Mutation Entry - Revenue Record it's - Value ....

Mutation  Entry and Revenue  Record  - It's  Value ......

                                    

-  Basically  revenue  record is a document which  show the  name  of  person holding  property .

- But Revenue  record is a fiscal  proceeding  and does not create or extinguish Title of property .

- Revenue  record enables person in whose favour it has  to pay the land  revenue .

- Also mutation entry in the  record of right is also fiscal proceedings  and  it does not create or extinguish title or has it any presumptive value on title .

- But entry in the  record of right  have presumptive value of  it's correctness although the same is rebuttal.                                                                      

- Record of right is used for purpose of possession.

- - - - Relevant  Provision  - - - - - - - 

- S.35 Indian Evidence  Act 1872.

- - - - - Relevant Judgement -  -  -  -  -  -  

- Ajit Kaur @ Srjit Kaur v/s Darshan Singh (D) through LRS & Ors 2019 SAR 537.

-H. Lakshmaiah Reddy & Ors v/s Venkatesh Reddy 2015 SAR 612 = A.I.R.2015 S.C.2499.

- M.T.W.Tenzing  Namgyal & Ors v/s Motilal Lakhotia & Ors  A.I.R.2003 Suppl.(1)1448 = 2003 SAR 282.

-  Kuldip Chand and Anr v/s Advocate General to Government of Himachal Pradesh and Ors A.I.R.2003 Suppl.(1) 1685 = 2003 SAR 234.

- Narasamma  v/s State Of Karnataka 2009(4) All.M.R.968(S.C.).

- Suraj Bhan v/s Financial Commissioner 2007 AIR SCR 1754.

- Balkrishna Patil  v/s Madhukar Deshpande 1999(2) Mh.L.J.304.

- Bhaguji Bayaji  Pokale v/s Kantilal Baban  Gunjawate 1998(1) Mh.L.J.276=1998(1) All.M.R.536.

- Balwant Singh v/s Daulat Singh A.I.R.1997 S.C.2719.

- Order of revenue officer based o untrue evidence has no value A.I.R.1972 S.C.681,689.

.........Please Comment  give Suggestion for better development of next BLOG ......

At any Time -Examine Party/Witness in Civil Suit

Examination of Party or Witness At Any Time after institution of Suit  .............( i.e. before hearing or framing issue ).....…...

                     

- Basically in civil suit a  party to suit or witness shall be examine after framing of issues i.e. at the time of hearing of suit. 

-  But in some exceptional circumstances party ( i.e. plaintiff or defendant) or witness of party may be examine at any time after institution of suit.

- Even though party to suit or witness may examine (above mentioned at any time means) even before framing of issues or before filing of written statement by defendant.

- Also defendant or witness of defendant may examine at any time before  evidence of plaintiff (i.e. before starting evidence of plaintiff).

- If witness of suit is about to leave the jurisdiction of court he may examine at any time after institution of suit.

- Exceptional circumstances for examination of party or witness is depending on fact of suit as well as circumstances of suit.

- In sometimes immediately examination is necessary due to old age of party or witness.

- Also in sometimes like S.68 of The Indian Evidence Act 1872 examination of one of attesting witness is mandatory ( document for example will,gift) but only one witness alive but his physical condition due to old age or some other reason not in good in such circumstance party to suit may examine at any time  after filing of suit.

- For examination of party or witness at any time after filing of suit permission of Court is necessary. i.e. application for such permission is mandatory

......... Relevant Provision......................

- - Order 18 Rule 16 of Civil Procedure Code 1908.

- - - - - - - Relevant Judgement - - - - -- - - - 

- Kumodini Damodar Magar v/s Bhushan Damodar Magar A.I.R. 2004 Bombay 396=2004(3) Mh.L.J.214=2004(4) All.M.R.782

- Daulat Jehangir Mehta v/s Piloo Dadabhoy Broacha 2005(1) Mh.L.J.623 = 2005(2) All.M.R.525

- Laxmibai (Dead) Thru LR's & Anr v/s Bhagwanthbuva (Dead) Thru LR's & Ors A.I.R.2013 S.C.1204 = 2013 SAR 243

- A.I.R. 1978 Patana 218.

