Ancestral Property - Mitakshara Law

Ancestral Property.........mitakshara law....!

                                  

- Basically property inherited from parental ancestor is ancestral property.

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

- Essential feature of ancestral property to Mitakshara law is that the son, grandson and great grandsons of person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.

- Share allotted on partition of ancestral property is ancestral property as regards to his male issue.(prior to amendment of 2005 in Hindu Succession Act 1956)

- But property inherited from maternal grandfather is not ancestral property.

- Property inherited from females is not ancestral property.

- Also property inherited from collaterals such as a brother, uncle, etc or from a female like mother is not ancestral property.

- Property acquired by adverse possession by father is not ancestral property.

= = Relevant Provision = = =

- Uncodified Hindu Law para on Ancestral Property.

- - - Relevant Judgement - - - -

.. Shyam Narayan Prasad v/s Krishna Prasad and Ors 2018 SAR 895.

...Arshnoor Singh v/s Harpal Kaur & Ors 2019 SAR 809.

... Valliammai Achi v/s Nagappa Chettiar A.I.R.1967 S.C.1153.

... Janarethbee v/s Pralhad A.I.R.1978 Bom 229.

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Firm Of 2 partner Dissolution

-Partnership .... Firm  of  2 partners  ....Dissolution  

                              

- Basically partnership  firm must have at least 2 partners. 

- If partnership firm have only 2 partners and 1 has  agreed to retire,  then the retirement amounts to dissolution of the firm. 

- Retirement of a partner and dissolution of a partnership firm are different to each other. 

- In retirement reconstituted firm and retiring partner is to be paid his dues.

- In dissolution accounts have to be settled and distributed as per the mode. 

= = Relevant Provision = =

- Partnership Act 1932

- - - Relevant Judgement - -  - -

- Guru  Nanak Industries,  Faridabad  and Anr v/s Amar Singh (Dead) Thr. Lrs. 2021 SAR 183.

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Trust Property - Suits

- Suit by or against - Trustees , Executors  & Administrators....

                                    

 Property Suits

- Basically suits concerning property of trust shall be filled by all trustee.

- Basically suits of trust property all trustee shall be joined as either plaintiff or defendant.

- Also as per provision of Maharashtra (Bombay) Public Trusts Act 1950 in some suit of trust property permission of Charity Commissioner is required for filing suit.

- But suit against trespassor above permission is not required.

- Also suit against third person for injunction in respect of trust property above permission is not required.

= = Relevant Provision = = =

- Order 31 of C.P.C.

- Section 50 & 51 of Maharashtra Public Trust Act 1950.

- - - Relevant Judgement - - 

- Nagar Wachan Mandir v/s M/s Akbarali Abdul Hussain & Sons 1993 Bom. C.J.810 = 1994 (1) M.L.J.280.

- Shri Cutchi Visa Oswal Derawasi Jain Pathshala v/s Shri Cutchi Visha Oswal Derawashi Jain Mahajan 2005(1) All.M.R.484 = 2005(1) Bom.C.R.105.

- Gafoor Ali Hussain v/s Ram Mahadik 2000(1) M.L.J.436.

- Pandurang S.Patil v/s Nanded Parsi Anjuman Trust 2011(1) M.L.J.524 = 2010(6) All.M.R.557.

- Yamunabai Dhankude v/s Shri Raosaheb Mohanlal Chinmanlal Maniyar Trust 2012(2)M.L.J.55 = 2012(1) All.M.R.622.

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Civil Suit Power of Attorney.....

Power of Attorney  - - - - - Civil Suit........!

                                      

- Power of attorney means any instruments empowering a specified person to act and in the name of the person executing it.

- The donee of power of attorney execute any instrument by the authority of the donor of the power.

- Every instrument executed by donee binds on the donor of power of attorney.

- Power of attorney holder can appear , apply and act in any court on behalf of donor but he cannot depose in the witness box in the places of donor in respect of matter which the donor have personal knowledge.

- But power of attorney may depose in respect of which he have personal knowledge of act of donor.

- Compromise , agreement entered by power of attorney is bonding on the donor of power of attorney.

= = = Relevant Provision = =

- The Power Of Attorney Act 1882.

- Order 3 of C.P.C.

= = Relevant Judgement = =

-Janaki Vashdeo Bhojwani and Anr v/s Indusind Bank Ltd and Ors A.I.R.2005 S.C.439.

- Man Kaur (Dead) by Lrs v/s Hartar Singh Sangha 2010 SAR 966 = 2010 AIR SCW 6198.

 

- S. Kesari Hanuman Goud v/s Anjum Jehan and Ors 2013 AIR SCW 3561 = 2013 SAR 504.

- Y. Sleebachen etc v/s Superintendent Engineering WRO/PWD & Anr 2014 AIR SCW 4898 = 2014 SAR  909.

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Transferee - Specific Performance Suit

Transferee & Suit for Specific Performance...........

                                   

- In suit for specific performance of agreement to sell transferee is necessary party to suit.

- Even though a transferee to whom the subject matter of a agreement of sale or part thereof is transferred is a necessary party to suit for specific performance.

