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Tuesday, 10 October 2017

How to prove breach of injunction order?

How to prove breach of injunction order?

A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.
Citation : AIR 1998 All 228

IN THE HIGH COURT OF ALLAHABAD
C.M.W.P. No. 682 of 1990
Decided On: 06.02.1998
Gyan Chand Jain and others
Vs.
XIIIth Addl. District and Sessions Judge, Agra and others
Hon'ble Judges/Coram:
G.P. Mathur, J.

1. This petition under Article 226 of the Constitution of India has been filed for quashing the order dated 11.12.1989 of Munsif, Firozabad in Misc. Case No. 67 of 1988 and also the appellate order dated 22.1.1990 of XIIIth Additional District Judge. Agra in Misc. Appeal No. 253 of 1989. With the consent of the parties, the writ petition is disposed of finally at the admission stage.
2. Ram Babu Jain (original respondent No. 3 in the writ petition) filed O.S. No. 227 of 1985 against the petitioners Gyan Chand Jain, Umesh Chand Jain and Padam Chand Jain for injunction restraining the respondents from interfering in their possession in any manner over the ground floor of house No. 35 or causing any damage or throwing any dirty article therein. The case of the plaintiff, in brief, is that the petitioners (defendants) were the owner-landlords of house No. 35 and he was a tenant thereof in the ground floor. The plaintiff had been paying rent to the defendants regularly but they wanted to evict him forcibly and in an unlawful manner and with that end in view, they were causing damage to the property and throwing dirty articles in the tenanted portion. The plaintiff moved an injunction application 7C on which the learned Munsif passed ex parte injunction order on 4.11.1985 directing the defendants to maintain status quo on the spot, not to demolish any portion of the property and not to interfere in the plaintiffs possession except in accordance with law. While passing this order, the learned Munsif fixed 3.12.1985 for appearance of the defendants and the injunction order was directed to be operative till that date. It appears that this injunction order was extended on 3.12.1985. The plaintiff moved an application sometime in the year 1987 under Order XXXIX, Rule 2A, C.P.C. alleging that the defendants had demolished a portion of the roof and the drainage pipe and thereby committed breach of the injunction order. This application was registered as Misc. Case No. 67 of 1987. The plaintiff moved two other similar applications under Order XXXIX, Rule 2A. C.P.C. alleging that the defendants had committed breach of the Injunction order and they were registered as Misc. Case No. 68 of 1987 and Misc. Case No. 6 of 1989. After recording the evidence adduced by the parties, the learned Munsif decreed the suit and passed a decree for injunction against the defendants. He also held the defendants guilty under Order XXXIX, Rule 2A, C.P.C. in Misc. Case No. 67 of 1987 and directed that each of the defendants be detained in civil prison for a period of one month. Similarly in Misc. Case No. 68 of 1987, each of the defendants were ordered to be detained in civil prison for a period of two months and in Misc. Case No. 6 of 1989 each of the defendants were directed to be detained for a period of three months. Aggrieved by the aforesaid order dated 11.12.19891 of the learned Munsif, the defendants filed a regular First Appeal under Section 96, C.P.C. and three Misc. Appeals under Order XLII1. Rule 1 (r), C.P.C. The Misc. Appeal against the order of learned Munsif passed in Misc. Case No. 67 of 1987 which was registered as Misc. Civil Appeal No. 253 of 1989 was dismissed on 22.1.1990 which is the subject-matter of challenge in the present writ petition. The other two Misc. Appeals which were preferred against the order of learned Munsif passed in Misc. Case No. 68 of 1987 and Misc. Case No. 6 of 1989 were allowed and the order directing the defendants to be detained in civil prison for a period of two months and three months respectively was set aside.
3. 1 have heard Sri G. R, Jain for the petitioners, Sri S. Harkauli for the contesting-respondents and have examined the record.
4. Sri Jain, learned counsel, for the petitioners has submitted that the procedure adopted by the learned Munsif in deciding the suit as well as the Misc. cases under Order XXXIX, Rule 2A, C.P.C. by one composite order is illegal and therefore, the order directing the defendants to be detained in the civil prison is liable to be set aside. The judgment of the learned Munsif dated 11.12.1989 shows that he decided the main Suit being O.S. No. 227 of 1985 as well as three Misc. cases namely 67/87. 68/87 and 6 of 1989 by one composite order. The controversies raised in the Suit and that in the Misc. cases registered on the basis of the applications moved by the plaintiff under Order XXXIX. Rule 2A. C.P.C. is entirely different. The question for determination in the Suit was as to whether the plaintiff Ram Babu Jain was entitled to a decree for injunction in his favour on the ground that he was a tenant of ground floor of house No. 35, while the question for determination in Misc. Case No. 67 of 1987 was whether the defendants had committed disobedience of an injunction order granted under Order XXXIX, Rule (1) or (2). C.P.C. or breach of any of the terms on which the injunction was granted or the order was made. The controversy raised in the two proceedings though with regard to the same property was not identical. According to the plaintiff, the ex parte injunction order dated 4.11.1985 was to remain in operation till 19.12.1985 as the same had been extended upto the said date by the order dated 3.12.1985 but the defendants broke a portion of the roof and the drainage pipe on 14.12.1985. It may be noticed that the defendants are themselves the owners of the property and were residing on the first floor. The question to be considered in this case was whether the defendants had knowledge of the ex parts injunction order and whether they deliberately committed disobedience of the injunction order. The plaintiff did not lead any evidence in Misc. Case No. 67 of 1987. The judgment of the lower appellate court shows that some application was moved wherein a prayer was made that all the three Misc. cases should be heard along with the main suit and this application was allowed on 5.1.1988. In my opinion, the mere fact that an order was passed to hear the Misc. cases along with the main suit would not mean that the Misc. Cases should be decided on the basis of the evidence which had been recorded in the main Suit and by the same order. A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.
5. For the reasons mentioned above, the writ petition is allowed and the orders dated 11.12.1989 of the learned Munsif passed in Misc. Case No. 67 of 1987 and also the Order dated 22.1.1990 of XIIIth Additional District Judge in Misc. Appeal No. 253 of 1989 are quashed. Parties shall bear their own costs.

Agreement to sell - Specific performance - Cuttings and interpolations

IMPORTANT DECISIONS(19.09.2017)

Agreement to sell - Specific performance - Cuttings and interpolations - Initialed by vendor - Cuttings and interpolations thus does not make the agreement doubtful. 2014(4) Civil Court Cases 499 (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.)  

Criminal and civil proceedings - Serious allegations, if, involve factum of recovery of money, it cannot be concluded that complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions - Order quashing criminal proceedings set aside. (2015(1) Criminal Court Cases 637 (S.C.)

Delay of 12 hours in sending FIR to Illaqa Magistrate - Delay not explained - Possibility of ante-timing the same cannot be ruled out. (2010(1) Criminal Court Cases 873 (P&H) (DB)  

Dishonour of cheque - Notice - It is not the requirement of law that date of service of statutory notice is to be disclosed in complaint at the stage of summoning. (2016(1) Criminal Court Cases 851 (All.)  

Domestic violence - Committed before commencement of Act which continued even after passing of the Act - Wife is entitled for protection orders and residence orders u/ss 18 & 19 of the Act along with maintenance allowance. (2014(1) Criminal Court Cases 160 (S.C.) 

Economic offences - Serious charges of forgery - Settlement with bank - Proceedings cannot be quashed merely on the ground that accused has settled the amount with bank. (2016(1) Criminal Court Cases 154 (S.C.) 

Eye witnesses - Statement of eye witnesses recorded after three days of occurrence - No explanation - Eye witnesses not wholly reliable witnesses in view of their unexplained silence and delayed statement to police. (2016(2) Apex Court Judgments 347 (S.C.) 

Food adulteration - Right u/s 13(2) of Prevention of Food Adulteration Act exercised by one accused - CFL found sample deteriorated and not in a condition fit for analysis - Benefit of CFL report enures to the benefit of all accused - Proceedings quashed. (2016(2) Apex Court Judgments 215 (S.C.) 

Maintenance u/s 125 Cr.P.C. - Decree dissolving marriage on ground of adultery - Not entitled to maintenance. (2016(1) Criminal Court Cases 094 (Madras) 

Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?

Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?

