Registration - Compromise - Decree..?

Compromise Decree and Registration........?

                                

- Whether compromise decree require Registration as per  Section 17 of Registration Act 1908 ? 

- When compromise decree require Registration as per Section 17 of Registration Act 1908 ?

- Basically compromise decree with regard to property which was subject matter of the suit itself does not require registration.

- Compromise decree in respect of an immovable property comprising other than that which was the subject matter of the suit or the proceeding the same would require registration.

- As per section 17(vi) of Registration Act 1908 any decree or order of court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding require registration.

======= Relevant Provision ====== 

- Section 17 of Registration Act 1908.

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

- Som Dev and Ors v/s Rati Ram and And A.I.R.2006 S.C. 3297 = 206 SAR 772.

- Mohammade Yusuf  & Ors v/s Rajkumar & Ors 2020 SAR 364.

-K. Raghunandan & Ors v/s Ali Hussain. Sabir & Ors A.I.R. 2008 S. C.2337 = 2008 SAR 692.

= P. I. L. No. 88/2021 Bombay H. C. The Barshi Bar Association v/s The State of Maharashtra ---- decided on 09-03-2023

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Interim - Mandatory - Injunction

Civil Suit - Interim Mandatory Injunction - To maintain Status-Quo - On the date of Filing of Suit . 

                                     

                         

- The ad - interim mandatory injunction is to be granted not at the asking but on strong circumstances so that to protect the rights and interest of the parties so as not to frustrate their rights regarding Mandatory Injunction.

- The court would grant such an Interim  Mandatory Injunction Relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of Justice , resulting in injustice being perpetuated throughout the hearing , and at the end the Court would not be able to vindicate the cause of Justice.

- The Court would grant interim mandatory injunction if situations emerge where the granting of an interim relief would tantamount to granting the final relief.

- The court would grant interim mandatory injunction if compelling circumstances where the injury complained of is immediate and pressing and would cause extreme hard - ship.

- Technicalities or technical objections to frustrate the mandatory temporary injunction which has attained finality cannot be permitted to thwart the Course of Justice.

====== Relevant Provision = = = = = = = = =

- Order 39 Rule 1 / 2 of Civil Procedure Code 1908.

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

- Hammad Ahmed v/s Abdul Majeed & Ors 2019 SAR 599.

- Suresh D.Naik v/s Mangesh R.Wagle 2000(4) Mh.L.J.157 = 2000(1) ALL.M.R.176.

- Baban Narayan Landge v/s Mahadu Bhikaji 1989 Mh.L.J.146.

- Mumbai Municipal Corporation v/s Sushilaben I. Patel 2002(5) Mh.L.J.246 (Bom).

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Arbitration

...................Arbitration............ Basic Information...

                                     

          

- Basically no format is required for arbitration agreement.

- Arbitration means any arbitration whether or not administered by permanent arbitral institution.

- Arbitration agreement means an agreement by the parties to submit  arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship , whether contractual or not.

-Arbitration agreement may be in the form an arbitration clause in contact or in the form of separate agreement.

- It shall be in writing.

- It shall be signed by the parties to agreement.

-  It contains exchange of letters , telex. , telegram or other telecommunication , exchange of statement of claim and defence .

- If arbitration agreement provide procedure for appointment of arbitrator then it shall be followed by parties.

-If parties to arbitration agreement for appointment of arbitrator is not followed by parties then Chief Justice of India or High Court or those court designated by chief justice or institution designated by him may appoint may arbitrator.

- Parties to agreement are free to determine the number of arbitrator. But such number shall not be even number.

- Appointment of arbitrator may be challenged.

- A parties to arbitration agreement are free to agree on the procedure to be followed while conducting arbitration proceeding.

- Arbitration Award may be challanged  before Principal Civil Court or Court of Small Causes within 3 months from award.

- Arbitration Award may be enforced under Code of Civil Procedure Code 1908 in same manner like degree of the court

- A civil Court have no jurisdiction to entertain dispute in respect of arbitration agreement but it have power to refer dispute to Arbitrator.

====== Relevant Provision ======

- Section 2 to 43 of The Arbitration and Conciliation Act 1996.

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

- Greaves Cotton Ltd v/s United Machinery and Appliances A.I.R.2017 S.C.120.

- Mrs Hema Khattar & Anr v/s Shiv Khera A.I.R.2017 S.C.1793.