........ Please Comment & give Suggestions for better development of next BLOG........

Civil - Court - Jurisdiction - Basic - Provision

Section 9  & 15 to 20 of C.P.C. 1908 are related provisions of Jurisdiction of Civil Court........

                                             

                                       

=Basically civil court have jurisdiction to try all suits of a civil nature.                       

=As per section 9 of C.P.C. civil court have jurisdiction to try all suits of civil nature except suits are expressly or implied barred by law.                                                 

 

= In fact  number provisions of laws bars  jurisdiction  of civil court to take  cognizance  of civil suits ...........................for example  Section  85 of Maharashtra (Bombay) Tenancy  and Agricultural Act 1948, Section  50/51/80 of  Maharashtra (Bombay) Public Trusts Act 1950, Section . 36C/158/213 of  Maharashtra Land Revenue Code 1966,Section 268 /430 of Company Act  2013,,Section 34 of SARFAESI Act 2002,Section 91 of Maharashtra  Co-operative  Societies Act 1960,Section 47 of Maharashtra  Rent  Control Act 1999,Section 8/42 of Arbitration  and Conciliation Act 1996 etc.

= Basically if we  carefully peruse  the provisions of bar of jurisdiction  of  civil  court  then we found that the act/order/judgement passed by the  authority/tribunal/officer shall be according to law and it shall not be void /ultra vires.                         

= If act /order/judgement passed by authority /tribunal/officer is void ultra vires then civil court have jurisdiction to try suit in respect of such act/order/judgement.                                   

= Generally we  files civil suits in respect immovable property like  partition/injunction/specific performance /declaration of title /declaration in respect of documents, order /encroachment /easement .....etc.                       

= Basically suits of civil nature does not mean only suit in respect of immovable property but every legal right of civil nature in respect of property as well as person. For example every person have right to file suit for compensation in respect of defamation.                                                     

= Also every person or his legal heir have right to file suit for damages,  competition caused  in quarrel.                                         

  = Also legally married  husband or wife can file suit for injunction not to marry till  legal divorce against each other.              

 = Also a person can file suit for declaration in respect of his legal  status as wife, husband, son,mother,father,   or not as above                                                         

=As per above discussion and as per section 9 of C. P. C. civil court have jurisdiction to try all suits of civil nature is the presumption subject to express or implied barred           

=Section 15 of C.P.C. is relevant for territorial jurisdiction of civil court

= Every civil suit shall be instituted in the court of the lowest grade   

 = Territorial jurisdiction of civil court is determined as per S.22A /25  of Maharashtra (Bombay) Civil Courts Act 1869.                      

 = Along with territorial jurisdiction of civil court we shall take in consideration  the pecuniary jurisdiction of civil court while filling civil suit.                                                                                              

 =  Pecuniary jurisdiction of civil court is determined as per S. 24 of Maharashtra Civil Courts Act. As per it Civil Judge Junior Division have jurisdiction of all civil suits/proceedings of civil nature wherein the value of subject matter does not exceed 500000=00 (Five lakh rupees)  and up to  the sky is the pecuniary limit of Civil Judge Senior Division.  

 = As  per S. 32 of  Maharashtra Civil Courts Act only Civil Court Senior Division have jurisdiction to entertain suit against Crown /Government /Officer of Government in their official capacity are party. But suit against local authorities /bodies like Grampanchayat/Zilla Parishad/Panchayat Sasmit /Nagarpanchayat/MSEB/MSRTC be filled in Civil Judge Junior Division subject to pecuniary jurisdiction of court.                                                        

 =  As per S. 28A of Maharashtra Civil Courts Act as well  as S. 262/371 of  Indian Succession Act 1925 power of district court is delegated in Civil Court subject to pecuniary jurisdiction.                