The   trial   Court   took   into   consideration   the
enhancement in the share of the plaintiff from 1/15th  to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, oneof the cosharers in the suit properties.   The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt.   Kamal   was   insane   on   the   ground   of   lack   of
pleadings and evidence on record. Smt. Kamal was residing
with   defendant   No.   7Avinash,   who   claims   the   share   of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered.  With
the   assistance   of   the   learned   counsels   appearing   for   the
parties,  I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record.  The Will has been proved
and there is no perversity in recording such finding.   As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th   as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004
Pandurang Sitaram Pande,
V
Avinash Ramkrishna Pande,

CORAM: R. K. DESHPANDE, J.
Dated:   04.08.2016
Citation:2016(6) ALLMR 273

1] One Sitaram @ Balabhau Pande was the owner
and in possession of the suit property.  He died in the year
1978 and was survived by 5 sons, namely, (1) Ramkrushna,
(2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and
two   daughters,   namely,   (1)   Smt.   Jankibai   and   (2)   Smt.
Tarabai.   Smt. Dwarkabai, wife of Sitaram, died in the year
1943 and was thus a predeceased.    The son, Pandurang
Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on
08.11.2001 for partition and separate possession of his 1/5th
share in the suit properties.   He also claimed a decree of
Rs.30,950/ with future interest at the rate of 18% per annum
by way of mesne profit and also claimed an enquiry into the
mesne profit under Order XX, Rule 12 of Civil Procedure
Code.     The suit was filed on the basis of cause of action
shown   in   the   plaint   as   06.10.2001   when   the   plaintiff   by
issuing notice to the defendant no.7 called upon him to effect
partition of the suit property.  
2] The brothers Haribhau and Laxman were joined
as defendant Nos. 1 and 2.   The third brother Bharat died
before filing of suit and therefore, his widow Smt.Kamal was
joined as defendant No. 3.  Two sisters namely Smt.Jankibai
and Smt.Tarabai died in the year 1985 and 1987 respectively
i.e. before filing of the suit, but their legal heirs were not
joined   as   party   defendants   in   the   suit.   Since   the   brother
Ramkrushna died in the year 1990, his two surviving sons,
namely Avinash and Pramod were joined as defendant Nos.
7 and 8 respectively,   whereas the widow and daughter of
one Subhash (dead), the another son of Ramkrushna, were
joined as defendant Nos. 5 and 6 respectively.   Smt. Kamal
died on 11.02.2002 i.e. during the pendency of the suit and
the   defendant   No.7Avinash,  the   son   of  Ramkrushna,  the
eldest   brother   of   the   plaintiff,   claimed   himself   to   be   the
legatee in respect the  share devolved upon Smt.Kamal, on
the   basis   of   will   executed   by   her   on   02.11.1997.   The
defendants opposed the claim of the plaintiff.
3] The trial Court in Regular Civil Suit No. 81 of
2001, decided on 31.10.2002 recorded the finding that the
suit properties were the joint family properties and the plaintiff
had established his claim of 4/15th share in the suit property
against his claim for 1/5th   share. The trial Court rejected the
claim of defendant No. 7Avinash for addition of 1/5th   share
on the basis of Will dated 02.11.1997, said to have been
executed by Smt. Kamal, the defendant No. 3. The trial Court
also rejected the contention of the defendants that the suit
was liable to be dismissed as barred by law of limitation and
for non joinder of necessary parties, namely the legal heirs of
two daughters – Smt.Jankibai and Smt.Tarabai, by accepting
the   contention   of   the   plaintiff   that   both   the   sisters   had
executed relinquishment deed dated 06.01.1981 in favour of
all the brothers in respect of their shares in the properties.
4] Regular Civil Appeal No. 294 of 2002 preferred
by the original defendant Nos. 7, 8 and 4 was allowed by the
appellate Court on 30.08.2004 and the decree for partition
and separate possession passed by the trial Court was set
aside and the suit was dismissed.  The lower appellate Court
records the finding that Will executed by respondent No.3
Kamal in favour of defendant No.7Avinash has been proved;
the suit is liable to be dismissed for non joinder of legal heirs
of deceased Smt. Jankibai and Smt.Tarabai in the suit; the
suit was barred by the law of limitation and the trial Court had
no pecuniary jurisdiction to entertain the suit.  Hence,  as the
original plaintiff is died and his legal heirs along with original
defendant no.2 through his legal heirs are before this Court in
this second appeal.
5] The appeal was admitted on 16.12.2008 and this
Court framed the substantial question of law as under;
"Whether the suit (wrongly typed as appeal) of the
plaintiff/   appellant   could   have   been   dismissed   for
want of legal heirs of two sisters on record?"
6] The appellants filed Civil Application No. 5737 of
2008 in the second appeal for grant of permission to join the
legal representatives of two sisters namely Smt.Jankibai and
Smt. Tarabai on the record of the plaint as defendants and in
this appeal as respondents.  This Court passed an order on
the said application on 10.01.2013, as under;
"The notices of this Civil Application were issued.  The
persons whose names are stated in the application are
served.   Shri Thakkar, the learned counsel has filed
power for the proposed respondent Nos. 8 to 13.
The names of respondent Nos. 8 to 13 are, therefore,
permitted to be brought on record.
Necessary amendment to be carried out within a period
of 2 weeks .
The stand taken by the added respondents in their reply
shall be considered by the Court at the time of hearing.
Hence, the reply filed by the added respondents shall
be taken on record.
C.A. No. 5737/08 stands disposed of".
7] Heard   Shri   C.A.   Joshi,   the   learned   counsel
appearing   for   the   appellants   and   Shri   Anil   Mardikar,   the
learned   senior   counsel   assisted   by   Shri   Amit   Joshi,
Advocate,   for   defendant   Nos.   7   and   8,   who   are   the
respondent   nos.   1   and   2   in   this   appeal   (the   sons   of
Ramkrushna, the eldest brother of the plaintiff)
8] Shri   Joshi   appearing   for   the   appellants   has
urged that the relinquishment of claim of the share by two
sisters – Smt. Jankibai and Smt. Taraibai on 06.01.1981 has
been established and therefore, it was not necessary for the
plaintiff to have joined the sisters as party defendants in the
suit.  He submits that even if it is accepted that two sisters
were necessary parties to the suit in question,   the defect
was   curable   and   this   Court   having   allowed   the   Civil
Application No. 5757/08 on 10.01.2013, it stands removed
and the L.Rs of two sisters have filed their reply in this Court
stating in clear terms that they do not want to claim any share
in the suit properties.  He further submits that the Will dated
02.11.1997   at   Exh.   117   said   to   have   been   executed   by
Smt.Kamal, the defendant no.3, has not been proved and
hence, the share of the plaintiff in the suit property shall
increase from 1/5th   to 4/15th, which was rightly decreed by
the trial Court.  Shri Joshi, therefore, submits that the decree
passed by the trial Court be restored by setting aside the
decision of the lower appellate Court.
9] Per contra, Shri Mardikar, for respondent Nos. 1
and 2, has urged that non joinder of two sisters in a suit for
partition and separate possession becomes fatal for grant of
reliefs claimed in the suit and to permit the plaintiffs to join
the   necessary   parties   to   the   suit   at   the   stage   of   second
appeal would create a bar of limitation  as the cause of action
for filing the suit as shown in the plaint was of 06.10.2001
and   the   application   for   joining   the   necessary   parties   was
moved before this Court  on 03.08.2008, which was allowed
on 10.01.2013.   He submits that the limitation is governed by
Article 113 of the Limitation Act, which prescribes the period
of 3 years from the date of cause of action.  He relied upon
the   decision   of   the   Apex   Court   in   the   case   of
Kanakarathanammal     vrs.     V.S.Loganatha   Mudaliar   and
another, reported in AIR 1965 SC 271.    Shri Mardikar also
relied upon the decision of the Apex Court in the case of
Union of India  vrs. Ibrahim Uddin and another,  reported in
(2012) 8 SCC 148  for the proposition that the plaintiff having
failed to produce the document of relinquishment deed dated
06.01.1981, adverse inference was required to be drawn  and
for it, the adverse inference cannot be drawn against the
defendant no.7 on the ground that he was in possession of
the relinquishment deed and has failed to produced it.
10] The   lower   appellate   Court   has   recorded   the
finding   that   the   suit   properties   were   not   the   ancestral
properties of Sitaram Jayram Pande, the father of the plaintiff
and defendants,  but were gifted to him by his fatherinlaw.
Sitaram Pande died intestate and, therefore, the properties
devolved upon the heirs of Sitaram Pande in accordance with
the   general   rules   of   succession   in   the   case   of   mens,   as
specified under Section 8 of the Hindu Succession Act, by
5 sons and 2 daughters – they being the ClassI heirs.
11] Normally, each of the heirs would be entitled to
1/7th share in the suit properties.  The plaintiff in the suit in
question, however, claimed 1/5th   share in the suit properties
by taking into consideration the fact that Smt. Jankibai and
Smt. Tarabai, two daughters of Sitaram,   have relinquished
their shares in the suit properties.  The relinquishment deed
dated   06.01.1981   executed  by   two  sisters   of  the   plaintiff,
namely     Smt.   Jankibai   and   Smt.   Tarabai,   has   not   been
placed on record.   I need not dwell upon this aspect any
more except to hold that two sisters were necessary parties
to the suit in question and they cannot be called as 'proper
parties'.   Let us now see whether non joinder of necessary
parties, in the facts and circumstances of this case, becomes
fatal.
12] No doubt, that the issue regarding non joinder of
necessary parties was raised in the trial Court and it was also
framed.   The trial Court records the finding that since two