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Written - Statement - Denial

.......... Written - Statement.......... & ........................ Denial..

                                      

- Denial in written statement must  be specific in respect of each  allegation in plaint against defendant.

- Denial in written statement must specific in respect of  each allegation of fact of which defendant does not admit the truth.

- Defendant in written statement must not evasively denies allegation against him but answer the point of substance.

- Every allegation of fact in plaint , if not denied specifically or by necessary implication or stated to be admitted in pleading of defendant , shall be taken to be admitted.

- Basically as per provision of pleading allegation by plaintiff in plaint against defendant shall be specially denied in written statement if not denied amount to be admitted.

- Basically pleading means plaint & written statement.

======== Relevant Provision =======

- Order 6 Rule 1 , Order 8 Rule 3/4/5 of Civil Procedure Code 1908.

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

- M. Venkataramana Thevnar (D) by Lrs v/s M.Rajagopal He bar  & A.I.R.2007 S.C.(Supp) 43.

- M/s Gian Chand & Brothers & Another v/s Rattan Lal @ Rattan Singh A.I.R.2013 S.C.1078.

- Subramani and Ors v/s M. Chandralekha A.I.R. 2005 S.C.485.

- Jaspat Kaur Cheers and Anr v/s M/s Industrial Trade Links and and Ors etc 2017 (7) SCALE 230 = 2017 SAR 757.

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.

- 

- 

.. Blending.....

Blending.......... ........ Joint Family Property

                                    

- Principle of Blending in respect of joint family property basic requirement.

- Basically existence of  coparcenary property is essential for blending of a coparcener's separate property with the coparcenary property. If there is no coparcenary property then there can be obviously no blending or throwing of self acquired property into the common stock.

 - Existence of coparcenary ,coparcenary property and separate property  is basic requirement for blending

- Property which was originally the Separate or Self - acquired property of a member (coparcener) of a joint family may by operation of the doctrine of blending become joint family property, if it has been voluntarily thrown by him into common stock with the intention of abandoning all separate claims upon it.

- A clear intention to waive his separate rights must be established.

- Blending will neither be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son or from the mere failure of a member to keep separate accounts of his earning.

- Blending principle does not to female who is not coparcener.

- A clear intention of blending is required.

====== Relevant Provision ======

 - Un codified Hindu Law ... Principle of Blending.

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

- D.S.Lakshmaiah and And v/s Balasubramanyam and And A.I.R 2003 S.C.3800  = 2003 SAR 817.

- Venkata Reddy v/s Laksh mama A.I.R. 1963 S.C.1601.

- KV Narayan v/s Ranganadhan A.I.R.1976 S.C.1715.

- Subramania Reddy v/s Venkatsubba Reddy A.I.R 1999 S.C.1116.

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Burden of Proof- Civil Suit..

....... Burden of Proof................. Civil Suit...... basic ... Requirement....

                                        

- Basically burden of  proof lies on that person who would fail if no evidence at all were given on either side.

- Burden of proof lies on the person whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts , must prove that those facts exists.

- Burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence , unless it is provided by any law that the proof that fact shall lie on any particular person.

- Burden of proof of relationship is on the person who affirms it.

= = = = = = Relevant Provision = = = = =

- Section 101, 102, 103, 109 of The Indian Evidence Act 1872.

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

- Chairman Board of Trust Sri Ram Mandir Jagtil Karimnagar District , A.P. v/s S. Rajya laxmi (D) & Ors 2019 SAR 188.

- Ali Hussain (D) Thr Lrs v/s Rabiya & Ors 2019 SAR 1058.

- Jagdish Prasad Pate v/s Shivnath & Ors 2019 SAR 765.

- Rathnamma & others v/s Sujathamma & others 2020 Mh.L.J.36.

- Rangammal v/s Kuppuswami 2011 SAR 712 = A.I.R.2011 S.C.2344.

- Subhra Mukherjee v/s Bharat Cocking Coal Ltd A.I.R.2000 S.C. 1203.

- Krushna Mohan Kul v/s Pratima Maity A.I.R.2003 S.C.760.

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= Delay - Application ........

Delay Application ....................................... for any Appeal / Application - basic requirement ...

                                     

- Any appeal or any application may be admitted after the prescribed period , if the appellate or applicant satisfies the court that he had sufficient cause for not preferring the appeal  or making application within such prescribed period .