- Such transferee must be impleaded in suit before the suit becomes time barred against him.

 = = Relevant Provision = = = 

- Section 19 of The Specific Relief Act 1963.

- Order 1 Rule 10 of C.P.C.

- Article 54 of The Limitation Act 1963.

- - - Relevant Judgement - - - -

- B. Santoshamma & Anr v/s D. Sarala & Anr 2020 S.A.R.1131.

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Tender Bidders ... Rights

Tender.............. Bidders .......... Right.......!

                                    

- Basically qualified bidder may take part in the tender.

- Bidder cannot insist that their tenders should be accepted simply because a given tender is highest or lowest depending upon contract.

- The authority publishing the tender is bound to adhere to the essential terms , norms , standards and procedures laid down by it and cannot depart or deviate from the arbitrarily much less giving relaxation.

- The authority is also free to grant any relaxation for bona fide and cogent reasons.

- The court can not generally review decision of tender .

- But the court may review decision of tender if decision maker acted improperly , for benefit of any particular renders or class of tenders.

- - - Relevant Provision - -

- Section 3 to 9 [i.e.Chapter 1 ] of The Indian Contract Act 1872.

= = = Relevant Judgement = = 

- Jalgaon Golden Transport Pvt.Ltd. v/s Union of India and Others 2020(6) Mh.L.J.532.

 - In which 18 judgements are referred most of referred judgements are of Supreme Court

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Document Referred in Cross Examination...?

Document Referred in Cross Examination...... Exhibit.......Proof of Contents....!

                                     

                  

- Basically mere referring of document during cross examination does not mean it is admitted to the party referred it in cross examination.

- Even though it is not a law that document referred in cross examination shall be exhibited by court.

- But in many States it is a consistent practice followed by court that when a document is referred in cross examination to witness , it be exhibit.

- The above practice is for convenience and for purpose of locating , identifying the document referred in cross examination.

- In such case mere marking a document as exhibit by such process does not dispense with the requirement of proof of the execution , contents , genuineness of the document in accordance with the law of evidence.

- Also it's settled position of law that mere exhibition of document doesn't dispense with proof it's contents.

-Mere a fact has not been disputed in cross examination does mean it's an admitted fact.

= Relevant Provision =====

- Chapter IV and V of The Indian Evidence Act 1872.

_ _ _ Relevant Judgement _ _ _ _ 

- Geeta Marine Services Pvt. Ltd. and another v/s State and another 2009(2) Mh.L.J.410.

- Abdul Rahim Majid v/s Shaikh Q. Rashid 2010 (1) Mh.L.J.343.

- Usha Shrikant Rege v/s Gauri Gajanan Rege 2014 (6) Mh.L.J.781.

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Defendant Died Prior to Suit - Remedy

- Defendant Died - Prior to filing of - Suit......... Remedy..................?

                                      

- Basically in case of death of one of several defendants or of sole defendant after filing of suit procedure / provision of taking legal heir/representative is provided in C.P.C.

- But if in case of death of defendant/defendants prior to filing of suit no provision is provided in C.P.C.

- In the case of death of defendant prior to filing of suit plaintiff may file an application for Impleadment of legal representative of deceased defendant as they are necessary party in order to enable court to effective and completely adjudication , settle all the questions involved in the suit.

-In such above case even application for taking legal heir on record is rejected is no bar to file application for impleadment of legal representative of defendant expired prior to filing suit.

- In such case court to take into consideration bona fide mistake , necessity of party .

- Above application may be filled at any stage of the suit.

- Basically it's not required to mention provisions in the application as per Law. But it's well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice.

= = Relevant Provision = = =

- Order 22 Rule 4 of C.P.C.

- Order 1 Rule 10 of C.P.C.

_ _ _ Relevant Judgement _ _ 

- Pankajbhai Rameshbhai Zalavadiya v/s Jethabhai Kalabhai Zalavadiya (Deceased) Through LRS  & Ors 2018 SAR 1. 

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Decree of Permanent Injunction - Execution........?

... Permanent Injunction Decree and it's execution against legal representative , transfree of Judgement Debtor.......? 

                                     

- Basically decree be executed as per mode provided in order 21 rule 30 to 36 of C.P.C.1908 against judgement debtor , legal representative , transfree of judgement debtor.

- But like maxim " action personalis moritur cum persona " in certain cases  personal action dies with the person has limited application like as actions for damages , assault or other personal injury not causing the death of the party.

- Normally a decree for injunction normally does not run with the land.

- Injunction decree relating to property or right which is heritable and partible may be executed against legal heir of judgement debtor , transfree of judgement debtor.

- Decree for injunction can be executed at any time till it's satisfaction , means it have no limitation.

- In enforcement of injunction decree a judgement debtor can be either be put in civil prison or his property can be attached or both .

= = = Relevant Provision = =

- Section 50 , 146 , Order 21 Rule 16 , 32 , of C.P.C.1908.

- Article 136 of The Limitation Act 1963.

_ _ _ Relevant Judgement _ _ _ _

- Prabhakara Adiga v/s Gowri & Ors  A.I.R.2017 S.C.1061 = 2017 SAR 405.

