allegations in the plaint we have no doubt that the plaintiff's suit is based upon an oral agreement between the plaintiff and the defendants Nos. 1 & 2. under which the defendants Nos. 1 & 2 undertook liability for Himmatram for the debt due to the plaintiff and got Himmatram's liability discharged. The delivery of the cheque was a later act in pursuance of the undertaking. This is abundantly clear from the averments made in the plaint.
It is true that an issue as to the absence of consideration was framed only in connection with the cheque but it is clear from the record that the parties were aware of the real controversy touching the agreement between, the plaintiff and defendants Nos. 1 & 2 and the giving of the cheque in pursuance thereof. Evidence has been led and findings recorded with regard to the agreement. In these circumstances, we are of the opinion the the plaintiff's suit is not based merely upon cheque. The learned single Judge discussed the law and stated the principle in connection with the firm's liability for a negotiable instrument issued by a partner in a case brought on the basis of the negotiable instrument. We have no quarrel with the view of law taken by him. The suit, however, having not been treated by as being based upon checiue but the agreement the original cause of action, the principles of law laid down by the single Judge have no bearing in the present case.
16. Taking up the question whether the defendant Jethmal can press for a ioint decree asainst Ratanlal to do complete iustice between the parties, Mr. Jain contended that the Power under Order 41 Rule 33 C. P. C. is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross obiection. it must be exercised with care and caution. It was also urged by him that the power conferred by this rule will be confined' to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adiust rights of the parties according to -justice* equity and good conscience.
17. We do not find force in the submission of Mr. Jain. We need only refer to two cases in support of our view namely, Isri Prasad Singh v. Jaffat Prasad Singh. AIR 1937 Pat 628 and Muniappa v. Dr. C. A. Ramasetty. AIR 1961 Mvs 166. While Isri Prasad Singh's case generally supports a liberal view in resortinff to Order 41 Rule 33 C. P. C. in Muniappa's case the facts are similar to the facts of the present case. In that case, the Court of first instance dismissed the suit against defendant No. 1 but gave the plaintiff decree which he wanted against defendant No. 2. Although the plaintiff did not appeal from that part of the decree by which his suit against defendant No. 1 was dismissed, defendant 2 preferred an appeal from the decree made against him. The lower appellate Court affirmed the decree made against defendant 2 and in the exercise of its powers under Rule 33 of Order XLI of the Code of Civil Procedure it also made decree against defendant 1. The defendant 1 preferred a second appeal in the Mysore High Court. The High Court dismissing the appeal, observed as follows:
"It is clear from the language of Order 41 Rule 33 that if the appellate Court considers that in a particular case, a decree ought to have been made, but has not been made it has clearly the power to make that decree which has not been made by the Court, whose decision is under appeal. If the circumstances of the Case and the interest of iustice demand the variation of the decree in that wav. it is clear that the appellate Court has the power to do so.
Such variation may be necessarv for the purpose of dismissing a suit against persons against whom decrees have been made but which have not been appealed against. Likewise, variation may be necessarv in order to make a decree against a person aeainst whom none has been made but the interest of iustice requires that it should be so made."
We have considered the facts and the circumstances of the case in the light of the above principle. The facts found which are unchallengeable, are that both the defendants Nos. 1 & 2 entered into an agreement with the plaintiff, that a cheque made by Jethmal to be drawn in the joint account of the defendants Nos. I & 2 was given to the plaintiff in the presence of the defendant No. 1 and that the defendant No. 1 admitted having given the cheque in his notice given in reply to the plaintiff's telegraphic notice. The defendant Jethmal's case is that the plaintiff was related to the defendant Katanlal and that he gave the chcaue under instructions from Ratanlal. In these circumstances, it will hardlv be in the interest of iustice that the defendant Jethmal alone should be held responsible under the agreement between the plaintiff and the defendants Nos. 1 & 2. In the interest of complete iustice to the parties, it is necessarv that both thp defendants should be liable for the plaintiff's debt and for that purpose, the suit deserves to be decreed against both of them.
18. Accordingly, we dismiss the defendant's appeal but exercising powers under Order 41' Rule 33 C. P. C. direct that the plaintiff's suit should also stand decreed against defendant Ratanlal. The decree of the learned single Judse is modified and the decree of the trial Court passed against both the defendants is restored.
19. However in the circumstances of the case, we leave the parties to bear their own costs in this Court.