- Sufficient cause ... the appellate or the applicant was misled by any order , practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause .

- Right to appeal is statutory right it cannot be deprived only on ground of delay so Sufficient Cause should be given liberal construction so as to advance suitable justice .

- Negligence of an Advocate is sufficient cause to condone delay .

- Differing legal advice by different advocate could be sufficient cause to condone delay .

- Mistake of an advocate is also sufficient cause to condone delay .

- Length of delay is however , no matter - explanation for delay is the only criteria for condonation of delay .

- Every day's delay must be explained does not mean that a pedantic approach should be made .

- Application for condonation of delay may be filed even after filing of an appeal or application .

- In Delay application appellate or applicant may claim Interim Relief like Stay/Injunction etc which is necessary for ends of justice .

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

- Section 5 of The Limitation Act 1963.

- Order 41 Rule 3A of Civil Procedure Code 1908.

====== Relevant Judgment ==========

- Bhivchandra Shankar More v/s Balu Gangaram More & ors  2019 SAR 632.

- K. Subbarayudu and Others  v/s The Special Deputy Collector (Land Acquisition ) 2017 SAR 1003 = (2017) 8 SCALE 61.

- Perumon Bhagvath Devaswom Perinadu Vill v/s Bhargavi Amma (Dead) By Lrs  & Ors  A.I.R.2009 S.C.(Supp) 886= 2008 SAR 790.

- Manoharan v/s Sivarajan & Ors  2014 SAR 23.

- N. Balakrishnan v/s M. Krishnamurthy A.I.R.1998 S.C.3222.

- Sonabai Kerappa Katkarb v/s Mohamad Jilani Mohmad Washid Shaikh 2008(6) All.M.R.323= 2008(5) Mh.L.J.411.

- Suresh G. Ramnani v/s Aurelia Ana Da Piedade Miranda alias Araiyo Alvares 2012(5) Mh.L.J. 40.

- Bhausaheb Hiraman Makale v/s Laxman Shankar Gaikwad 2012(1) Mh.L.j. 168.

- Pratapchand Lakhamaji Jain v/s Smt. Lilabai Krishanath 1998 (3) Mh.L.J. 706.

- Vinodkumar v/s Kailaskumar Makhanlal Chaudhari 2011(1) Mh. L. J. 269.

- Shaikh Ibrahim Jan Mohammad v/s Tekchand Rathod 1986 Mh.L.J.902.

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Pre - emption - Right

....... Pre - emption ......... .... under Hindu Succession Act 1956........

                                       

                           

- Right of Pre emption  in respect of immovable property or business of intestate shall devolve on the heirs Specified in Class I of the Shedule of the Hindu Succession Act be acquire by one of the above heir specified in Class - I 

-  Right of pre emption does not apply when property devolves by survivorship .

- Right of pre emption does not accrues unless Succession open .

- Right of pre emption apply to agricultural property also.

- Right of pre emption apply to proposed transfer .

- Right of pre emption may apply to property transferred .

- If two or more class I heirs claim right of pre emption then heir who offers Highest Consideration for transfer shall be preferred .

- Remedy to enforcement of right of Pre emption is to file a civil suit .

- Right of Pre emption can be claimed within 1 year - the said period begins -  when  the purchaser takes under the sale sought to be impeached , physical possession of whole or part of the property sold , or , where the subject - matter of the sale does not admit of physical possession of the whole or part of the property , when the instrument  of sale is registered .

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

- Section 22 of The Hindu Succession Act 1956.

- The Class - I of  The Shedule of above act.

- Article 97 of The Limitation Act 1963.

= = = = = = = =Relevant Judgement = = = = =

- Ashutosh Chaturvedi v/s Prano Devi A.I.R.2008 S.C.2171 = 2008 SAR 870.

- Ramlal Maniram Navdhinge v/s Maniram Patiram Navdhinge 2008(1) Mh.L.J.860.

- Bharat Machindra Parekar v/s Ajanabai Baburao Thaware 2007(6) Mh.L.J.706.

- Babu Ram v/s Santosh Singh A.I.R. 2019 S.C.1506 = 2020 All.S.C.R.317

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Benami - Transaction .........

........... Benami Transaction ..................

                                      

- Means any transaction in which any property ( movable ,immovable , tangible , intangible , any right  / interest  in such property ) transferred to One person for a consideration Paid or Provided by Another Person .