 = As per Chapter XIV (14) of Civil Manual application for Succession /heirship certificate  under succession /heirship act be filled in Civil Judge Junior/Senior Division subject to pecuniary jurisdiction                    

 = As per above chapter XIV of civil manual contested application under Indian Succession Act be decided by Civil Judge Senior Division.                                                                                              

 = As per Notification dated 10-03-1998 published in Maharashtra Govt. Gazette dated 18-06-1998,Part 4-C, page 1153 under Order 37 Rule  1 of C. P. C. all the courts in the state having jurisdiction of  Summary Suit subject to pecuniary jurisdiction.                            

 = As per S. 19 of Hindu Marriage Act 1955 and notification  ever petition under the said act be filled in Civil Judge Senior Division. 

 = But suit for Divorce /Restitution /Judicial Separation under  Mohammedan Law be filled in Civil Judge Junior Division.              

 = As per S. 31 of Special Marriage Act 1954 all petition under the said act be filled in District Court.                                                      

 = As per S. 9 of Guardian and Wards Act  1890 all applications under the said act be filled in District Court.                                    

= S.16 of C.P.C. relates to immovable property . Every suit like recovery of possession , rent , partition , redemption , foreclosure , sale , charge , compensation in respect of immovable property & recovery movable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate subject to pecuniary jurisdiction .

= S. 17 of C.P.C. is in respect of immovable property situate within jurisdiction of different courts.

= S. 18 of C.P.C. is in respect of place of institution of suit where local  limits of jurisdiction of courts are uncertain.

= S. 19 of C.P.C. is suit for compensation for wrongs to person or movables .

= S.20 of C.P.C. is in respect of suits other than mentioned above be instituted where defendants reside or cause of action arises.

....... Above provisions are mostly useful before instituting/ filing suit .

........ Please Comment & give Suggestions for better development of my next BLOG.......

Maintenance - In Civil Suit.......

Maintenance In Partition Suit................

                                 

- Basically provisions in respect of maintenance are in Criminal Procedure Code , The Adoption & Maintenance Act 1956 , The Protection of Women From Domestic Violence Act 200 , The Maintenance & Welfare Of Parents & Senior Citizens Act 2007 ...Etc.

- Till today nowhere exact provision in any Law to grant maintenance in partition suit .

- But in partition suit Court may grant maintenance  to a party who not having any independent source livelihood and not having in possession of joint family property.

- In partition suit liability is two fold manner one from existence of relationship and other from on the basis of possession of joint family property.

- In partition suit Court may grant interim maintenance to a party to suit who fulfill above conditions. In partition suit all plaintiff are defendant also all defendant are plaintiff so a party means plaintiff or defendant who fulfill above condition can claim maintenance in partition suit.

- In execution of partition decree party to application may claim maintenance till he gate actual possession of his share because execution is a continuation of a suit and as per S.141 of C.P.C. provision of suit applies to miscellaneous proceeding also.

- In partition suit the court may grant maintenance under S. 151 of C.P.C. in interest of Justice and Equity

- No miscellaneous or regular appea lies against above maintenance order.

....... Relevant Provision.......

 - -S. 141 and 151 of Civil Procedure Code 1908.

- - - - - - Relevant Judgement  -  - - - - - -  - - 

- Sushilabai v/s Ramcharan 1976 Mh.L.J.82.

- Sandeep Ramesh More and Others v/s Narayan Deoba More and Others 2006 (4) Mh.L.J.486.

- Ramaji Damala Jadhav v/s Smt. Sangita Garjana Jadhav { Nagpur Bench W.P.no.7040/2016} decided on 14-03-2019.

- Gangaram Genu Shinde v/s Varsha Vikram Shinde { Bombay Bench W.P.no.2378/2020} decided on 11-03-2020.

....... Please Comment  & give Suggestions for better development in my next BLOG...........

Hiba - (Gift) - Requirement- Mohammedan Law

.. Gift (Hiba) under Mohammedan Law basic requirements...........