How to prove right of way by easement of prescription ?

http://www.advok8.in/Consult/ConsultAll.aspx
How to prove right of way by easement of prescription ?

A careful perusal of the plaint would show that the plaintiffs
have failed to plead that since what date to which date plaintiffs are
using the land and also failed to plead that they are using the land
for last 30 years against the State/defendant. They have only
pleaded that they are using suit land for last 12 years. The
Supreme Court in the matter of Justiniano Antao and others v.
Bernadette B. Pereira (Smt.) (2005) 1 SCC 471S.A. No. 243 of 2016
, has clearly held that in order to
establish a right by way of prescription, there should be specific
pleading and categorical evidence in general and specifically held
in para 9 of the judgement as under:
“9. We have gone through the three judgments i.e. trial
court, first appellate court and that of the High Court. We
have gone through the evidence adduced. From this, it is

more than clear that there is no specific averment in the
plaint or in the statement of the witnesses showing that this
access from the land of the defendants was used as of right
for the last 20 years. The evidence very categorically shows
that the plaintiff has an access on the south east side and
this was being used by her for a long time. It was pointed
out that only in the year 1984 the plaintiff has started using
the access through the property of the defendants. It is also
admitted that the defendants were during that time on board
of ship and as soon as they came and saw the use of their
land by the plaintiff, they put obstructions to it. Therefore, it
is clear that it is not the case that the plaintiff has been using
the access as of right through the property of the defendants
for more than 20 years. Since the plaintiff has an access
through the southern side of her property we see no reason
why the property of other persons be used as an access to
her house. If the plaintiff had no access to her house except
through that of the property of the defendants then perhaps
we would have considered appreciating as easement of
necessity. But in order to establish a right by way of
prescription one has to show that the incumbent has been
using the land as of right peacefully and openly and without
any interruption for the last 20 years. There should be
categorical pleadings that since what date to which date one
is using the access for the last 20 years. In order to
establish the right of prescription to the detriment of the
other party, one has to aver specific pleadings and
categorical evidence. In the present case, after going
through the pleadings as well as the statement of the
witnesses it is more than clear that the plaintiff has failed to
establish that she has been using the access peacefully,
openly as of right for the last 20 years. More so we find that
material placed on record and especially the photographs
which have been exhibited and marked as Ext. D.W.3/A in
the court that there are two pillars showing the existence of
a gate in southern side but it has been closed down by
rubble stones. The defendants have put up a strong case
that the plaintiff has an opening in the southern side and it is
amply established that there exist two pillars showing the
existence of a gate which has been covered by rubble
stones in the southern side. It was also pleaded that the
plaintiff was using the same and it is only after 1984 she got
the gate constructed through the land of the defendants.
Therefore, on the basis of the evidence and statement of the
witnesses, we are satisfied that the first appellate court has
correctly approached the matter and the view taken by the
High Court as well as the trial court does not appear to be
based on correct appreciation of facts.
5. In the above referred to decision, their Lordships have held
that there should be categorical pleadings that since what date to
which date one is using the access for the last 20 years. In order
to establish an easement by way of prescription to the detriment of
the other party, one has to aver specific pleadings and lead
categorical evidence.
6. Both the Courts below concurrently held that the plaintiffs
failed to plead and prove the necessary ingredients to establish the
right of easement as required by Section 15 of the Indian
Easement Act and keeping in view the ratio of law laid down by the
Supreme Court in the aforesaid case, the concurrent finding of fact
recorded by both the Courts below is based on evidence available
on record and it is neither perverse nor contrary to the record. No
substantial question of law is involved in this second appeal.
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 243 of 2016
Rajendra Prasad Shukla
V
State Of Chhattisgarh
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 02/09/2016
Citation:AIR 2017(NOC) 70 Chhattisgarh

certain circumstances time to file Written statement can be extended beyond 90 days. Written statement w.s filing after 90 days