sisters have relinquished  their  share,   the suit  cannot  be
dismissed for non joinder of necessary parties.   The lower
appellate Court for the first time dismisses the suit on the
ground of non joinder of necessary parties. As pointed out
earlier,     the   appellant/plaintiff,   realizing   the   mistake,   filed
Civil Application No. 5737 of 2008 in this second appeal for
grant of permission to join the legal representatives of two
sisters,   was   not   opposed   and   allowed   by   this   Court   on
10.01.2013. Accordingly, their names are brought on record
and also in the present second appeal.
13] Order I, Rule 10(2) of the Civil Procedure Code
being relevant, is reproduced below;
"O.I   R   10(2)  –   The   Court   may   at   any   stage   of   the
proceedings,   either   upon   or   without   the   application   of
either party, and on such terms as may be appear to the
Court   to   be   just   order   that   the   name   of   any   party
improperly   joined,   whether  as   plaintiff   or  defendant   be
struck out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant, or
whose presence before the Court may be necessary in
order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in
the suit, be added."
The aforesaid provision confers a discretion upon the Court
to permit the name of any person who ought to have been
joined,  whether as plaintiff or defendant,  or whose presence
before the Court may be necessary in order to enable the
Court to effectively and completely to adjudicate upon and
settle all the questions involved in the suit, be added at any
stage of proceedings.  The second appeal being continuation
of the suit,   this Court is competent to exercise discretion
even at the second appellate stage to permit the joinder of
necessary   parties   to   the   suit.     Once   such   permission   is
granted   and   the   parties   are   joined   as   defendants/
respondents in the proceedings,   the order relates back to
the date of filing of the suit and the defect stands cured.
14] All   the   parties   added,   who   are   the   legal
representatives of the two sisters of the plaintiff namely  Smt.
Jankibai and Smt. Tarabai, have filed their reply on oath to
the application of the plaintiff for grant of permission to join
them as party defendants/respondents in the proceedings.  In
categorical terms they have stated in their reply that they do
not want to claim any share or interest in the suit properties
and their predecessor in title had relinquished their shares in
favour of the brothers.  There is no contest involved which is
required   to   be   adjudicated   by   this   Court   upon   granting
permission to join certain persons as defendants/respondents
in the proceedings.  The plaintiff would, therefore, be entitled
to   1/5th    share   in   the   suit   property   and   the   suit   cannot,
therefore, be dismissed in the facts and circumstances of this
case   for   non   joinder   of   necessary   parties.   The   lower
appellate Court ought to have granted an opportunity to the
plaintiff to add the necessary parties to the proceedings and
it is only upon the failure of the plaintiff to comply with such
direction as contemplated by Order 1, Rule 13 of C.P.C., the
suit   could   not   have   been   dismissed   on   the   ground   of
nonjoinder of necessary parties.  The substantial question of
law is, therefore, answered accordingly.
15] Shri Anil Mardikar appearing for defendant No.7
has relied upon decision of the Apex Court reported in AIR
1965 SC 271 (cited supra) to urge that the Apex Court had
refused to grant permission to add necessary parties to the
suit in the appeal  pending before the Apex Court on the
ground that the appellant therein was not vigilant and that the
bar of limitation would also operate for permitting the joinder
of necessary parties in the appeal pending before the Apex
Court.  In my opinion, the decision is clearly distinguishable.
It was a suit filed for recovery of possession by the appellant
claiming exclusive title over the entire suit property.   It was
not a suit for partition and separate possession.  The Apex
Court found that such claim was not tenable and the other
brothers were also entitled to succeed to the estate.  In the
present case, the plaintiff claims only 1/5th   share in the suit
properties and other cosharers likely to oppose the claim
are joined as parties to the suit.   The Apex Court has also
held that the trial Court itself dismissed the suit on the ground
of nonjoinder of necessary parties,   the appellant did not
take any steps to join the necessary parties either in the
appeal before the High Court or even in the appeal before
the Apex Court till the hearing was concluded. In the present
case, immediately after the decision of lower appellate Court,
the plaintiff  moved application which has been allowed. The
Apex Court considered the bar of limitation in a situation
which is not available in the present case.
16] So   far   as   applicability   of   law   of   limitation   is
concerned,  Articles 58, 65, 110 and 113 of the Limitation Act
were brought to my notice.   In some decisions of this Court,
it was held that Article 65 would apply, whereas in some
decisions, it was held that Article 113 would apply. Article 58
deals with the suits filed to obtain any declaration and for that
3 years limitation is prescribed from the date when the right
to sue first accrues.  Article 113 deals with the suit for which
no   period   of   limitation   is   prescribed   elsewhere   in   the
schedule and the period of limitation is of 3 years which
begins from the date when the right to sue accrues.  Article
65 deals with the possession of immovable property or any
interest therein based on title and it prescribes the period of
limitation of 12 years from the date  when the possession of
the defendant becomes adverse to the plaintiff.  Article 110
deals with the suit by a person excluded from a joint family
property to enforce a right of share therein and the period of
limitation prescribed is of 12 years from the date when the
section becomes known to the plaintiff.
17] In the decision of the Apex Court in the case of
Md. Mohammad Ali vrs. Jagdish Kalita and others,  reported
in  (2004) 1 SCC 271,   the Court was concerned with the
applicability of Article 65 of the Limitation Act and it was held
that the plaintiff will succeed if he proves his title over the suit
property and it would be for the defendant to plead and prove
the plea of adverse possession to defeat the claim of the
plaintiff. This decision has been followed by the Apex Court in
the case of Mohammadbhai Kasambhai Sheikh and ors  vrs.
Abdulla Kasambhai Sheikh,  reported in  (2004) 13 SCC 385,
wherein it is held that unless the defendant raises defence of
adverse possession to  claim for a  share by a heir to be
ancestral property,  he cannot also raise an issue relating to
limitation of the plaintiff's claim.   The Court held that in the
absence of such plea of adverse possession being raised in
the written statement, the plea of limitation was not available.
Both these decisions are applicable to the facts of this case
and in the absence of any plea of adverse possession by any
of the parties, the suit cannot be dismissed as barred by
limitation.
18] Article 110 of the Limitation Act relied upon by
Shri Mardikar deals with the suit by a person excluded from a
joint family property to enforce a right to share therein. In the
present case,  the shares are devolved upon the parties to
the   suit   in   accordance   with   Section   8   of   the   Hindu
Succession Act and it is not a suit where the partition has
already taken place and the plaintiff is excluded from the joint
family   property.     It   is   also   not   a   suit   for   enforcement   of
partition   and   separate   possession,   as   contemplated   by
Section 6 of the Hindu Succession Act, though it is styled as
such. The decision has no application to the facts of this
case.
19] The   trial   Court   took   into   consideration   the
enhancement in the share of the plaintiff from 1/15th  to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, one
of the cosharers in the suit properties.   The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt.   Kamal   was   insane   on   the   ground   of   lack   of
pleadings and evidence on record. Smt. Kamal was residing
with   defendant   No.   7Avinash,   who   claims   the   share   of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered.  With
the   assistance   of   the   learned   counsels   appearing   for   the
parties,  I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record.  The Will has been proved
and there is no perversity in recording such finding.   As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th   as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
20] The Second Appeal is, therefore, partly allowed.
The judgment and order dated 30.08.2004 passed in Regular
Civil   Appeal   No.294   of   2002   is   hereby   quashed   and   set
aside. The decree passed by the trial Court in Regular Civil
Suit No. 81 of 2002 on 31.10.2002 is modified as under;
I] The plaintiff is entitled to partition and separate
possession of 1/5th share in the suit property i.e.
(1) field Gat No. 1277, 6H 52R, (2) field Gat No.
1257,   4H   27R   at   village   Shirpur,   (3)   House
bearing Gram Panchayat No. 895, admeasuring
100 x 100 sq.feet and (4) space "Chakki  Chi
Jaga" with flour mill.
II] The defendant No.1 is entitled to 1/5th share, the
defendant No. 2 is entitled to 1/5th  share,   the
defendant no. 4 is entitled to 1/20th   share, the
defendant   nos.  5  and  6  are   jointly  entitled  to
1/20th   share, the defendant No. 7 is entitled to
1/4th share and the defendant no.8 is entitled to
1/20th  share   from   the   whole   suit   property
described above.
III] The plaintiff is entitled to an enquiry into mense
profit against the defendant No.7 as per Order
20, Rule 12 of C.P.C from the date of suit i.e.
08.11.2001   until   the   actual   partition   and
possession of the suit property.
IV] The defendant Nos. 4, 7 and 8 do bear their own
cost and proportionate cost of the plaintiff.
V] Defendant Nos. 1, 2, 5 and 6 do bear their own
cost.
VII] A precept be sent to the Collector, Washim to
effect partition and separate possession of the
suit   field   Gat   Nos.   1277,   6H   52R   and   1257,
4H 27R situated at village Shirpur for 1/5th share
to the plaintiff only.Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?

