Supreme Court

Yash Vardhan Mall Vs. Tejash Doshi

MANU/SC/1482/2017

23.11.2017

Family

Affidavit filed in support of caveat shall state the right and interest of caveator, and grounds of objections to the application

In facts of present case, a Will was executed by Shrutika Doshi on 1st March, 2013 by which she appointed her husband, the sole Respondent, as the executor and trustee. Her minor daughters were made the beneficiaries. It was mentioned in the Will that, in case the Respondent is unable to carry out or act as the sole executor by giving effect to the Will and testament, the Appellant shall become the sole executor. The Will dated 1st March, 2013 was registered with the Sub-Registrar of Assurance. Shrutika Doshi died. Another Will executed by Shrutika Doshi on 22nd April, 2013 surfaced wherein the Respondent was appointed as the sole executor and in case he is unable to act as the sole executor his father would replace him. As the Respondent did not apply for grant of probate of the Will dated 1st March, 2013 for two and half years, the Appellant applied for a probate of the Will.

The petition filed by the Appellant for grant of probate of the Will dated 1st March, 2013 was dismissed by the District Judge. An appeal has been filed against the said order which is pending in the High Court at Calcutta. Single Judge of the High Court allowed the application filed by the Respondent and discharged the caveat. The appeal filed against the said was disposed of by High Court holding that, there was no reason to interfere with the order of the learned Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby the Appellant has approached present Court.

As per Rule 25 of the High Court at Calcutta (Original Side), 1914, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 1st March, 2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that, he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22nd April, 2013, especially after holding that he has a caveatable interest.

The petition filed by the Appellant for grant of probate of the Will dated 1st March, 2013 was rejected by the District Judge, on the ground that, the application for probate of the Will dated 22nd April, 2013 was pending and that, the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge that, the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.

Present Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. considered the point of caveatable interest in a detailed manner and held that no hard and fast Rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that, the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that, the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22nd April, 2013. The affidavit filed in support of the caveat fulfils the condition of Rule 25. The appeals are allowed and the judgment passed by the Division Bench of the High Court is set aside.

Relevant

Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. MANU/SC/1693/2008
: (2008) 4 SCC 300

Tags : Caveat Affidavit Conditions

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Supreme Court

Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar

MANU/SC/1460/2017

20.11.2017

Property

Parties to the suit cannot travel beyond the pleadings; Court cannot record any finding on issues which are not part of pleadings

The Appellant is the Plaintiff whereas the Respondent is the Defendant in the civil suit out of which this appeal arises. The dispute involved in the appeal relates to a shop. By judgment/decree, Trial Court decreed the Appellant's suit holding that, the Appellant is the owner of the suit shop, that the Respondent failed to prove his adverse possession over the suit shop, that the Respondent has been in illegal possession of the suit shop and that the Appellant is entitled to claim eviction of the Respondent from the suit shop. The Trial Court accordingly passed decree for possession and mesne profits against the Respondent.

The first appeal filed by Respondent before First Appellate Court was dismissed. The Respondent, felt aggrieved, filed Second Appeal in the High Court. The High Court, by impugned judgment, allowed the Second Appeal and while setting aside of the judgments and decrees of two Courts below dismissed the Appellant's suit. The High Court held that, the Respondent was in possession of the suit shop as tenant and, therefore, the remedy of the Appellant lies in filing the suit under the Rent Laws and the Transfer of Property Act for claiming possession of the suit shop. It was held that the present suit is, therefore, not maintainable for passing a decree for possession against the Respondent in respect of suit shop. Felt aggrieved, the Plaintiff (Appellant) has filed the present appeal by way of special leave before this Court.

Reading of Sub-sections (4) and (5) of Section 100 of the Code of Civil Procedure, 1908 (CPC) in clear terms, shows that, first, the High Court can hear the second appeal only on the question so formulated; second, it has jurisdiction to dismiss the second appeal if the Respondent raises an objection at the time of hearing that the question so formulated does not arise in the case or is not a substantial question of law; and third, it can hear the appeal on any other question not initially framed provided such question arises in the case and is a substantial question of law. Such question can then be framed by assigning the reasons. The Respondent never claimed that he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. On the other hand, the Respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession.

It is these issues, which were gone into by the two Courts and were concurrently decided by them against the Respondent. These issues, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the Court cannot record any finding on the issues which are not part of pleadings. Court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue de hors the pleadings is without jurisdiction. Such is the case here.

The Respondent did not adduce any evidence to prove that, he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. In order to prove the tenancy between the Respondent and the Appellant's predecessor-in-title (Vithal Dhopeshwarkar), it was necessary for the Respondent to have filed rent receipts/lease deed etc. and also to have examined his landlord who, according to him, had inducted him as tenant in the suit shop. It was not done.