                                                                    

- Hiba literally means the donation of thing from which donee may derive benefit , unconditional transfer  of property made immediately and without any exchange or consideration by one person to another and accepted by or on behalf of the latter.

- Simply Hiba means transfer of property by one person to another without consideration or without an exchange.

- Hiba is a contract as per Mohammeden Law.

- The donor shall be sane and major and must be the owner of the property which he is gifting. Also property shall be in existence at the time of hiba.

- A manifestation of the wish or intention on the part of the donor to gift is first requirement.

- The acceptance by the donee either impliedly or expressly is second requirement.

- The taking of possession of subject matter of the gift by the donee is third requirement.

- In Mohammedan Law oral Hiba is permissible subject to fulfilment of above requirements.

- A Hiba does not require a registered deed means non registration of Hiba Will not affect validity.But registered hiba is only a valuable piece of evidence.

 - A hiba to an unborn person is not valid under Mohammedan Law.

........ Relevant Provision.........

 ..... Un codified Mohammedan Law chapter in respect of Hiba - Gift.

- - - - - Relevant Judgement - - -  - - - - - - - 

- Abdul Rahim & Ors v/s Sk. Abdul Zabar & Ors A.I.R 2010 S.C.211 = 2009 SAR 560= 2009(5) Mh.L.J.701.

- Rasheeda Khatoon (D) through LRS. v/s Ashiq Ali s/o Lt. Abu Mohd (D) through LRS 2014 SAR 1137 = 2014 AIR SCW 6261.

- Hafeeza Bibi & Ors v/s Shaikh Farid (D) By Lrs & Ors A.I.R.2011 S.C

1695=2011 SAR 523.

- Jamela Begum (D) Thr. Lrs v/s Shami Mohd.(D) Thr.Lrs. & Anr 2019 SAR 166.

............ Please Comment & give Suggestions for further development in next BLOG.......

- 

Right of Stranger Purchaser of Coparcener's Interest..

Right of Stranger Purchaser of Coparcener's Interest in Joint Hindu Property...

                               

- In a some states of India a  coparcener may alienate his undivided interest in the entire joint family property or his undivided interest in a specific property forming part of the joint family property.

- A coparcener has not right to alienate any specific property or portion of property as his own before partition.

- A stranger purchaser does not acquire a right to joint possession with the other coparcener.

- A stranger purchaser have right to file general suit for partition in which suit be joined all coparcener and all property of joint family be included.

- In partition suit stranger purchaser have right of equity on partition subject to coparcener's liability attached to the alienor's share.

- In partition stranger purchaser may or may not gate property purchased by him.

- Right to sue for partition may exercised before or after death of vendor coparcener.

- A coparcener shall not be prohibited by any law to alienate his share.

.... Relevant Provision....

...Un Codified Hindu Law - Chapter. Alienation of Undivided Coparcenary Interest...

......... Relevant Judgement...

- M.V.S. Manikayala Rao v/s M. Naraisimhaswami and others -  A.I.R. 1966 S.C. 470.

- Hardeo Rai v/s Sakuntala Devi - A.I.R. 2008 S.C. 2489= 2008(5) Mh.L.J. 490.

..... Please comment & give Suggestions which will helpful to me improve my next BLOG........

Child Born To Second Wife - Right......

Today's legal position of Rights of Child Born to Second Wife or Child Born out of a Void Marriage...............

                             

    

- Basically before/ prior to anti Bigamy Acts ( like Bombay Prevention of Hindu Bigamous Marriage Act XXX of 1946 ) a Hindu may marry number of Wives although he has a wife or wives living . 

- That means polygamy is not prohibited in Hindu before Anti Bigamy Acts.

- So prior to anti bigamy acts child born out of second,third.......Etc Marriage is legitimate and entitled share in ancestral, coparcenary joint family property of their parents like child born out of first marriage as Un - Codified Hindu Law.

- After anti bigamy acts second marriage is prohibited & child born out of a second/void marriage is not legitimate so he is not entitled to share in any ancestral , joint family properties of their parents.