The   trial   Court   took   into   consideration   the
enhancement in the share of the plaintiff from 1/15th  to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, oneof the cosharers in the suit properties.   The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt.   Kamal   was   insane   on   the   ground   of   lack   of
pleadings and evidence on record. Smt. Kamal was residing
with   defendant   No.   7Avinash,   who   claims   the   share   of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered.  With
the   assistance   of   the   learned   counsels   appearing   for   the
parties,  I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record.  The Will has been proved
and there is no perversity in recording such finding.   As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th   as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004
Pandurang Sitaram Pande,
V
Avinash Ramkrishna Pande,

CORAM: R. K. DESHPANDE, J.
Dated:   04.08.2016
Citation:2016(6) ALLMR 273

1] One Sitaram @ Balabhau Pande was the owner
and in possession of the suit property.  He died in the year
1978 and was survived by 5 sons, namely, (1) Ramkrushna,
(2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and
two   daughters,   namely,   (1)   Smt.   Jankibai   and   (2)   Smt.
Tarabai.   Smt. Dwarkabai, wife of Sitaram, died in the year
1943 and was thus a predeceased.    The son, Pandurang
Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on
08.11.2001 for partition and separate possession of his 1/5th
share in the suit properties.   He also claimed a decree of
Rs.30,950/ with future interest at the rate of 18% per annum
by way of mesne profit and also claimed an enquiry into the
mesne profit under Order XX, Rule 12 of Civil Procedure
Code.     The suit was filed on the basis of cause of action
shown   in   the   plaint   as   06.10.2001   when   the   plaintiff   by
issuing notice to the defendant no.7 called upon him to effect
partition of the suit property.  
2] The brothers Haribhau and Laxman were joined
as defendant Nos. 1 and 2.   The third brother Bharat died
before filing of suit and therefore, his widow Smt.Kamal was
joined as defendant No. 3.  Two sisters namely Smt.Jankibai
and Smt.Tarabai died in the year 1985 and 1987 respectively
i.e. before filing of the suit, but their legal heirs were not
joined   as   party   defendants   in   the   suit.   Since   the   brother
Ramkrushna died in the year 1990, his two surviving sons,
namely Avinash and Pramod were joined as defendant Nos.
7 and 8 respectively,   whereas the widow and daughter of
one Subhash (dead), the another son of Ramkrushna, were
joined as defendant Nos. 5 and 6 respectively.   Smt. Kamal
died on 11.02.2002 i.e. during the pendency of the suit and
the   defendant   No.7Avinash,  the   son   of  Ramkrushna,  the
eldest   brother   of   the   plaintiff,   claimed   himself   to   be   the
legatee in respect the  share devolved upon Smt.Kamal, on
the   basis   of   will   executed   by   her   on   02.11.1997.   The
defendants opposed the claim of the plaintiff.
3] The trial Court in Regular Civil Suit No. 81 of
2001, decided on 31.10.2002 recorded the finding that the
suit properties were the joint family properties and the plaintiff
had established his claim of 4/15th share in the suit property
against his claim for 1/5th   share. The trial Court rejected the
claim of defendant No. 7Avinash for addition of 1/5th   share
on the basis of Will dated 02.11.1997, said to have been
executed by Smt. Kamal, the defendant No. 3. The trial Court
also rejected the contention of the defendants that the suit
was liable to be dismissed as barred by law of limitation and
for non joinder of necessary parties, namely the legal heirs of
two daughters – Smt.Jankibai and Smt.Tarabai, by accepting
the   contention   of   the   plaintiff   that   both   the   sisters   had
executed relinquishment deed dated 06.01.1981 in favour of
all the brothers in respect of their shares in the properties.
4] Regular Civil Appeal No. 294 of 2002 preferred
by the original defendant Nos. 7, 8 and 4 was allowed by the
appellate Court on 30.08.2004 and the decree for partition
and separate possession passed by the trial Court was set
aside and the suit was dismissed.  The lower appellate Court
records the finding that Will executed by respondent No.3
Kamal in favour of defendant No.7Avinash has been proved;
the suit is liable to be dismissed for non joinder of legal heirs
of deceased Smt. Jankibai and Smt.Tarabai in the suit; the
suit was barred by the law of limitation and the trial Court had
no pecuniary jurisdiction to entertain the suit.  Hence,  as the
original plaintiff is died and his legal heirs along with original
defendant no.2 through his legal heirs are before this Court in
this second appeal.
5] The appeal was admitted on 16.12.2008 and this
Court framed the substantial question of law as under;
"Whether the suit (wrongly typed as appeal) of the
plaintiff/   appellant   could   have   been   dismissed   for
want of legal heirs of two sisters on record?"
6] The appellants filed Civil Application No. 5737 of
2008 in the second appeal for grant of permission to join the
legal representatives of two sisters namely Smt.Jankibai and
Smt. Tarabai on the record of the plaint as defendants and in
this appeal as respondents.  This Court passed an order on
the said application on 10.01.2013, as under;
"The notices of this Civil Application were issued.  The
persons whose names are stated in the application are
served.   Shri Thakkar, the learned counsel has filed
power for the proposed respondent Nos. 8 to 13.
The names of respondent Nos. 8 to 13 are, therefore,
permitted to be brought on record.
Necessary amendment to be carried out within a period
of 2 weeks .
The stand taken by the added respondents in their reply
shall be considered by the Court at the time of hearing.
Hence, the reply filed by the added respondents shall
be taken on record.
C.A. No. 5737/08 stands disposed of".
7] Heard   Shri   C.A.   Joshi,   the   learned   counsel
appearing   for   the   appellants   and   Shri   Anil   Mardikar,   the
learned   senior   counsel   assisted   by   Shri   Amit   Joshi,
Advocate,   for   defendant   Nos.   7   and   8,   who   are   the
respondent   nos.   1   and   2   in   this   appeal   (the   sons   of
Ramkrushna, the eldest brother of the plaintiff)
8] Shri   Joshi   appearing   for   the   appellants   has
urged that the relinquishment of claim of the share by two
sisters – Smt. Jankibai and Smt. Taraibai on 06.01.1981 has
been established and therefore, it was not necessary for the
plaintiff to have joined the sisters as party defendants in the
suit.  He submits that even if it is accepted that two sisters
were necessary parties to the suit in question,   the defect
was   curable   and   this   Court   having   allowed   the   Civil
Application No. 5757/08 on 10.01.2013, it stands removed
and the L.Rs of two sisters have filed their reply in this Court
stating in clear terms that they do not want to claim any share
in the suit properties.  He further submits that the Will dated
02.11.1997   at   Exh.   117   said   to   have   been   executed   by
Smt.Kamal, the defendant no.3, has not been proved and
hence, the share of the plaintiff in the suit property shall
increase from 1/5th   to 4/15th, which was rightly decreed by
the trial Court.  Shri Joshi, therefore, submits that the decree
passed by the trial Court be restored by setting aside the
decision of the lower appellate Court.
9] Per contra, Shri Mardikar, for respondent Nos. 1
and 2, has urged that non joinder of two sisters in a suit for
partition and separate possession becomes fatal for grant of
reliefs claimed in the suit and to permit the plaintiffs to join
the   necessary   parties   to   the   suit   at   the   stage   of   second
appeal would create a bar of limitation  as the cause of action
for filing the suit as shown in the plaint was of 06.10.2001
and   the   application   for   joining   the   necessary   parties   was
moved before this Court  on 03.08.2008, which was allowed
on 10.01.2013.   He submits that the limitation is governed by
Article 113 of the Limitation Act, which prescribes the period
of 3 years from the date of cause of action.  He relied upon
the   decision   of   the   Apex   Court   in   the   case   of
Kanakarathanammal     vrs.     V.S.Loganatha   Mudaliar   and
another, reported in AIR 1965 SC 271.    Shri Mardikar also
relied upon the decision of the Apex Court in the case of
Union of India  vrs. Ibrahim Uddin and another,  reported in
(2012) 8 SCC 148  for the proposition that the plaintiff having
failed to produce the document of relinquishment deed dated
06.01.1981, adverse inference was required to be drawn  and
for it, the adverse inference cannot be drawn against the
defendant no.7 on the ground that he was in possession of
the relinquishment deed and has failed to produced it.
10] The   lower   appellate   Court   has   recorded   the
finding   that   the   suit   properties   were   not   the   ancestral
properties of Sitaram Jayram Pande, the father of the plaintiff
and defendants,  but were gifted to him by his fatherinlaw.
Sitaram Pande died intestate and, therefore, the properties
devolved upon the heirs of Sitaram Pande in accordance with
the   general   rules   of   succession   in   the   case   of   mens,   as
specified under Section 8 of the Hindu Succession Act, by
5 sons and 2 daughters – they being the ClassI heirs.
11] Normally, each of the heirs would be entitled to
1/7th share in the suit properties.  The plaintiff in the suit in
question, however, claimed 1/5th   share in the suit properties
by taking into consideration the fact that Smt. Jankibai and
Smt. Tarabai, two daughters of Sitaram,   have relinquished
their shares in the suit properties.  The relinquishment deed
dated   06.01.1981   executed  by   two  sisters   of  the   plaintiff,
namely     Smt.   Jankibai   and   Smt.   Tarabai,   has   not   been
placed on record.   I need not dwell upon this aspect any
more except to hold that two sisters were necessary parties
to the suit in question and they cannot be called as 'proper
parties'.   Let us now see whether non joinder of necessary
parties, in the facts and circumstances of this case, becomes
fatal.
12] No doubt, that the issue regarding non joinder of
necessary parties was raised in the trial Court and it was also
framed.   The trial Court records the finding that since two