Sale deed of the suit shop nowhere recites that, the Respondent was in possession of the suit shop as tenant. All that it recites is that the Respondent has been in possession of the suit shop. Such recitals, no way confer the status of a tenant on the Respondent in the absence of any independent evidence adduced by him to prove the creation of tenancy. No benefit of Sale deed could thus be taken by the Respondent to claim the status of a tenant. The High Court was not right in holding that, the Respondent was in occupation of the suit shop as tenant and that the remedy of the Appellant was to file a civil suit to claim eviction under the Rent Laws. This finding is contrary to the pleadings and evidence. It is also otherwise not legally sustainable for want of any evidence adduced by the Respondent in support thereof.

Trial Court and First Appellate Court were justified in holding the Appellant to be the owner of suit shop, purchased the same vide registered sale deed from its previous owner. It was also rightly held that, the Respondent was in possession of the suit shop as an encroacher and failed to prove his adverse possession over the suit shop. These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law. Impugned judgment of the High Court is set aside and as a consequence, the judgments of the First Appellate Court and Trial Court are restored.

Tags : Possession Shop Encroachment

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High Court of Bombay

Manohar Vs. The State of Maharashtra

MANU/MH/2745/2017

20.11.2017

Criminal

When there are strong circumstances proving the guilty, absence of evidence on motive cannot be a circumstance for discarding the evidence

The Appellant is convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 (IPC) and he is sentenced to suffer imprisonment for life and to pay fine. The Trial Court has held that deceased was murdered due to suspicion which accused was having about her character. The Trial Court has further held that, it is the present Appellant, who had prepared the ditch for burying the dead body for destruction of evidence of murder. The Trial Court has held that, only the Appellant had an opportunity to finish Deceased as mother of the appellant was living separate from him. The subsequent conduct of the appellant is also considered by the Trial Court against him.

It is true that, motive is relevant when the case of prosecution rests on circumstantial evidence. However, not in each and every case, there should be motive because many times the motive may be only in the mind of accused and others may not be in a position to realize what is in the mind of accused. When there are strong circumstances like found in the present matter, the absence of evidence on motive cannot be a circumstance for discarding the evidence of aforesaid nature. This Court holds that aforesaid evidence is more than sufficient to hold the accused guilty for the offence of murder.

In view of the provision of Section 106 read with Section 114 of Evidence Act, 1872, it was necessary for the Appellant/Accused to explain aforesaid circumstances. In ordinary course, he was supposed to remain present in his house on the night. The Court is expected to go with the presumption that, he must not have left for work prior to his duty hours and there is no evidence given on his duty hours. The death took place on the night. These circumstances are not explained by the Accused. Similarly, he ought to have explained as to why there was a ditch in his house. He ought to have explained as to why he did not inform to Police or others that his wife was dead or something had happened to her. Even when he was having kid of 2 years, he was not there in the house to take care of that kid after the death of his wife. This circumstance also ought to have explained by the accused. All the incriminating circumstances are proved by the prosecution and the circumstance of absence of explanation of husband/appellant is additional circumstance against him. In view of these circumstances and the provisions of Section 106 read with section 114 of Evidence Act, only inference available is that it is the accused/appellant who committed murder of his wife and it is the Accused/Appellant, who had taken ditch in the house with the intention to bury the dead body and destroy the evidence of murder.

In the present case, husband is involved as the accused and the murder took place in his house where the deceased was cohabiting with him. The things which ordinarily happen in routine course need to be considered by the Court and inference needs to be drawn by the Court on the basis of evidence given in that case. There is no dispute over the propositions made in the cases by this Court and Supreme Court cited supra. These propositions cannot help the accused in the present matter in view of the facts of the present matter. High Court held that it is not possible to interfere in the decision given by the Trial Court by which appellant is held guilty for the offence of murder. The appeal stands dismissed.

Tags : Conviction Legality Circumstantial Evidence

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Supreme Court

Naresh Chaubey Vs. Central Bureau of Investigation

MANU/SC/1440/2017

16.11.2017

Criminal

Supreme Court need not re-appreciate evidence while affirming the judgments of Courts below in criminal cases

In facts of present case, the Animal Husbandry Officer, received information that wrongful withdrawal of treasury bills was being made. He constituted a Committee for scrutinizing the suspected bills. Charges were framed against the Appellant and two others for wrongful withdrawal and misappropriation of money from the treasury on the basis of the forged bills. The Appellant was convicted under Sections 420, 471, read with Section 465 of the Indian Penal Code, 1860 (IPC) and Sections 13(1)(c), (d) and 13(2) of the Prevention of Corruption Act, 1988. The Appellant was sentenced to undergo rigorous imprisonment of three years for the offences punishable under the Indian Penal Code and two years for the offences punishable under the PC Act. The conviction and sentence of the Appellant was affirmed by the High Court, aggrieved by which the above appeal is filed.