- But child born out of second marriage after anti bigamy acts have share in separate / self acquired properties of their parents but child can claim it ir their right will accrue Only on Death of their Father by way of Succession.

- As per S. 16 (1) (2) of The Hindu Marriage Act 1955 ( this amendment is substituted - w.e.f.27- 05 - 1976 ) child born out of Void / Second Marriage is legitimate subject to sub section (3) of S.16 of H.M.Act but prior to amendment child born out of void / second marriage is not legitimate.

- Even though legitimacy is concerned on child born out of a void / second Marriage is not entitled share in the ancestral, joint family property of their parents.

- Question of Property in S. 16 of The Hindu Marriage Act 1955 has qualified it with Self - Acquired property or Ancestral property is placed before Larger Bench for Consideration as per - Revanasiddappa v/s Mallikarjun 2011 SAR ( civil ) 377= 2011(11) SCC 1.

- The above Reference is yet to be decided [ i..e. it is pending.]

..... Relevant Laws ...

- Un Codified Hindu Law's provision in respect of Marriage & Succession.

- Anti - Bigamy Acts of those States which passed such Act.

-  The Hindu Marriage Act 1955.

- The Hindu Succession Act 1956.

.....Relevant Judgement.....

-- Revanasiddappa v/s Mallikarjun 2011 SAR 377 = 2011(11) SCC 1

 - Balkrishna Pandurang Halde v/ s Yeshodabai Balkrishna Halde 2018 (6) Mh.L.J.947 ( In 6 Judgements of Supreme Court are referred ).

.......... Please Comment & give Suggestions....... Which will be  helpful to me to Improve my Blog........

Abatement - Misconception - In Civil Proceeding

Abatement in civil proceeding like suit / Miscellaneous Application / Execution Application / Appeal etc ....

                      

                               

- If the right to sue survives then no abatement due to death of a party ( i.e. plaintiff, defendant, applicant, opponent, appellant, respondant etc)  to proceeding.

- If within limitation (i.e. within 90 days ) no application is made by party ( i.e.plaintiff, appellant, applicant etc who filed proceeding ) for taking legal representative of deceased party on record then proceeding shall abate so far as the deceased party concerned.

- No specific order of abatement is required to be passed in any proceeding but proceeding automatically abate , if steps are not taken for taking legal representative on record within time.

- After abatement within 60 days application may be filed for set aside abatement.

- After above period ( i e.period for taking legal representative on record 90 days + period for set aside abatement 60 = 150 days ) delay will start.

- After 150 days party who filed proceeding may file 1)  an application for taking legal representative on record along with 2) application for set aside abatement & 3)  application for  condonation of delay for set aside abatement.

- In Execution Proceeding ( i.e. Darakhast Application ) no time limit for for taking legal representative on record ( please peruse Rule 12 of Order 22 ) .

- The court may exempt party to proceeding from substituting the legal representative of any defendant who failed to file written statement or who failed to appear & content the suit at hearing. ( peruse Rule 4(4) of Order 22 ) 

- The court may determine legal representative of deceased party. If such question arises before an Appellate Court then appellate court may direct subordinate court to try , determine question & return the records together with evidence if any recorded at such trial , its finding & reason.

- Finding in above  enquiry of legal representative can not operate as res judicata.

- No abatement by reason of death of party between the conclusion of hearing & the pronouncing of the judgement.

- Pleader of party to proceeding shall inform the Court about death of party if he comes to know.

- In case of an assignment, creation or devolution of any interest during the pendency of proceeding , the proceeding may by leave of the court be continued by or against the person to or upon whom such internet has come or devolved.( i.e. transfer of interest by way sale, gift, will , assignment etc.) 

.... Relevant provision...

- Order 22 of C.P.C.

- S. 2(11) of C.P.C.

- S.141 of C.P.C.-Miscellaneous proceedings.

- S. 5 of The Limitation Act 1963.

- Article 120 & 121 of The Limitations Act 1963.

...... Important problem arising in civil practice........