sisters have relinquished  their  share,   the suit  cannot  be
dismissed for non joinder of necessary parties.   The lower
appellate Court for the first time dismisses the suit on the
ground of non joinder of necessary parties. As pointed out
earlier,     the   appellant/plaintiff,   realizing   the   mistake,   filed
Civil Application No. 5737 of 2008 in this second appeal for
grant of permission to join the legal representatives of two
sisters,   was   not   opposed   and   allowed   by   this   Court   on
10.01.2013. Accordingly, their names are brought on record
and also in the present second appeal.
13] Order I, Rule 10(2) of the Civil Procedure Code
being relevant, is reproduced below;
"O.I   R   10(2)  –   The   Court   may   at   any   stage   of   the
proceedings,   either   upon   or   without   the   application   of
either party, and on such terms as may be appear to the
Court   to   be   just   order   that   the   name   of   any   party
improperly   joined,   whether  as   plaintiff   or  defendant   be
struck out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant, or
whose presence before the Court may be necessary in
order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in
the suit, be added."
The aforesaid provision confers a discretion upon the Court
to permit the name of any person who ought to have been
joined,  whether as plaintiff or defendant,  or whose presence
before the Court may be necessary in order to enable the
Court to effectively and completely to adjudicate upon and
settle all the questions involved in the suit, be added at any
stage of proceedings.  The second appeal being continuation
of the suit,   this Court is competent to exercise discretion
even at the second appellate stage to permit the joinder of
necessary   parties   to   the   suit.     Once   such   permission   is
granted   and   the   parties   are   joined   as   defendants/
respondents in the proceedings,   the order relates back to
the date of filing of the suit and the defect stands cured.
14] All   the   parties   added,   who   are   the   legal
representatives of the two sisters of the plaintiff namely  Smt.
Jankibai and Smt. Tarabai, have filed their reply on oath to
the application of the plaintiff for grant of permission to join
them as party defendants/respondents in the proceedings.  In
categorical terms they have stated in their reply that they do
not want to claim any share or interest in the suit properties
and their predecessor in title had relinquished their shares in
favour of the brothers.  There is no contest involved which is
required   to   be   adjudicated   by   this   Court   upon   granting
permission to join certain persons as defendants/respondents
in the proceedings.  The plaintiff would, therefore, be entitled
to   1/5th    share   in   the   suit   property   and   the   suit   cannot,
therefore, be dismissed in the facts and circumstances of this
case   for   non   joinder   of   necessary   parties.   The   lower
appellate Court ought to have granted an opportunity to the
plaintiff to add the necessary parties to the proceedings and
it is only upon the failure of the plaintiff to comply with such
direction as contemplated by Order 1, Rule 13 of C.P.C., the
suit   could   not   have   been   dismissed   on   the   ground   of
nonjoinder of necessary parties.  The substantial question of
law is, therefore, answered accordingly.
15] Shri Anil Mardikar appearing for defendant No.7
has relied upon decision of the Apex Court reported in AIR
1965 SC 271 (cited supra) to urge that the Apex Court had
refused to grant permission to add necessary parties to the
suit in the appeal  pending before the Apex Court on the
ground that the appellant therein was not vigilant and that the
bar of limitation would also operate for permitting the joinder
of necessary parties in the appeal pending before the Apex
Court.  In my opinion, the decision is clearly distinguishable.
It was a suit filed for recovery of possession by the appellant
claiming exclusive title over the entire suit property.   It was
not a suit for partition and separate possession.  The Apex
Court found that such claim was not tenable and the other
brothers were also entitled to succeed to the estate.  In the
present case, the plaintiff claims only 1/5th   share in the suit
properties and other cosharers likely to oppose the claim
are joined as parties to the suit.   The Apex Court has also
held that the trial Court itself dismissed the suit on the ground
of nonjoinder of necessary parties,   the appellant did not
take any steps to join the necessary parties either in the
appeal before the High Court or even in the appeal before
the Apex Court till the hearing was concluded. In the present
case, immediately after the decision of lower appellate Court,
the plaintiff  moved application which has been allowed. The
Apex Court considered the bar of limitation in a situation
which is not available in the present case.
16] So   far   as   applicability   of   law   of   limitation   is
concerned,  Articles 58, 65, 110 and 113 of the Limitation Act
were brought to my notice.   In some decisions of this Court,
it was held that Article 65 would apply, whereas in some
decisions, it was held that Article 113 would apply. Article 58
deals with the suits filed to obtain any declaration and for that
3 years limitation is prescribed from the date when the right
to sue first accrues.  Article 113 deals with the suit for which
no   period   of   limitation   is   prescribed   elsewhere   in   the
schedule and the period of limitation is of 3 years which
begins from the date when the right to sue accrues.  Article
65 deals with the possession of immovable property or any
interest therein based on title and it prescribes the period of
limitation of 12 years from the date  when the possession of
the defendant becomes adverse to the plaintiff.  Article 110
deals with the suit by a person excluded from a joint family
property to enforce a right of share therein and the period of
limitation prescribed is of 12 years from the date when the
section becomes known to the plaintiff.
17] In the decision of the Apex Court in the case of
Md. Mohammad Ali vrs. Jagdish Kalita and others,  reported
in  (2004) 1 SCC 271,   the Court was concerned with the
applicability of Article 65 of the Limitation Act and it was held
that the plaintiff will succeed if he proves his title over the suit
property and it would be for the defendant to plead and prove
the plea of adverse possession to defeat the claim of the
plaintiff. This decision has been followed by the Apex Court in
the case of Mohammadbhai Kasambhai Sheikh and ors  vrs.
Abdulla Kasambhai Sheikh,  reported in  (2004) 13 SCC 385,
wherein it is held that unless the defendant raises defence of
adverse possession to  claim for a  share by a heir to be
ancestral property,  he cannot also raise an issue relating to
limitation of the plaintiff's claim.   The Court held that in the
absence of such plea of adverse possession being raised in
the written statement, the plea of limitation was not available.
Both these decisions are applicable to the facts of this case
and in the absence of any plea of adverse possession by any
of the parties, the suit cannot be dismissed as barred by
limitation.
18] Article 110 of the Limitation Act relied upon by
Shri Mardikar deals with the suit by a person excluded from a
joint family property to enforce a right to share therein. In the
present case,  the shares are devolved upon the parties to
the   suit   in   accordance   with   Section   8   of   the   Hindu
Succession Act and it is not a suit where the partition has
already taken place and the plaintiff is excluded from the joint
family   property.     It   is   also   not   a   suit   for   enforcement   of
partition   and   separate   possession,   as   contemplated   by
Section 6 of the Hindu Succession Act, though it is styled as
such. The decision has no application to the facts of this
case.
19] The   trial   Court   took   into   consideration   the
enhancement in the share of the plaintiff from 1/15th  to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, one
of the cosharers in the suit properties.   The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3Smt.   Kamal   was   insane   on   the   ground   of   lack   of
pleadings and evidence on record. Smt. Kamal was residing
with   defendant   No.   7Avinash,   who   claims   the   share   of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered.  With
the   assistance   of   the   learned   counsels   appearing   for   the
parties,  I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record.  The Will has been proved
and there is no perversity in recording such finding.   As a
result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th   as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be
modified to that extent.
20] The Second Appeal is, therefore, partly allowed.
The judgment and order dated 30.08.2004 passed in Regular
Civil   Appeal   No.294   of   2002   is   hereby   quashed   and   set
aside. The decree passed by the trial Court in Regular Civil
Suit No. 81 of 2002 on 31.10.2002 is modified as under;
I] The plaintiff is entitled to partition and separate
possession of 1/5th share in the suit property i.e.
(1) field Gat No. 1277, 6H 52R, (2) field Gat No.
1257,   4H   27R   at   village   Shirpur,   (3)   House
bearing Gram Panchayat No. 895, admeasuring
100 x 100 sq.feet and (4) space "Chakki  Chi
Jaga" with flour mill.
II] The defendant No.1 is entitled to 1/5th share, the
defendant No. 2 is entitled to 1/5th  share,   the
defendant no. 4 is entitled to 1/20th   share, the
defendant   nos.  5  and  6  are   jointly  entitled  to
1/20th   share, the defendant No. 7 is entitled to
1/4th share and the defendant no.8 is entitled to
1/20th  share   from   the   whole   suit   property
described above.
III] The plaintiff is entitled to an enquiry into mense
profit against the defendant No.7 as per Order
20, Rule 12 of C.P.C from the date of suit i.e.
08.11.2001   until   the   actual   partition   and
possession of the suit property.
IV] The defendant Nos. 4, 7 and 8 do bear their own
cost and proportionate cost of the plaintiff.
V] Defendant Nos. 1, 2, 5 and 6 do bear their own
cost.
VII] A precept be sent to the Collector, Washim to
effect partition and separate possession of the
suit   field   Gat   Nos.   1277,   6H   52R   and   1257,
4H 27R situated at village Shirpur for 1/5th share
to the plaintiff only.