Apex Court is of the opinion that, there is no error committed in holding the Appellant guilty of the offences alleged. Both the Courts below have thoroughly examined the oral as well as documentary evidence on record and dealt with the submissions made on behalf of the defence in a detailed manner. It is settled law that this Court need not re-appreciate evidence while affirming the judgments of the courts below in criminal cases. On examination of impugned judgments, it is found that, there is sufficient material on record to show that, the Appellant had indulged in acts of misappropriation and embezzlement of public funds by unauthorizedly processing bills which he received not through proper channel. There is necessity to repeat the reasons that have been assigned by the courts below while convicting and sentencing the Appellant.

Regarding question of sentence, the trial Court in the year 2002 observed that, the Appellant was 60 years old and was suffering from ill-health. The Appellant has undergone 20 months out of the sentence of 36 months, that he is 75 years old now and is suffering from several ailments. The sentence imposed on the Appellant by the trial court and affirmed by the High Court need be modified to the period already undergone by the Appellant. The Appeal is disposed of.

Tags : Conviction Re-appreciation Evidence

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High Court of Delhi

Sabarkantha Annuity Pvt. Ltd. Vs. NHAI and Ors.

MANU/DE/3715/2017

15.11.2017

Arbitration

Merits and the terms of contract are irrelevant for invoking of the bank guarantees

The Petitioner has filed present petition under Section 9 of the Arbitration and Conciliation (Amendment) Act, 2015 with a prayer that, Respondents be restrained from acting upon the letter dated 15th September, 2017 or from invoking the Bid securities of the Petitioner to the tune of Rs. 10.93 Crores and also restraining the Respondent Nos. 2 to 4 from honouring the invocation of said bank guarantees on behalf of Respondent No. 1 acting in terms of letter dated 3rd November, 2007. Petitioner now in present round of litigation, has relied upon Clauses Nos. 9.1.1, 9.1.2 and 4.3 of the agreement dated 28th April, 2017 entered into between the parties to say the claim for damages since is not a claim for a sum presently due and payable and the respondent would be entitled to damages only on proof of loss, per Clause 4.3 of the agreement and hence is not entitle to the entire sum of bid security.

Clause No. 9.1.2 speaks of an exclusive right of the authority to encash the bid security. It opens with a non-obstante clause saying notwithstanding anything contrary contained in this agreement if the performance security is not provided within a period of thirty days from the date of the agreement the authority can encash the bid security and appropriate the proceeds thereof as damages and the rights of the concessionaire under or arising under the agreement shall be deemed to have been waived off and this agreement is deemed to have been terminated by the mutual agreement between the parties.

Clause No. 9.1.2 shows that, invocation of Bid security and appropriating its proceeds is independent of Clause No. 4.3. The question, if any, damages accrue or not shall be a question within the domain of arbitration, if invoked. At this stage, the Court needs to see whether the Petitioner failed to submit performance securities in time per provisions of the agreement.

The law qua encashment of bank guarantee is well settled. It being an independent contract and lest any fraud or irretrievable loss to the Petitioner is alleged, no stay can be granted by the Court. The merits and the terms of contract are irrelevant for invoking of the bank guarantees. At this stage, one can only go through the terms of the bank guarantee to find if any fraud was committed while entering into such contract and nothing beyond.

Admittedly, it is not a case where Petitioner has alleged fraud or an irretrievable injustice would be caused to him if Bid Security is encashed, the Respondent being National Highways Authority of India, a government company/undertaking. The Petitioner had already availed of remedy of writ jurisdiction and has even gone in appeal on merits before the Division Bench of this Court with prayer(s) that, the Respondent should not encash the Bid Security. The Division Bench rather dismissed the appeal without grant of any liberty of avail Section 9 remedy which the learned Single Judge had initially accorded to the Petitioner. In these circumstances allowing this application would be against the spirit of order of Division Bench of this Court.

Further in KV George v. Secretary of the Government and Vivek Jain v. UOI, it was held the issues decided by writ court would act as a bar from reopening of such questions in the civil court on principles of res-judicata. Further in Executive Engineer, ZP Engineering Division and another v. Digambara Rao and others, it was held if the whole claim was not laid before the writ jurisdiction then also the petitioner would be barred from raising it later in civil Court per Order 2 Rule 2 of Code of Civil Procedure, 1908 (CPC). There is no merit in petition and the same is dismissed.

Relevant

KV George v. Secretary of the Government MANU/SC/0253/1989
: (1989) 4 SCC 599 and Vivek Jain v. UOI MANU/DE/0360/1989
: AIR 19898 Delhi 301, Executive Engineer, ZP Engineering Division and another v. Digambara Rao and others MANU/SC/0825/2004
: (2004) 8 SCC 262

Tags : Bank guarantee Encashment

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High Court of Bombay

Akash Madhukar Patil Vs. The State of Maharashtra and Ors.