The Supreme Court of India in the case of Sandeep Thapar Vs. SME Technologies Private Limited, AIR 2014 SC 897 : (2014) 2 SCC 302 : JT 2014 (1) SC 553 : 2014 (1) SCALE 375 held that in certain circumstances time to file Written statement can be extended beyond 90 days.

Written statement w.s filing after 90 days

Thursday 26 October 2017

Ad interim injunction - Defendant made a statement that he will not demolish the wall - I

*IMPORTANT DECISIONS (14.10.2017)*

*Ad interim injunction - Defendant made a statement that he will not demolish the wall - In view of statement case adjourned for filing written statement and reply to stay application - Written statement filed - Two days thereafter wall demolished - View taken by Courts below that statement of defendant that he shall not demolish wall was valid till filing of written statement which is a possible view - No illegality in the view taken by Courts below. (2010(1) Civil Court Cases 269 (P&H)*

*Civil & Criminal liability - Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. (2010(1) Criminal Court Cases 779 (S.C.)*

*Contempt of Courts - Default alleged though is unmistakably evident, but in the absence of any wilful or deliberate intention to commit the same, a person is not liable for contempt. (2017(3) Apex Court Judgments 080 (S.C.)*

*Criminal breach of trust & cheating - Non-payment of bill amount pertaining to contract between parties - Offence u/ss 406 & 420 IPC not made out. (2015(1) Criminal Court Cases 002 (S.C.)*

*Death of complainant - Held, death of complainant cannot ipso-facto bring about termination of criminal proceeding. (2014(1) Criminal Court Cases 573 (Allahabad)*

*Dishonour of cheque - Accused residing outside jurisdiction of Court - Inquiry/investigation u/s 202 Cr.P.C. - Held, provision of S.202 Cr.P.C. is not applicable to proceedings u/s 138 of Negotiable Instruments Act. (2014(3) Civil Court Cases 475 (P&H)*

*Dying declaration - Even a statement given u/s 161 Cr.P.C. to a police officer may be regarded as a dying declaration. (2017(3) Criminal Court Cases 860 (Calcutta)*

*Offence u/ss 307, 452, 324, 323, 427 & 34 IPC - Compromise - Chances of conviction are remote and bleak - FIR quashed. (2017(3) Criminal Court Cases 851 (P&H)*

*Tenancy agreement between employer and employee - Employee is under contractual obligation to vacate the quarter on his retirement. (2017(3) Apex Court Judgments 114 (S.C.)*

*Written statement - Failure to make specific denial amounts to an admission. (2017(3) Apex Court Judgments 001 (S.C.)*

Loudspeakers-Religious-places-Vs-Right to privacy-Delhi-HC-issues-Notice to Centre-read-petition/

Loudspeakers-Religious-places-Vs-Right to privacy-Delhi-HC-issues-Notice to Centre-read-petition/ The Delhi High Court has issued notice to the Union of India on a public interest litigation for removal of loudspeakers from all religious structures on the ground that their use is an encroachment on a person’s “right to be left alone and spatial control” and thus violates the newly recognised fundamental right to privacy.

A bench headed by Acting Chief Justice Gita Mittal issued the notice on the PIL filed by social activist Sanjjiiv Kkumaar.

Loudspeakers not intrinsic to any religion

Sanjjiiv, in his PIL, traced the advent of all religions in India to say, “Hinduism is 4,000 years old, Jainism is 2,600 years old, Buddhism is 2,500 years old, Christianity is 2,000 years old, Islam is 1,400 years old, Sikhism is 500 years old and on another hand, Moving coil current loudspeakers are not even 100 years old. Thus, it’s beyond doubt, and as facts and truth speaks for itself per se, loudspeakers were never a part of any religion”.