Whether legal representative of deceased who was not party to proceeding will be bound by decree?

Whether legal representative of deceased who was not party to proceeding will be bound by decree?

The petitioner's case has already been stated above. Now, when a decree is passed in any suit, it is not only the parties to the suit who are bound by it, but in certain circumstances certain other persons who are not parties to the suit are also bound it. The learned Civil Judge Junior Division has held on facts that the present petitioner, though not brought on record as a defendant in the suit, was bound by the decree passed in the suit. The learned Civil Judge has given sound reasons in paragraphs 5, 6 and 10 of his judgment. He has also quite rightly relied upon the decision in MANU/SC/0008/1974 : [1975]2SCR932 Harihar Prasad Singh v. Balmiki Prasad Singh. He has reproduced certain observations from MANU/SC/0008/1974 : [1975]2SCR932 and he has rightly concluded that the present case fell to be governed by those observations. It is enough to point out that the suit was filed against the present petitioner's father as far back as in 1971. The petitioner's father died in 1974. The petitioner claims to be running her father's business of shop/go down which is in question. The suit was in respect of that very same shop/go down. The plaintiff's mother, brothers and sister were already brought on record in the suit. All these circumstance indicate that the petitioner was quite aware of the proceedings. If she felt that her interests were not properly represented by her mother, brother and sister who had been brought on record as defendants in the suit then she would have approached the Court to be made a party to that suit. It is in these circumstances that the learned Civil Judge rightly concluded that the petitioner considered that her interests were properly looked after by her mother, brothers and sister who were brought on record as defendants in the suit. The learned Civil Judge therefore rightly concluded that although the petitioner had not been brought on record as defendant in the suit, she was as much bound by the decree passed in the suit as those who had already been brought on record in the suit. No interference is called for in the impugned orders and hence this Writ Petition is dismissed with costs.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4266 of 1984

Decided On: 08.01.1992

Chhaya Vishnu Sadavarte (Smt.) Vs. Indubai alias Indumati Bhaskar Bhavsar (Smt.) and Ors.

Hon'ble Judges/Coram:
A.A. Cazi, J.
Citation:1993 MHLJ 613

1. By this Writ Petition, the petitioner challenges the order dated 28th August 1984 passed by the Civil Judge, Junior Division, Nasik, below Exhibit 16 in Regular Darkhast No. 31 of 1982 by which order the petitioner's application objecting to issue warrant of possession of premises was rejected and also the order dated 10th September 1984 passed by the III Extra Assistant Judge, Nasik in Civil Miscellaneous Appeal No. 15 of 1984 by which order the petitioner's appeal was rejected as not maintainable.

2. One Vishnu Eknath Sadavarte was a tenant in respect of shop/go down premises situated at Saraf Bazar, Nasik. On 16th December 1971 his landlords filed Regular Civil Suit No. 32 of 1972 in the Court of Civil Judge, Junior-Division. Nasik for evicting him from those premises. During the pendency of the suit, the said Vishnu Eknath Sadavarte died on 10th September 1974. His widow, two sons and one daughter were brought on record as the legal representatives of the deceased. The present petitioner is also one of the daughters of said deceased but she was not brought on record as defendant in that suit. The suit proceeded to hearing and was decreed. That decree was maintained throughout up to the High Court. In 1982 the landlords filed Darkhast proceedings being Darkhast No. 31 of 1982. In those Darkhast proceedings the present petitioner filed an application being Exhibit 16 and objected to the maintainability of he Darkhast. She contended that she was major at the time of the death of her father, that she had not been brought on record in the suit and therefore the decree was not binding on her and that she was doing the business since the death of her father and she had acquired the status of tenant under the provisions of section 5(11)(c) of the Rent Act. Her application was opposed by the landlords-decree-holders. After a chequered history, the petitioner's application was rejected by the trial court and a warrant for possession was ordered to be issued under Order 21, Rule 35 and this was by the impugned order dated 28th August 1984. The petitioner then filed an appeal but that was dismissed by the second impugned order dated 10th September 1984. It is under these circumstances that the petitioner has now filed the present Writ Petition.

3. The petitioner's case has already been stated above. Now, when a decree is passed in any suit, it is not only the parties to the suit who are bound by it, but in certain circumstances certain other persons who are not parties to the suit are also bound it. The learned Civil Judge Junior Division has held on facts that the present petitioner, though not brought on record as a defendant in the suit, was bound by the decree passed in the suit. The learned Civil Judge has given sound reasons in paragraphs 5, 6 and 10 of his judgment. He has also quite rightly relied upon the decision in MANU/SC/0008/1974 : [1975]2SCR932 Harihar Prasad Singh v. Balmiki Prasad Singh. He has reproduced certain observations from MANU/SC/0008/1974 : [1975]2SCR932 and he has rightly concluded that the present case fell to be governed by those observations. It is enough to point out that the suit was filed against the present petitioner's father as far back as in 1971. The petitioner's father died in 1974. The petitioner claims to be running her father's business of shop/go down which is in question. The suit was in respect of that very same shop/go down. The plaintiff's mother, brothers and sister were already brought on record in the suit. All these circumstance indicate that the petitioner was quite aware of the proceedings. If she felt that her interests were not properly represented by her mother, brother and sister who had been brought on record as defendants in the suit then she would have approached the Court to be made a party to that suit. It is in these circumstances that the learned Civil Judge rightly concluded that the petitioner considered that her interests were properly looked after by her mother, brothers and sister who were brought on record as defendants in the suit. The learned Civil Judge therefore rightly concluded that although the petitioner had not been brought on record as defendant in the suit, she was as much bound by the decree passed in the suit as those who had already been brought on record in the suit.

No interference is called for in the impugned orders and hence this Writ Petition is dismissed with costs.

IMPORTANT SUPREME COURT JUDGMENTS - 2017

IMPORTANT SUPREME COURT JUDGMENTS - 2017

1. Wherever High Court finds that in a given case protection against pre-arrest is not given, and no case is made out for arrest pending trial - High Court would be free to grant relief in nature of anticipatory bail in exercise of its power under Article 226 of Constitution. 2017 (1) TVT 1 (SC).     