MANU/MH/2652/2017

14.11.2017

Criminal

Externee is entitled before an order of externment is passed to know the material allegations against him

In present petition, the Petitioner is impugning the order passed by the Sub-Divisional Magistrate, passed under Section 56 (1) (b) of the Maharashtra Police Act, 1951, thereby externing him from Jalgaon and Dhule districts and also being aggrieved by dismissal of his Externment Appeal by the Divisional Commissioner-respondent, confirming the externment to the extent of Jalgaon district. Issue involved in present petition is whether while passing the impugned orders the Respondents have formed an opinion with some objective material and have taken into consideration all the necessary pre-conditions for passing orders.

The whole purpose of empowering District Magistrate of Sub-Divisional Magistrate to exercise the powers under Section 56 of Act, is to enable them to maintain peace/order by driving out the person whose movements in the area are likely to cause or calculated to cause harm to any person or property. Being a drastic provision which seeks to create an embargo on the life and personal liberty of a person guaranteed under the Constitution of India by Article 21, it is expected that the authorities who are to exercise powers under Section 56 of the Act are conscience and conscious that there has to be some strong and objective material which would justify any order passed under Section 56. Any lapse in this respect would result in curtailment of personal liberty of citizen and will have to be struck down.

In the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, the Supreme Court observed that although Section 56 makes a serious inroad on personal liberty but such restraint has to be suffered in the general interest of the society. However, care must be taken to ensure that the terms of Section 56 and 59 are strictly complied with. It has also been laid down that, the externee is entitled before an order of externment is passed to know the material allegations against him and the general nature of those allegations. He need not be informed all specified particulars since the full and complete disclosure is likely to frustrate the very purpose of the externment. Lastly, it has been laid down that, it is primarily for the externing authority to decide how best an externment order can be made effective so as to substantiate its real purpose. He should consider for how much period out of statutory limit of two years and from which territories he has to be externed, after consideration of all the material and data and there can be no general formulation. Any excessive order can be struck down.

In both the impugned orders, passed by Respondent Nos. 2 and 4 respectively, they have invoked specifically the ground contained in clause (b) of Sub-section (1) of Section 56, however, while passing the order the wording used at places demonstrates that perhaps in addition to clause (b) they were also considering the material under clause (a) of Sub-Section (1) of Section 56. They have specifically mentioned at places that the movements or acts of the petitioner are likely to cause alarm to person or property which wording clearly demonstrates such inference. This clearly indicates that, the Respondents while passing the impugned orders have clearly lost sight of the distinction between the two grounds (a) and (b) of Sub-Section (1) of Section 56.

The notice issued under Section 59 of the Act reveals that, it was informed to the Petitioner that, from the kind of offences registered against him, it was apparent that he did not have any work and was criminal by nature, obstructing peace of the village by threatening people and because of his terror nobody was coming forward to openly give statement. He was habituated of committing such offences and in spite of registration of offences, there was no change in his behaviour. Ex facie, there is absolutely no reference about statements of any witnesses having been recorded in-camera to justify such inference. It is true that, the very purpose of taking such preventive action would be frustrated, if the names of the witnesses or persons are not disclosed and it is also therefore not expected that in this notice under Section 59 no such disclosure should have been made. However, as is observed above and as is laid down in the case of Pandharinath at least a general reference should have been made informing the Petitioner that some persons have been entertaining such apprehension about his behaviour and their statements have been recorded in camera. For want of such reference, it cannot be said that, the Petitioner was extended an opportunity to meet such ground. Simultaneously, it also cannot be said that Respondent Nos. 2 and 4 have applied their mind before drawing the opinion justifying their inference.

Respondent No. 3 recorded statements of couple of witnesses which read that, though, these witnesses were aware about pending criminal cases against the Petitioner, there was no danger or harm to the person or property of anybody from the Petitioner. The impugned orders apparently ignore both these statements and this circumstance can easily be resorted, to draw an inference that the impugned orders have been passed without application of mind. The witnesses whose statements are favourable to the Petitioner have been overlooked and the statement of nobody has been recorded even in-camera who is entertaining any apprehension from the Petitioner.

Both the impugned orders suffer from grave illegality and have been passed without understanding seriousness of exercising the powers under Section 56 of the Act. Merely because few criminal cases are pending against the Petitioner out of which, in one of the cases, he has already been acquitted and which cases have been filed almost two years prior to initiation of the externment proceedings, could be no sufficient ground per se to extern the Petitioner. High Court allowed the petition. Impugned orders are quashed and set aside.

Relevant

Pandharinath Shridhar Rangnekar vs. Dy. Commr. of Police, The State of Maharashtra MANU/SC/0200/1972

Tags : Externment Material allegation Information

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