“As loudspeakers is not part of/intrinsic to any of the religions as all religions are 4,000 to 500 years old whereas loudspeaker came into existence in 1924, that is less than 100 years and hence, banning them will not violate Article 25 or 26 of the Constitution of India,” he said.

The petition also quoted from the Supreme Court’s verdict in Forum, Prevention of Envn. and Sound Pollution as: “No religion ever says to force the unwilling to listen to expressions of religious beliefs.”

“This observation of Hon’ble Apex Court is of utmost importance as what Supreme Court says, Loudspeakers do exactly opposite of the same and hence violate fundamental rights of citizens of India,” the PIL said.

Man’s house is his castle, loudspeakers breach right to be left alone.

The petitioner relied heavily on the privacy judgment of the Supreme Court to say that its use is breach of privacy.

“Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty,” it said.

It quoted an observation made by Justice DY Chandrachud in the privacy judgment that “one’s house is like a castle to him. If loudspeakers are encroaching one’s right of spatial control (one’s home), one’s right to left alone, then what’s the meaning of fundamental rights? It will be just on paper. Hence to protect and uphold the fundamental rights of one’s “left alone”, “personhood (physical and mental peace), spatial control - Loudspeakers need to go”.

The petitioner said that use of loudspeakers certainly takes away the right of the citizens to speak with others, their right to read or think or the right to sleep.

“There may be heart patients or patients suffering from nervous disorder may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. Toddlers, kids are equally affected,” he added.Good Morning 💐Reg.RCK R.Chandra Kumar Advocate & Candt.for Treasurer.

Important judgments (20/10/2017)

Senior Citizens Act – Scheme of the Act does not contemplate for resolving property disputes between or among members of a family - 2017 (5) KHC 1 (DB)

Campus politics – Political activities like dharna, hunger strikes and other practices like sathyagrah have no place in academic institutions - 2017 (5) KHC 13 (DB)

Co-operative Society – S.4(5) of Payment of Gratuity Act which enables an employee to opt for a better terms of gratuity will prevail over Second Proviso to Rule 59(iii) of Co-operative Societies Rules - 2017 (5) KHC 15 (FB)

Family Courts — If one of the parties desires that the proceedings should be held in camera, Family Court has no option but to so direct - 2017 (5) KHC 48 (SC)

Rule 5 of Advocates’ Welfare Fund Rules is in conflict with Section 15 of Advocates’ Welfare Fund Act – Court reads down Rule 5 - 2017 (5) KHC 89

Family Courts Act — Once settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed - 2017 (5) KHC 48 (SC)

Answers given in answer to the leading questions put in the examination-in-chief are liable to be discarded - 2017 (5) KHC 75

There can be acquisition of part of building or house - 2017 (5) KHC 1 (SC) (SN)

Constitution of India – Custodial deaths - Supreme Court issues directions in the matter - 2017 (5) KHC 2 (SC) (SN)

IPC S.34 — Principle of vicarious liability enshrined by S.34 extends only to the extent of common intention shared by parties - 2017 (5) KHC 83 (DB)

Senior Citizens Act – A person’s obligation to maintain a senior citizen has nothing to do with prospect of his possessing senior citizen’s property or his succeeding to senior citizen’s estate - 2017 (5) KHC 1 (DB)

Campus politics – In academic institutions, politics or political activities cannot be permitted - 2017 (5) KHC 13 (DB)

Challenge in fixation of fair value of land – Can be raised in appeal before District Collector under Section 45A of Stamp Act - 2017 (5) KHC 24

Canara Bank — Service terminated with punishment of compulsory retirement in the year 1986 – Those retired prior to 29/09/1995 up to 01/01/1986 formed a single homogeneous group and Bank is not justified in extending the benefit of pension retrospectively from 29/09/1995 to 01/01/1986 - 2017 (5) KHC 26 (DB)