  2. Tenancy is a creation of Contract between two persons who are capable to enter into contract  called lessor/landlord and lessee/tenant- Two persons can be either living person or juristic persons such as Partnership firm or a Company. 2017 (1) TVT 19(SC)    

3. Separate Statement of each accused recorded under Section 313,on different dates is substantial compliance of Section 313,Cr.Pc. 2017 (1)TVT 68(SC)   

4. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time. 2017 (1) TVT 91(SC)     

5.  Woman's right to make reproductive choices is also a dimension of personal liberty. 2017 (1) TVT 116 (SC)

6. In civil proceedings, Plaintiff is dominus litis but if more than one Court has jurisdiction, Court my determine which is convenient forum subject to which jurisdiction may be availed. 2017 (1) TVT 467(SC)  

7. Suit for eviction of tenant can be maintained by one of co-owners. 2017 (2) TVT 515(SC)                

8. TIP does not constitute substantive evidence. 2017 (1)TVT 598(SC)                                     

9. If rape is committed by even one, all accused are guilty,  irrespective of the fact that only one or more than one has actually committed the act. 2017 (2) TVT 740(SC)                                        

10. Under Section 138 of N.I.Act compensation is recoverable despite default sentence undergone. 2017 (2) TVT 1(SC)   

  11. Court cannot permit prosecution to go on in case one of the categories as illustratively enumerated by Supreme Court in State of Haryana Vs. Bhawan Lal. 2017 (2)TVT 13(SC)                                      

12. Holding Company can utilize experience of its subsidiary companies to qualify in Bid. 2017 (2) TVT 30(SC)                          

13. Involvement of civil society in aid of administration of Justice can be one of steps, apart from investigating officers and trial Courts being sensitized in cases under Section 498A IPC. 2017 (2) TVT 49(SC)      

14. Insurance companies will not insure a vehicle unless it has a valid Pollution Under Control Certificate on date of renewal of insurance policy. 2017 (2)TVT 128(SC)                                   

15. Several aspects bearing upon public interest required to be borne in mind before renewal of leases. 2017 (2) TVT 167(SC)                      

16. It is an erroneous assumption that without following procedure of Section 306Cr.Pc accomplice could not be cited as witness. 2017 (2)TVT 191(SC)                      

17. Scheme of prosecution in punishing under Section 138 of NI Act different from scheme of Cr.Pc. 2017 (2)TVT 247(SC)                          

18. POCSO Act protected  minors by prescribing  statutory age which has nexus with legal eligibility to give consent. 2017 (2)TVT 292(SC)

In the matter of compensation for land acquisition, Court has to be pragmatic(व्यावहारिक) and not pedantic (रूढ़िवादी) : SC.

In the matter of compensation for land acquisition, Court has to be pragmatic(व्यावहारिक) and not pedantic (रूढ़िवादी) : SC.

Civil Appeal No. 9288o 2017 arising out of SLP (C) No.30562 of 2016

K. Subbarayudu and Others Vs. The Special Deputy Collector (Land Acquisition)

Order On : 19-7-17.

This appeal by way of special leave under Section 54 of the Land Acquisition Act, 1894 has been preferred by the claimant assailing the judgment and order dated 12.07.2016 in L.A.A.S.M.P. No.61 of 2015 in L.A.A.S.(SR) No.12334 of 2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh by which the High Court declined to condone the delay of 3671 days in filing the appeal and dismissed the appeal.

A Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 01.10.1990 for acquiring land to an extent of Acs.32.77 in Reach No.11 of Nellepalli village for foreshore submersion of Kandaleru Reservoir under Telugu Ganga Project. After conducting the award enquiry, Land Acquisition Officer, Telugu Ganga Project, Rapur passed an award, in Award No.12/91-92 dated 30.01.1992.

The award was passed after taking into account the sale statistics for the preceding three years prior to the date of notification under Section 4(1) of the Land Acquisition Act which was obtained from the Sub-Registrar, Rapur and after verification of all sales, the land value is fixed by the Land Acquisition Officer and approved by the Special Collector, Telugu Ganga Project, Nellore as per norms prescribed under the Land Acquisition Act, 1894 amended in 1984.

The Land Acquisition Officer (LAO) awarded compensation for cultivable dry lands at Rs.9,000/- per acre and for cultivable waste land at Rs.7,000/- per acre. The Land Acquisition Officer also awarded compensation of Rs.50-70 for each lime tree and compensation of Rs.32 for each pomegranate tree. The land was taken possession on 02.03.1994 and compensation paid to the land owners.

As against compensation awarded by the Land Acquisition Officer, reference was made under Section 18 of the Act to the Senior Civil Judge, Gudur. Before the reference court, on behalf of the claimants, CW-1 was examined and Exs.A1 to A5 were marked. On behalf of the referring officer, one of its employees was examined as R.W.1 and the particulars showing the compensation awarded by the LAO, Ex.B1 was marked.

The Reference Court by its judgment and order dated 06.08.2004 in LAOP No.22/1993 enhanced the market value of land from Rs.9,000/- to Rs.12,000/- for cultivable dry land and to Rs.7000/- to Rs.10000/- for cultivable waste land per acre. Further the Reference Court fixed the market value of the trees to Rs.100/- per tree as against Rs.50/- to Rs.70/- awarded by the Land Acquisition Officer and confirmed the rate of Rs.32/- per pomegranate tree as fixed by the Land Acquisition Officer basing on the age of the trees.

Dissatisfied with the enhanced compensation, the appellants/claimants approached the High Court referring to the order in A.S. No.1749/2004 dated 01.03.2013 and other judgments of Andhra Pradesh High Court. However, there was a delay of 3671 days in so preferring the appeal. The High Court dismissed L.A.A.S.(MP) No.61/2015 in L.AA.S. (SR) No.12334/2014 on the ground of inordinate delay of 3671 days since the High Court was of the view that no sufficient cause was shown for the delay and held that the delay sought to be condoned was not on account of a bona fide mistake but was merely intended to make gain basing on the assessment of value of pomegranate trees in the decisions of Peddireddy Madhava Reddy and Pidugu Seshugari Lakshmi Devi.

Aggrieved by the order of the High Court, the appellants approached Supreme Court by way of special leave to appeal.

The learned counsel for the appellants submitted that the High Court failed to appreciate that the claimants have given satisfactory explanation for the delay of 3671 days in filing the appeal before the High Court and while so the High Court has erred in declining to condone the delay.

It was further submitted that in L.A.S.S.No.46/2015, the High Court was pleased to condone the delay of 3386 days in filing the land acquisition appeal suit subject to the condition that in the event, the appellants/claimants succeed in the appeal, she is not entitled to any interest in respect of the period of delay and the same approach ought to have been given in case of appellants also.

In so far as the quantum of compensation, learned counsel for the appellant has relied upon the decision of this Court in Civil Appeal Nos.11404-405 of 2016 dated 29.11.2016 whereby this Court has awarded compensation of Rs.3,000/- per pomegranate tree in connection with lands acquired for Somashila Project submergence. The learned counsel for the appellant prayed that the same amount of compensation of Rs.3,000/- per pomegranate tree be awarded to the appellant.

Per contra, supporting the judgment of the High Court, the learned counsel for the respondent submitted that reason for inordinate delay of 3671 days was not satisfactorily explained and the High Court rightly exercised its discretion in declining to condone the delay. Insofar as the judgment in Civil Appeal Nos.11404-11405 of 2016 is concerned, it is submitted that the said order relates to Somashila Project submergence of which the award was of the year 1999 and the same cannot be applied to the present case.

Hon’ble Court Observed  :

Heard the learned counsel for the parties at some length. Perused the impugned judgment and considered the documents and other materials on record.

The High Court dismissed the claimants’ appeal mainly on the ground of delay of 3671 days in filing the appeal. On perusal of records, it is seen that the appellants have explained the reason for the delay in filing the appeal stating that they have entrusted the relevant papers to their co-villager namely, viz., Pullaiah who is well-conversant with the court proceedings and the said Pullaiah has also taken steps to engage an advocate at Hyderabad and the said Pullaiah informed that the appeal was filed and left for Kuwait to eke out his livelihood.

This the appellants/claimants were under the impression that the appeal has been filed.

The claimants have further stated that when they inquired the said Pullaiah, he informed them that he went to the house of Sri Jaganmohan Raju, Advocate and he learnt that the said Advocate is no more and expired in 2012 itself and on enquiry with the clerk of the said advocate, he learnt that no appeal has been filed and this has caused a delay of 3671 days in filing the appeal. The High Court rejected the explanation given by the appellants on the ground that there are contradictions between the affidavit filed by the said Pullaiah and the stand of the claimants and being not satisfied with the reason for the delay of 3671 days in preferring the appeal, the High Court dismissed the appeal.