- The property purchased by any person in the name of his wife or unmarried daughter for their benefit does not bar by benami act unless contrary is proved .

- The property is purchased in the name of Coparcener in the  Hindu Undivided Family  for the benefit of the Coparcenary does not bar by benami .

- The property purchased in the name of Trustee  or Person of Fiduciary Capacity is not by benami .

- Basically following particular be taken into consideration  for Benami Transaction 

a) the source from which the purchase money came .

b) the nature & possession of the property after the purchase.

c) motive if any for giving the transaction a benami colour .

d) the position of the parties & relationship if any between claimant and the alleged benamidar .

e) the custody of the title deeds after the sale .

f) the conduct of the parties concerned in dealing with the property after the sale .

-  No suit , claim  , action  to enforce any right in respect of any property held Benami.

- All properties held Benami liable to acquisition as per procedure prescribed by Government .

- The Benami Transaction Act is prospective and not retrospective in operations .

- Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to 3 years or with fine or both.

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

--- The Benami Transaction Act 1988 (it come into force since 5 September 1988)

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

- Probodh Chandra Ghosh v/s Urmila Dassi & Anr A.I.R.2000 S.C.2534.

- Rajappa Hanamantha Ranoji v/s Mahadev Channabasappa A.I.R.2000 S.C.2108.

- Binapai Paul v/s Pratima Ghosh & Ors A.I.R. 2008 S.C.543.

- Shankaranarayana Rao v/s Leelavathy  2007 SAR 540.

- Samittri Devi v/s Sampuran Singh A.I.R.2011 S.C.773.

- Smt.P.Leelavathi (D) by Lrs v/s V.Shankarnarayan Rao 2019 SAR 672.

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Gift By ... Hindu /Mohammedan

Gift  ................by Hindu/ Mohammedan ................. immovable , movable property .............Requirement .....

                                       

- Gift means transfer of existing own  property made voluntarily and without consideration by one person (Donor) to another (Donee) and accepted by or on behalf of donee but not otherwise .

- A hindu governed by Mitakshara or Dayabhaga may dispose his separate or self acquired property by gift  subject to claim of maintenance .

- A Mitakshara coparcener shall not dispose of his coparcenary interest by way of  Gift without consent of other coparcener .

- But Dayabhaga coparcener may dispose his coparcenary interest by way of Gift without consent of other coparcener.

- Basically delivery of possession from donor to donee is most important ingredient for Valid Gift .

- A gift of immovable property be affected by registered instrument which shall be signed by or on behalf of the donor  and attested by at least 2 witnesses .

- A gift of movable property may be made orally .

- A gift once completed can not be revoked unless it was obtained by fraud or undue influence .

- A gift  made in contemplation of death is recognized by the Hindu Law .

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

.... provisions of Gift under un codified Hindu Law 

.... chapter Gift under The Transfer Of Property Act , 1882.

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

- Govndbhai Chhotabhai Patel and others v/s Patel Ramanbhai Mathurbhai 2020( 2) Mh.L.J.258.

-  Parvatibai @ Laxmibai Annaji Patil  v/s Baburao Ganu Kanade 2015(1) Mh.L.J. 628 = 2014(6) ALL.M.R.845.

= = = = = = = = = = = = = = = = = = = = = = = = = 

.. 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.

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Review ....Judgement/Order ...

Review of Judgement and Order..............................By Court.......... Scope........

                                       

- Basically power of Review must be exercised within the framework of Section 114 and Order 47 of C.P.C. 1908 by Court.

- It be exercised by Court in following circumstances..

- The discovery of new and important matter or evidence which after the exercise of  due diligence was not within the knowledge of the applicant or could not be produced by applicant at the time of decree or order passed by court .

- Some mistake or  error apparent on the face of the record .

- Any other sufficient reason which require review  

- Review power is not inherent power but it conferred specifically so within ambit of above provision it must be exercised by court .

- But view taken by court in judgement or order is erroneous is not ground to review .

- Error of counsel not bringing to the notice of court the relevant precedents is not ground of review .

- Decision on a question of law on which the judgment or order of court is based is reversed or modified by the subsequent decision of superior court in any other case is not ground of review .

- Mere possibility of two views on the subject of judgment or order is not ground for review .

- Review application be disposed of as expeditiously as possible . Delay cause  injustice .

- Limitation for review application is 30 days it begins from date of decree or order .