Evidence Act, 1872 S.32(1) – Mere suspicion or apprehension in the mind of maker shall not be placed under S.32(1) - 2017 (5) KHC 35 (DB)

CrPC S.164 — Statement recorded by Magistrate under S.164 can be used only either for corroboration or for contradiction and cannot be accepted as a substantive piece of evidence - 2017 (5) KHC 35 (DB)

Family Courts — In a transfer petition, no direction can be issued for video conferencing - 2017 (5) KHC 48 (SC)

NI Act S.138 – Mere admission of accused that he issued a signed blank cheque cannot mean that he has admitted to execution of cheque - 2017 (5) KHC 75

Any other Authority other than State Co-operative Election Commission holding election when S.28B of Co-operative Societies Act is in force is null and void - 2017 (5) KHC 79 (DB)

SC: Non- production of the original — Not material if it getting lost sufficiently explained

_*⭐SC: Non- production of the original — Not material if it getting lost sufficiently explained — Not lodging of police complaint of the loss not crucial — Reliance on certified copy permissible under Succession Act, 1925 — S.63— Evidence Act, 1872, Ss. 65(c) and 63 (1) (para15).*_

_Case:_
_*Leela Rajagopal Vs Kamala Menon Cocharan.*_

_Citation:_
_*(2014) 15 SCC 570: (2015) 4 SCC (Civ) 267.*_

_Bench Strength *-2*_
_Coram: *Ranjan Gogoi and, R.K. Agrawal JJ.*_
***************************
_*Shared by:*_
_*ADV. MAHESH VASWANI,*_
_*MUMBAI.*_
_*Mobile: 9821610888*_
***************************

LEGAL GROUNDS FOR CHALLENGING VALIDITY OF WILL

Undue Influence means exercise of excessive persistence, dominance of physical power mind, and will, or any burden applied due to authority or position, or relationship in relation to the power of the person submitting to it. It must be shown that will was the consequence of the implementation of the power and it is not sufficient to show that a person was in a situation or had the power to overcome the testator.

IN THE HIGH COURT OF BOMBAY
Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009

Decided On: 14.10.2016
Panna Surendra Mehta
Vs.
Purnima Latik Shah
Hon'ble Judges/Coram:
G.S. Patel, J.
Citation: 2017(2) ALLMR 278
A. PARTIES AND THE LITIGATION HISTORY

1. Jaswantbhai Natwarlal Jolia ("Jaswantbhai") died on 26th January 2004.1 He left a Will dated 10th August 2002.2 The Plaintiff, Panna S. Mehta ("Pannaben"), seeks Letters of Administration with Will Annexed to this Will. She is Jaswantbhai's sister-in-law, his wife Veenaben's sister. Panna is one of the beneficiaries of the Will. The major beneficiary is Panna's son, Ashitkumar Surendra Mehta, also known as Asit Mehta ("Asit"). He was also the sole executor named in the Will. Asit died on 18th May 2009.
2. Jaswantbhai's wife, Veena, died on 3rd March 2000, about four years before Jaswantbhai passed. Jaswantbhai and Veena had no children of their own. Jaswantbhai had three sisters, Ramaben Krishnalal Shah, Indiraben V Bankley and Trilochanaben T. Fozdar, and a brother Kanhaiyalal Dalal. Ramaben and Indiraben died before Jaswantbhai. He was, therefore, survived by Trilochanaben and Kanhaiyalal, his surviving siblings.

3. After Jaswantbhai died, Asit sought probate. He filed Testamentary Petition No. 243 of 2004. That petition was opposed by Trilochanaben and by three of Ramaben's children (Panna, Jitendra and Kishore). It was renumbered as Testamentary Suit No. 22 of 2004. Kanhaiyalal died on 10th May 2007 without leaving any heirs. Asit filed Notice of Motion No. 104 of 2007 to dismiss the caveats filed by Ramaben's children, contending that they had no caveatable interest, since, at the time when succession opened, Jaswantbhai's heirs in law were Trilochanaben and Kanhaiyalal, and they took before, in preference to, and to the exclusion of Ramaben's children. The Notice of Motion succeeded, and Ramaben's children's caveats were dismissed.