- Party to proceeding [ i.e. Defendant or Opponent ] expired prior to the filing of the proceeding) .

…......No bar to file application under Order 1 Rule 10 & S.151 of C.P.C. for adding legal heir of deceased party in proceeding 

...... Relevant Judgement--- 

Pankajbhai  Rameshbhai Zalavadiya v/s Jethabhai Kalabhai Zalavadiya 2018 SAR (civil) 1

......... Please Comment & give Suggestions.....................

Police - Aid in Civil-Suit/Application

Basically in civil law - no specific provision in respect of - Police-Aid in civil suit/application but civil court may grant it under inherent powers (i.e.as per S.151 of C.P.C.).....................

                               

                

As s.151 of C.P.C. civil court have inherent power under which court to make such  orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

- Civil court have unlimited as well as unaffected inherent power as per above s.151 of C.P.C.

- Basically civil court invoke inherent power to meet the ends of justice if the provisions of C.P.C.are not exhaustive.

- Civil court shall not exercise inherent power if C.P.C. provide specific provision.

- Inherent power of civil court is discretionary power & there is no legislative guideline how to exercise it. But it be exercise with wisdom by court.

- In civil suit/proceeding [ including execution as well as other miscellaneous application also]  civil court may grant POLICE- AID for execution/implementation of degree/order of court under s.151 of C.P.C.

- Civil court may grant police aid to Court commissioner/Court receiver/bailiff for execution of order / decree of court under s.152 of C.P.C.

- Other Relevant provisions of C.P.C. s. 94,141, O.21 R.35,O.26,39,40

 

- No appeal lies against order passed as above under s.151 of C.P.C.

....Relevant Judgement.......

1) Om Prakash v/s Amar Singh 2020 Mh.L.J.803 (S.C.)

2) Raja Venkateswarlu v/s Mada Venkata Subbaiah 2017 SAR 980

3) Ratnabai Naik v/s Satwarao Naik A.I.R.1995 Bombay 61 =1995(1) Mh.L.J. 529

4) A.I.R. 1983 Calcutta 266

5) A.I.R. 1993 Calcutta 288

6)  A.I.R.1996 Karanataka 257

7) A.I.R. 1961 S.C. 218

....... Please Comment & give Suggestions......

Cross-Objection In Appeal

Cross - Objection in an appeal may be filed by respondent as per Rule 22 of Order 41 of C.P.C.

                             

- Any respondent may  support decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour without filing cross objection.

- Respondent shall or obligatory on him to  file cross objection against any part of the decree which is against him if he intends to assail it.

- Cross objection shall be filed within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow.

- Cross objection shall be in the form of memorandum of appeal & the provisions of appeal shall apply thereto.

- In any appeal cross objection filed by respondent , the original appeal is withdrawn or is dismissed for default the cross objection filed nevertheless be heard & determined after such notice to the other parties as the court thinks fit.

- Generally cross objection against co - respondents not maintainable. But in exceptional case it's maintainable.

- S. 5 of Limitation Act as well as Rule 3A of order 41 of C.P.C. applies to cross objection so it may be filed after expiry of limitation along with delay application.

..... Relevant Judgement......

1) Shri Ravindra Kumar Sharma v/s The State of Assam & Ors A.I.R. 1999 S.C. 3571 = 1999(7) SCC 435. = 1999 SAR 838

2) Hari Shankar Rastogi v/s Shri Sham Manohar & Ors 2005 SAR 315

3) Parsu Antu Bardeshkar v/s Tamas Sahu Bardeshkar 1978 Mh.L.J.572 = 1979(8)81 Bom.L.R.359

4) S. Nazeer Ahmed v/s State Bank of Mysore A.I.R.2007 S.C.989 = 2007(3) All.M.R.379(S.C.)

5) Hardevinder Singh v/s Paramjit Singh & Ors 2013(3) SCC 261 = 2013 SAR 169= 2014(2) Mh.L.J.126

........ Please Comment & give Suggestions...