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

- Section 114 & Order 47 of Civil Procedure Code 1908.

- Article 124 of The Limitation Act 1963.

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

- Union of India & Ors v/s B.Valluvan A.I.R.2007 S.C.210.

- Lily Thomas v/s Union of India and others 2000(2) Mah.L.R 409 S.C.

- Haridas Das v/s Usha Rani Banik and others A.I.R.2006 S.C.1634 = 2006(4) Mh.L.J.14 SC.

- Surendra Kumar and Ors v/s Chief Executive Officer M.P. and Ors 2004 SAR 479.

- Kewal Chand Mimani (d) by Lrs  v/s S.K.Sen & Ors  A.I.R. 2001 S.C.2569 = 2001 SAR 632.

- Sri Dokka Samuel v/s Dr. Jacob Lazarus Chelly 1997 SAR 437 =1997 (4) SCC 478.

- Dr. Subramanian Swamy v/s State of Tamil Nadu & Ors 2014 SAR 432 = 2014 AIR SCW 6893.

- Sasi (D) through Lrs v/s Arvindakshan Nair and Others A.I.R.2017 S.C.1431 = 2017 SAR 898.

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Partition - Decree - Execution - Limitation

Partition Decree in respect of Agricultural and House property .........It's ....Execution ....Limitation for execution .........

                                   

- Basically take into consideration that Partition Decree is a Preliminary Decree .

- In a partition decree rights of parties for seeking partition to their right (share) are declared .

- After above declaration to work out parties right (share ) in final decree  is remain till partition is carried out and final decree is passed .

- In a partition decree unless and until final decree is passed there is no question of any limitation running against right to claim partition as per preliminary decree .

- Question of limitation for execution begins or arose when final decree in partition suit become enforceable .

- S. 54 of  Civil Procedure Code 1908 is relevant in respect of Agricultural Land .

- If decree is in respect of House property or immovable property other than agricultural property then Final Decree of it shall be engrossed on the  non judicial stamp .

- After above engrossment final decree  it became executable for execution for taking possession as per it.

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

- S.2(2) , 54 of C.P.C.and Order 20 Rule  12 , 18 , Order 21 Rule 35 of  C.P.C.

- Article 136 , 137 of The Limitation Act 1963.

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

- Dr. Chiranji Lal (D) by Lrs v/s Hari Das (D) Lrs A.I.R.2005 S.C.2564= 2005 SAR 545.

- Bikoba Deora Gaikwad & Ors v/s Hirabai Marutirao Ghorgare 2008 SAR 704=A.I.R.2009 S.C.(Supp) 454.

- Shub Karan Bubna @ Shub Karan Prasad Bub v/s  Sita Saran Bubna & Ors 2009 SAR 978= A.IR.2009 S.C.(Supp) 2863.

- Venu  v/s Ponnusamy Reddiar (D) through Lrs  & Anr 2017 SAR 772=2017(5) M.L.J.296.

- Engross on non judicial stamp..

.... Shankar v/s Chandrakant Lokhande A.I.R.1995 S.C.1211.

.......Vishwasrao v/s Ushabai A.I.R.1988 Bombay 392.

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Ancestral - Separate/Self-Acquired ...Property

Separate or Self -acquired & Ancestral property .....................Basic requirement ....

                                    

- Basically essential feature  of ancestral property according to Hindu Law is that the sons , grandsons , and great grandsons of the person who inherits it , Acquire an Interest & the Right attached to such property at the Movement of their Birth .

- All property inherited by a male Hindu from his father , father's father or father's father's father  is ancestral property subject to above condition.

- Since 11-08-2020 [ i.e. Vineeta Sharma v/s Rakesh Sharma  Judgement of Supreme Court ] Daughter got right by birth in ancestral property .

- Property which is originally separate or self acquired by operation of Blending i.e. voluntarily thrown into the common stock with intention of abandoning all separate claims upon it  become joint family property .

- Property jointly acquired in business , joint labour of joint family is joint family property .

- Property purchased using nucleus of joint family property is a joint family property .

- No male or female issue acquire any interest by Birth in the Separate or Self acquired property of a Hindu .

- Separate , self acquired property is not liable to partition , but on the death of person intestate , it passes by succession to his heirs .

- Separate / Self acquired  property acquired by income of separate property , inherited from other than father , father's father , father's father's father , gift  will, of separate property , government grant , from separate earning , property held by sole surviving coparcener when there is no widow in existence who has power to adopt .