4. Asit died on 15th May 2009 and it was then held that his probate petition abated.4 On 30th September 2009, his mother, Pannaben, filed the present petition for Letters of Administration with Will Annexed seeking to prove Jaswantbhai's Will. On 25th November 2009, Trilochanaben filed Testamentary Petition No. 45 of 2010 for Letters of Administration to Jaswantbhai's estate. Pannaben filed a Caveat, and this was renumbered as Testamentary Suit No. 118 of 2010. On 1st November 2010, Trilochanaben died in Mumbai. She left a Will dated 11th February 2008. In this, she purported to make bequests of her share, if any, from Jaswantbhai's estate inter alia to her own children and to the children of her deceased sister, Ramaben.

5. On 1st April 2011, Trilochanaben's daughter, Purnima Latik Shah ("Purnima") filed a Caveat in the present Petition for Letters of Administration with Will Annexed brought by Pannaben. On 16th January 2013, Jitendra Krishnalal Shah and Jaisukh Krishnalal Shah, two of Ramaben's children, filed Caveats in the present Petition. Pannaben filed Notice of Motion No. 49 of 2013 for discharge of those Caveats. The Motion succeeded: the two Caveats by Jitendra and Jaisukh were discharged.5 Thus, Ramaben's children had twice opposed proof of Jaswantbhai's Will: first in the Probate Petition filed by Asit and again in the Petition for Letters of Administration with Will Annexed filed by Pannaben. Both oppositions failed. The surviving opposition to the present Petition is only, therefore, by Purnima.

B. THE WILL DATED 10TH AUGUST 2002

6. I turn now to the physical aspect of the Will dated 10th August 2002. This is a two-page document typed in English. Jaswantbhai's signatures appear on both pages. The attesting witnesses to this Will are Mr. Kirit Damania, an Advocate & Solicitor of this Court, and one Ms. Shree Kumary S. Mr. Damania was Jaswantbhai's friend and legal advisor. Ms. Shree Kumary S was his stenographer. In the document, the testator refers to himself as "Jaswantbhai"; he signs it as "Jaswantlal". This, as we shall see, is of significance because it is central to Purnima's opposition that he was never known by this name but only as "Jaswantlal". In the Will, Jaswantbhai sets out his properties and assets in some detail. He makes an absolute bequest in favour of his nephew, Ashitkumar (alias Asitkumar, alias Asit), and directs him to take charge of his entire estate. He also devises and bequeaths all his gold and other valuable ornaments and silver utensils in equal shares to 1) Devyani H. Kapadia (Pannaben's sister) and 2) Pannaben. The Will also speaks of a flat at Kirti Manor on S.V. Road, Santacruz (W). The words "with two garages" are handwritten. Then there is the signature of the testator on the first page.

C. THE CAVEAT & AFFIDAVIT IN SUPPORT

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7. In her Affidavit in Support of her Caveat, Purnima alleges that this Will is forged, fabricated and unnatural.6 She takes these grounds:

"(a) Purnima says that the name on the Will is 'Jaswantbhai Natwarlal Jolia' and not 'Jaswantlal Natwarlal Jolia', which was his 'real' name. She claims he was never known as Jaswantlbhai. The Defendant also relies on the death certificate,7 bank account details8 and certain share certificates9 to substantiate her claim.
(b) Purnima claims that Jaswantlal's signature was obtained on a blank paper; the Will had been drawn thereafter and that the signature itself is of Jaswantlal Jolia and not Jaswantbhai Jolia.
(c) Purnima alleges that Asit coerced Jaswantlal into signing the Will;
(d) Finally, Purnima sets up an affirmative case that Jaswantlal always treated Purnima as his own daughter and, therefore, he would have confided in her and brought to her notice his intention to create a Will.