Before the High Court, the appellants relied upon Yellasiri Sarojanamma’s case, in L.A.S.S. No.46 of 2015, in which the High Court condoned the delay of 3386 days in filing the land acquisition appeal suit subject to the condition that in the event, the appellant/claimant thereon succeed in appeal, she is not entitled to any interest in respect of the period of delay.

The appellants contended that the same approach ought to have been adopted in the case of appellants also. Insofar as, the reliance placed upon by the claimants in L.A.S.S. No.46/2015, the High Court seems to have brushed aside the contention of the appellants on the puerile ground that the relevant fact situation in the said case is not forthcoming in the said order. In our view, the High Court was not right in adopting a different yardstick in the case of the appellants in not condoning the delay.

The term “sufficient cause” is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok AO and Others (2005) 3 SCC 752: 2005 (4) JT 10, it was held as under:- “Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient”.

With the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but same need not be used as a ground to depict them with negligence or want of bona fide. In case of acquisition of lands of agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not pedantic in their approach. In Dhiraj Singh (D) Thr. Lrs. Etc. Etc. v. Haryana State and Ors. Etc. Etc. 2014 (9) SCALE 441, it was held as under:-

“Equities can be balanced by denying the appellants’ interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic.”

When the concerned court has exercised its discretion either condoning or declining to condone the delay, normally the superior court will not interfere in exercise of such discretion. The true guide is whether the litigant has acted with due diligence. Since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay.

Insofar as the compensation for the pomegranate trees, the appellants have placed reliance on the judgment of this Court dated 29.11.2016, in C.A. Nos.11404-11405 of 2016. Planting, raising and making commercial use of fruit bearing trees is a painstaking affair and cost of the same is consistently on rise as the years are passing by which is to be kept in view. Award of compensation in relation to fruit bearing trees depends on facts and circumstances of each case. It has been held in Kerala State Electricity Board v. Livisha and Ors. (2007) 6 SCC 792, in the following terms:

So far as the compensation in relation to fruit bearing trees are concerned the same would also depend upon the facts and circumstances of each case. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer v. Kamandana Ramakrishna Rao AIR 2007 SC 1142 wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act, same principle has been reiterated in Kapur Singh Mistry v. Financial Commission and Revenue Secretary to Govt. of Punjab and Ors. , State of Haryana v. Gurcharan Singh and Anr. [1995] 1 SCR 408, and Airports Authority of India v. Satyagopal Roy [2002] 2 SCR 505.”

Hon’ble Court Held :

In the facts and circumstances of the said case, in C.A. Nos.11404-405 of 2016, considering the cost of planting and efforts involved in growing trees in general and in particular raising the pomegranate trees over the efflux of time, this Court deemed it appropriate to award Rs.3,000/- as compensation for each of the pomegranate tree.

However, the compensation of Rs. 3000/- per pomegranate tree, as has been awarded in the abovementioned case, cannot be made applicable to the present case, considering the fact that award of compensation by Land Acquisition Officer in the said case dated 08.03.1999, as opposed to award in the present case which is dated 30.01.1992. A period of about seven years is a considerable period to be taken note of while computing cost of planting and raising fruit bearing trees. It is obvious that seven years back a fruit bearing tree would have fetched lesser income than it would fetch now. In the facts and circumstances of the present case and taking into consideration that the appellants were also awarded compensation for the land, we deem it appropriate to award compensation of Rs.1500/- for each pomegranate tree.

In so far as the lime trees are concerned, fresh limes are available throughout the year and have good market and the lime trees are earning income almost throughout the year. The Reference Court enhanced the compensation of Rs.70/- to Rs.100/- per tree as against the compensation of Rs.52/- to Rs.70/- awarded by the Land Acquisition Officer. While considering the question of awarding compensation to lime trees, in Shaik Imambi v. Special Deputy Collector (Land Acquisiton), Telugu Ganga Project (2011) 11 SCC 639, this Court held as under:-

There is no specific documentary evidence in regard to the actual income from the orchard. As the reports of experts of the state government assessed the gross annual income from each tree as Rs.150-200/-, it would be appropriate to take the average thereof, namely Rs.175/- as the annual income per tree in this case. If Rs.35/- is deducted towards the cost of cultivation and other expenses as recommended by the experts, the net annual income would have been Rs.140/- per tree or Rs.1,06,540/- for 761 trees.” Applying the ratio of the above decision, Rs.250/- is awarded as the annual income per tree. Compensation of Rs.100/- per each lime tree enhanced to Rs.250/- is awarded.

Compensation awarded to the appellants is enhanced to Rs.1,500/- for each pomegranate tree and Rs.250/- for each lime tree. The appellants are also entitled to all statutory benefits like solatium and other benefits and interest on the same.

It is further directed that the appellants shall not be entitled to any interest during the period of delay of 3671 days. The appeal is partly allowed in the above terms. Parties are to bear their respective costs.

Sunday, 8 October 2017

Nominee is not sole heir of property: HC

*Nominee is not sole heir of property: HC*

*MUMBAI: A nominee of a property in a housing society does not automatically become the absolute owner of the property after the death of the original owner, the Bombay High Court has ruled in an important order.*

Delivering the verdict in a legal battle that has dragged on for over 29 years, Justice A P Deshpande said it would be the personal law of an individual that would determine the successor to the property and not the nomination under the Cooperative Societies Act.

"The Maharashtra Cooperative Societies Act (MCSA) does not provide for a special rule of succession altering the rule of succession laid down under the personal law,'' the judge said, citing two earlier judgments. *The court held that a nominee did not become the "absolute owner'' and was empowered only to hold the "property in trust for the real owners, that too for the purpose of dealings with the society''. A nominee has to give way to the legal heirs.*

The court's judgment came in a dispute over a 5,610-sq-ft plot at the Nav Rajasthan Co-Operative Housing Society in Pune bought by Shivram Sattur, who had named his wife Tarabai as a nominee.

Tarabai tried to sell the property after his death, but her four children sued her. Two subordinate courts upheld the sale agreement saying Tarabai had become the sole owner of the property as a result of the nomination.

*The HC, however, did not agree and said that her children also had a right over the plot as they were the legal heirs*.

The Hindu law says that on the death of a man, in case there is no will, the property is equally shared between the wife and the children. Muslims are governed by their personal laws.

*Under the MCSA, on the death of a member, the society can transfer the interest to a nominee or an heir or a legal representative. Such a nominee does not become the only owner, the HC said. The nominee represents the legal heirs of the deceased member while dealing with the cooperative society and is only empowered to act on behalf of the real owners. This is a temporary arrangement between the death of the member and till the court decides the legal heir who is entitled to the property or estate.*

The HC judgment has been stayed for eight weeks on a request from the developer who bought the property.

*NOMINATION FACTS*

(1) A society member can make a nomination, which can be revoked at any time

(2)- On the death of a member, the society transfers the shares to the nominee or the heir or legal representative

(3)- In case no nominee is mentioned, the society puts out a public notice inviting claims

(4)- The nominee is in charge of the property only till the court decides who is entitled to the property as per the succession laws
(5) This is not applicable for Maharashtra as it related to West Bengal as cooperative laws are state subject lot of discussions on the matter has been going on and recent judgement as below of Bombay high court may also be referred
(6) *The SC judgement is interpreting west bengal Co-operative society law. Succession in bengal is based on dayabhaga law whereas here in maharashtra succession is based on mitakshara law. There is therefore a difference in law of succession after death of owner. In my humble opinion the above SC judgement is not applicable in Maharashtra because law of succession is different here.* Moreover the above is interpretation of section 79 and 80 of WBCS act and rules 127 and 128 of WBCS Rules. The words used by WB legislature are interpreted.  The interpretation cannot be used to interpret the words used by maharashtra legislature.  (7) The S C judgment being referred wrongly by many, but  cannot be used in maharashtra.

Many social groups keep on recirculating the S C judgment  to say in a landmark judgment supreme court has declared nominee to be absolute owner.

The Bombay High Court (DB Headed by Abyay Oka J.) in Appeal No.313 of 2015, decided on 1.12.2016,  at paragraph Nos. 34, after citing several judgments, including the recent judgement of supreme court, has conclusively settled the law that
*nominee  does not get absolute title to the property subject matter of nomination. The reason is by its very nature, when a share holder or a deposit holder or an insurance policy holder or a member of a co-operative society makes a nomination during his life time, he does not transfer his interest in favour of the nominee. It is always held that the nomination does not override the law relation to testamentary or intestate succession. The provisions regarding nomination are made with a view to ensure that the estate or the rights of the deceased subject matter of nomination are protected till the legal representatives of the deceased take appropriate steps.... As observed by the Apex court, the legislative intention is not to provide a third kind of succession*
Its hoped the controversy is set to rest, once for all.