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

......Provisions of un codified Hindu Law in respect of separate , self acquired ,ancestral , joint family property ...........

--------------- Relevant Judgement .....................

- Shashikant Shripad Pandit v/s Kaustubh Subhash Pandit 2020 Mh.L.J.302.

- Smt. Sheela Rameshrao Deshmukh v/s Amartya Surendra Deshmukh 2020 (2) All.M.R. 497.

- Arshoor Singh v/s Harpal Kaur & Ors 2019 SAR 809= 2019 Mh.L.J.Online (S.C.) 15=2019 ALL SCR 1982.

- Suman Vishnu Pathak v/s Usha Prabhakar Koparkar 2013(7) ALL.M.R.419 = 2013(2) Mh.L.J.268.

- Sarojani Chandrakant Tirhekar v/s Yamunabai Sopan Zol 2007(4) Mh.L.J.830 = 2007(3) All.M.R.428.

- Harinhar Choube vs Govind Choube 2010(4) Mh.L.J.524.

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Effect of Latest Judgement on Hindu Succession Act 2005

 Latest Update of - - - - - - - - - - - - - - - - - - - On - 11-08-2020  - Hindu Succession[Amendment] Act 2005 substituted new section for S.6 of the principal Act (i.e.Hindu Succession Act 1956)...... It's Relevant Effect...................

                              

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      DIARY NO.32601 OF 2018 

VINEETA SHARMA  … APPELLANT(S)

VERSUS 

RAKESH SHARMA & ORS. … RESPONDENTS

WITH  

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020

-The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same

rights and liabilities.

- The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

- The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring

about the actual partition or disruption of coparcenary.   The fiction was only for the purpose of ascertaining share of deceased coparcener

when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female.   The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of son above in pending proceedings for final decree or in an appeal.

- In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.  However, in exceptional cases where

plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a

decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

- on   this above  question,   suits/appeals   are

pending before  different  High   Courts   and  subordinate  courts.   The matters have already been delayed due to legal imbroglio caused by

conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. The pending matters be decided, as far as possible, within six months.In view of the aforesaid discussion and answer, we overrule the views   to   the   contrary   expressed   in  Prakash   v.   Phulavati  and Mangammal v. T.B. Raju & Ors.  The opinion expressed in Danamma @

Suman Surpur & Anr. v. Amar  is partly overruled to the extent it is contrary to this decision..

J.(Arun Mishra).

J.(S. Abdul Nazeer).

J.(M.R. Shah)      

New Delhi:

August 11, 2020.

 -------------------------------------------------------------- Before Above Judgement Legal Position ---------   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

- above amendment come into force since 9 September 2005.

- Since amendment Daughter of joint hindu family governed by Mitakshara law become Coparcener as like Son.

- Also Daughter have same right in coparcenary property since amendment like Son.

-Also Daughter have some liabilities in coparcenary property as like Son since amendment.

-Since amendment Hindu Mitakshara coparcenary include Daughter as coparcener.

-Proviso- any disposition, alienation, partition(registered/effected by decree of court ), testamentary disposition of property which had taken place before 20 December 2004 shall not affect, invalidate due to above Amendment.

-Daughter have right to dispose by testamentary disposition(i.e. by Will) his share in the coparcenary since amendment.

• -A Hindu dies after amendment (i.e 09-09-2005) his interest in the Hindu Joint Family property governed by Mitakshara shall devolve by testamentary or intestate succession as per Amended Act & not by survivorship. & Coparcenary property shall be deemed to have been divided as if partition had taken place .

- Since amendment Daughter is allotted same share as is alloted to a Son.

-Pre deceased Daughter's share alloted to her surviving child.

- Share of predeceased child of pre deceased Daughter shall alloted to child of predeceased child of pre deceased daughter.

- Since amendment no court shall recognise any right to proceed against son,grandson, great grandson, great grand father for recovery of any debt due from his father ............. Solely on pious obligation.... Provided debt before amendment shall not affect.

- Nothing contained in amendment shall apply to partition(registered/effected by decree of court) which has been effected before 20 December 2004.

............. Related Judgement.............