8. Mrs. R.P. Sondurbaldota J framed and settled issues on 1st March 2012.10 On 1st September 2016, I framed an additional issue, parties having agreed. The final issues are set out below with my findings against each.

13. The burden of these two issues is on the Plaintiff. They need to be addressed together. The requirements of a valid unprivileged Will are well known. The testator must be an adult of sound mind.26 He must be shown to have made the Will of his own volition and without any importunity as might rob him of free agency.27 He must sign the Will intending it to be such a document. The execution of the Will must be attested by at least two witnesses. Both need not be present at the same time, but each must have seen the testator sign the Will.28

15. Mr. Damania was cross-examined, though very briefly.30 The very first question put to him was whether this was the first time Mr. Damania had said that Jaswantbhai and Jaswantlal were the same person. The question is itself peculiar;To this, Mr. Damania responded saying that for at least a year prior to his death, the testator could move about and had a good memory.32 Again, this was an answer that ought to have been tested further in cross-examination but was not. It remains uncontroverted.

17. The time frame of these questions is unhelpful. The Will is of 10th August 2002. Jaswantbhai lived for a good two years after, and died on 26th January 2004. The first of the questions about his health relates to a period of four years before 10th August 2002, i.e., about 1998; and that is, therefore, irrelevant. The second is vague when it speaks of 'last days', and in any case is fully met by Mr. Damania's answer, that at least for a year before his demise.

19. To demonstrate testamentary incapacity, Purnima had to show either that Jaswantlal was, on account of his condition of paralytic attacks, never, i.e., at no point in time, in a sufficiently lucid state of mind to make a testamentary instrument, or, alternatively, that on the day in question, 10th August 2002, he was so incapacitated that he could not possibly have made the Will.

20. Though Purnima called very many medical practitioners to give evidence, none of it establishes testamentary incapacity. The only relevant testimony is from DW4, Dr. P. Marfatia.

22. The other doctors contribute nothing to this, and I do not propose to spend further time labouring their evidence. DW2, Dr. Borse, spoke of Jaswantbhai's hospitalization in 1998. That is not denied.

23. There is nothing, I note, to controvert Mr. Damania's evidence of the actual execution and attestation of the Will. As to the second aspect, viz., testamentary capacity, there is no material to indicate that Jaswantbhai lacked it in the slightest on the day he made the Will. The inevitable result is that Issues Nos. 1 and 2 are proved.

26. Now, apart from the Pannaben's unequivocal refutation of the suggestion, what is important is the suggestion implicit in the question. If it is, therefore, shown that Jaswantlal and Jaswantbhai are the same person, then on this case placed by the Defendant herself the Testamentary Suit must succeed; for it admits the execution of the Will but only disputes the identity of the maker of it.

27. Later, Pannaben said that Jaswantlal N. Jolia was the family name or he was so known to the family, but in business circles he was known as Jaswantbhai. This is of some significance, because among Gujaratis, the word 'bhai' is an honorific and a frequently used term of respect. Yet again, there is no follow through on this answer and it remains untested.

28. What follows, however, is as baffling as it is crucial. The Plaintiff was confronted with an undated letter from the testator to the Branch Manager of the Bombay Mercantile Cooperative Bank. This was marked in evidence.

30. Quite apart from these two answers being utterly fatal to the Defendant's case on the question of a difference in identity, it must be noted that in the two printed documents, the letterhead shows the testator's name (and there is no doubt that it was the deceased who signed both) as "Jashwantbhai"; i.e., there is yet another variant in the name, one that is clearly as irrelevant as the difference between Jaswantlal and Jaswantbhai.

31. I turn next to the evidence of DW8, Mr. Chandanmal B. Chhajed, a Chartered Accountant with M/s. C.B. Chhajed & Co. He filed an Affidavit in lieu of Examination-in-Chief,45 and was briefly further examined in chief.46 He claimed to have a photocopy of Ex. D-1, the letter dated 12th March 2001 to him by the deceased. He referred to this letter in his examination-in-chief.