-1) Sadashiv Sakharam Patil v/s Chandrakant Gopal Desale 2012(1) Mh.L.J.2011=2011(5)Bin.CR726

-2) Ganduri Koteshwaramm & anr v/s  Chakiri Yanadi & and 2012(1) Mh.L.J.613=2011(9)SCC 788

-3) Vaishali Satish Gonarkar v/s Satish Keshavarao Gonarkar 2012 (3) Mh.L.J.669=AIR 2012 Bom 110

- 4) Badrinarayan Shankar Bhandari v/s Omprakash Shankar Bhandari 2014(5)Mh.L.J.(F.B.) 434=AIR 2014 Bom 151

- 5) Prakash & ora v/s Phulavati & ors 2016(1)Mh.L.J.(S.C.)1=2016(2)SCC 36

- 6) Danamma alies Suman Surpur & another v/s Amar & others 2018(3) Mh.L.J.451(S.C.)

- 7) Mangamal Thulasi & anr v/s T.B. Raju & ors Supreme Court - Civil Appeal no. 1933/2009- Decided on 19-04-2018.

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

Probate - Is - Required ......?

When Probate Is Required  as per The  Indian Succession Act  1925

.........

                           

Basically  probate is a copy of will certified under seal of competent court for administration of estate of testator .

- Also probate means determination of genuineness and due execution of the will .

- Probate does not determine title of the property of the testator .

- Probate  does not required in case of Will made by Muhammadans or Indian Christians .

- Probate does not required in case of Will made by Hindu , Buddhist , Sikh or Jain  if Property of will is not within territories  or Local Limits  of the  Ordinary Civil Jurisdiction of  High Courts of Judicature at Madras and Bombay .

- Probate is  required in case of Will made by  Hindu , Buddhist , Sikh  or  Jain  Outside the Ordinary Jurisdiction Of above Madras and Bombay High Courts in respect of  Properties situate  within Original Civil Jurisdiction of those High Courts .

- Probate is required in case of will made by Parsi dying after commencement of amendment of Indian Succession Act 1962 in respect of property situate within Ordinary Original Civil Jurisdiction of  the  High Courts at Calcutta , Madras  and Bombay even it's made within or outside jurisdiction .

- District Court or Where powers of District are delegated to Civil Judge Senior Division have jurisdiction in granting and revoking Probate .(IMP :- please kindly peruse or go through CHAPTER - XIV i. e. 14 of Civil Mannual )

- Petition for Probate shall be verified by at least one of the Witness to the Will.

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

- - S.2(f) , 57, 213, 264, 276 , 280 , 281 of The Indian Succession Act 1925.

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

- Jyoti v/s State of Maharashtra 1979 Mh.L.J. 307.

- Vishnu Ramachandra Undage v/s Ganpati Ramachandra Undage 2005(4) Mh.L.J.1108.

- Ganapati  Narayan Nikam v/s Ramachandra  Bhiku Sawant 2009(6) Mh.L.J. 948.

- Shewantabai Bhagat v/s Arun Bhagat 2011(3) Mh.L.J. 136.

- Ramachandra Hande v/s Vithalrao Hande 2011(4) Mh.L.J. 50.

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

Nominee & Succession Certificate.. ..Provision

Nominee ............. Nomination.......... Succession Certificate................ Related legal provision........

                                    

- In general a person may nominate any person as   his nominee in service record , bank insurance record .......Etc.      

- Basically nominee is nothing but trustee of person who nominated him as his nominee.

- Nominee is a person to collect property of a person who nominated after his death.

- Nomination does not confer any beneficial interest on the nominee.

- Nominee is entitle to receive the property of the deceased but the same are to be distributed according to the Law of Succession which is applicable to deceased.

- Nominee does not confer any legal right of Succession of a person who nominated as nominee on the nomination.

- But nominee can file an application for succession certificate & receive property of deceased but same shall be distributed according to Law of Succession.

- In case of nominee is other than Legal Heir of deceased , the Legal heir of deceased can claim property of deceased in accordance with the Law of Succession.

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

....S.372 of Indian Succession Act 1925.

... Law of succession e.g. Hindu Succession Act, Indian Succession Act, Succession in Mohammedan Law ..Etc

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

- Shipra Sengupta v/s Mridul Sengupta & Ors 2009 SAR 875.= 2009(6) All.M.R.486.

- Vidhyadhari v/s Sukhrana Bai 2008(3) Mh.L.J.(S.C.) 1

- Antonio Joaofernandes v/s Assistant Provident Fund Commissioner Goa 2010(4) Mh.L.J.751.

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

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 ......