32. This is the last nail in the defence's coffin. The Defendant's own witness deposes that her case, of the two being different, and of the testator never being known as, or using, the name "Jaswantbhai" is untrue. There are other documents that the Defendant put into evidence, too, such as the share certificate at Ex. "D-4",47 admitted by the Defendant to be signed by the deceased and showing his name, written in Gujarati, as 'Jaswantbhai'.

33. The evidence of DW6, DW7 and DW9 carries the matter no further. None knew Jaswantbhai personally, but only in their professional capacity as bank managers at their respective banks. Their testimonies before the Commissioner do not assist the Defendant's case in any way.

34. There is absolutely no substance to the case that the testator was never known as Jaswantbhai but only ever as Jaswantlal. The evidence the Defendant herself led destroys her case as pleaded that the Will was fabricated.

35. On the question of forgery, there is no evidence whatever and, again, the Defendant's own pleadings, admissions in the cross-examination in questions, and on documents falsifies any such case.

36. As to the case on 'undue influence',48 there is no evidence at all. To invalidate a Will, undue influence must be established as a fact. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated.49 It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that Will was the result of the exercise of that power.50 Generalized allegations will not do: undue influence is to pleaded with specificity, particularity and precision.51

The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative."

43. The mere fact that some heirs are excluded is not per se evidence of a Will being unnatural; every Will disrupts the ordinary line of succession, and this is obvious.55 Were it otherwise, there would be no need for Wills. As against Purnima's lack of evidence, there is the evidence of Pannaben, elicited in her cross-examination, that her son, Asit, stayed with Jaswantbhai.56 She said she had some proof of this, but not complete proof. This is in sharp contrast to Purnima's case, of which she has no proof at all.

44. Issue No. 3A must, therefore, be answered in the negative.

I. CONCLUSION & ORDER

45. The testamentary jurisdiction is one of caution, not suspicion.57 Where nothing is shown against the reasonable nature of a Will, and there are no suspicious circumstances, the propounder's onus is discharged. On an overall assessment, it seems to me clear from the record that Jaswantbhai, himself childless, was close to Pannaben and her son, and treated her son (Asit) as his own. Issues such as undue influence, coercion, forgery or the Will being unnatural cast the burden not on the propounder, but on he or she who alleges these things.58

46. The suit succeeds, and is decreed with costs. The caveat is dismissed. The Registry will proceed to issue Letters of Administration with Will Annexed in respect of the Will dated 10th August 2002 of Jaswantbhai alias Jaswantlal Natwarlal Jolia.

47. The drawn up decree or order is dispensed with. The Registry is not to raise any objections or requisitions regarding service of citations. Given that the Petition is of 2009, pending for seven years already (and that a probate was first sought even earlier in 2004, i.e., 12 years ago), Letters of Administration with Will Annexed are to be issued no later than by 30th November 2016. For these reasons, and since, too, I have found not a shred of substance in the defence, the application for stay of this order is refused.

48. The registry will act on an authenticated copy of this order.

4Order dated 4th September 2009, following the decision of the Division Bench in Thrity Sam Shroff v Shiraz Byramji Anklesaria, 2007 (4) Mh. L.J. 56. The correctness of this decision has been doubted in the Division Bench decision in Haresh Chetan Thadani v Komal Suresh Chainani, Appeal No. 1 of 2015, decided on 27th January 2015, in appeal from an order I passed on 16th December 2014 allowing a Chamber Summons for conversion of a probate Petition into one for Letters of Administration with Will Annexed. The Division Bench in Thadani held that in Thrity Sam Shroff, the Court's attention had not been drawn to the decision of the Supreme Court in Shambu Prasad Agarwal & Ors. v Bhola Ram Agarwal, (2000) 9 SCC 714. 28Succession Act, Section 63. The Section allows the making of a mark or the signature on behalf of the testator by another and at his direction; each attesting witness must either see the testator sign, make or make another sign the Will or receive a personal acknowledgement of the signature, mark or other person's signature from the testator.

Wednesday 25 October 2017