- Yashodabai G. Naik Gaunekar v/s Gopi M. Naik A.I.R. 2003 Bom 77 = 2002(3) Mh.L.J.801.

- Mohd.Osman s/o Pir Sab v/s Devid (Dr) s/o P.D.F. Sundersingh 2011(3) Mh.L.J.227.

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Mutual Consent Petition & Withdraw of Consent....... Effect

... Divorce petition by mutual consent..... Withdraw of consent by by spouse ..... Effect..... ?

                                 

        

- Consent petition for divorce by parties to marriage  may be filled on ground that they have been living separately for a period of 1 year or more and they have mutually agreed that the marriage should be dissolved.

 

- From the date of filling of petition within 18 months the court may pass decree of divorce but not later 18 months.

- Basically consent of both spouse is required till passing of decree by court.

- But no spouse can unilaterally , willfully be allowed to withdraw consent even on the grounds such as fraud , undue force , representation unless grounds are provided satisfactorily.

- If one party of mutual consent petition acted as per terms and condition of settlement, consent terms then other party is not liberty to withdraw consent without reasonable, sufficient ground, reason.

- In such case rule of estoppel is applied for equity , fairness and aid the administration of justice.

= = Relevant Provision = = =

- Section 13(B) of Hindu Marriage Act 1955.

_ _ _ Relevant Judgement _ _ _ _

- Rakesh P. Sainani v/s Mrs. Bhavna R. Sainani 2008(6) Mh.L.J.853.

- Anil Kumar Jain v/s Maya Jain A.I.R.2010 S.C.229=2009 SAR 942.

- Prakash A. Kalandari v/s Janhavi P. Kalandari 2011(4) Mh.L.J.187.

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Legal - Representative ... Determination...!

Legal Representative......?

                                 

- Means a person who in law represents the estate of deceased person and include any person who inter meddle with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

- When question as to legal representative arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant , such question shall be determined by the court.

- If such question arises before an Appellate court , that court may before determining the question , direct any subordinate court to try the question and to return the records with evidence if any recorded at such trial its finding and reasons therefor and Appellate court may take the same into consideration in determining the question.

- Determination of legal representative is a summary procedure which is for limited purpose .

- Such determination will not confer any right to the property which is subject matter of the suit.

- Legal representative is appointed for orderly conduct of the proceeding. 

- Such determination could not take away for all times to come the rights of a rightful heir of the deceased in all matters.

- Such determination does not operate as res-judicata.

- A person who represents estate of deceased person through legal document like will...............Etc may apply for it. 

- Limitation for taking Legal representative on record 90 days.

- After above period 60 days is limitation for setting aside abatement.

- After above period Delay will start.

- No period of limitation for bringing Legal heirs on record in Execution of Degree or Order ( means Darakhast ).

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

- Section 2(11) , Order 22 Rule 5 , 12 of Civil Procedure Code 1908.

- Article 120 , 121 of The Limitation Act 1963.

 _ _ _ Relevant Judgement _ _ _ _ 

Jaladi Suguna (D) through Lrs v/s Satya Sal 

Central Trust & Ors A.I.R.2008 S.C.2866.

- Sudesh Kumar Bansal v/s Krishna Bansal AI.R.2010 S.C.344.

- Dashrath Rao Kate v/s Brij Mohan Srivastava A.I.R.2010 S.C.897.

- Varadarajan v/s Kanakavalli 2020 SAR 388.

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Alienation/Transfer during Injunction - - - - - effect

... Alienation/ Transfer of immovable property during injunction order .......?

                                  

- Basically mere pendency of any suit does not affect alienation/transfer of suit property.

- But any alienation/transfer of suit property in violation injunction order or prohibited order issued by court confers no right , title , interest in the transferee.

- Such transfer is not transfer at all in eyes of law.

- In such transfer transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to suit/proceeding in which injunction/prohibitory  is issued by court

- Such transfer must not be upheld and such transfer is rendered illegal , it is not transaction at all.

=== Relevant Provision ==

- Section 52 of Transfer of Property Act 1882.

- Order 39 of Civil Procedure Code 1908.

_ _ _ _ _ Relevant Judgement _ _ _ _

- Keshrimal Jivji Shah v/s Bank of Maharashtra 2004(3) All.M.R.214= 2004(3) Mh.L.J.893.

- Kachhi Properties , Satara v/s Ganpatrao Shankarrao Kadam and others 2010(5) Mh.L.J.903.

- Prahlad Jaganath Jawale and others v/s Sitabai Chander Nikam and others 2011(4) Mh.L.J.137.

- 

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Transfer/Clubbing-Consolidation of Suits

Transfer of Suit and Clubbing/Consolidation of Suit...

                                     

- Generally court may not transfer suit from one court to another court.

- In many cases litigants entertain the apprehension that they would not get a fair trial on a flimsy , unreasonable irrational grounds which are not encouraged by the courts in dealing with transfer applications.

- The court requires it's own satisfaction that there are some grounds on which the apprehensions of the litigant may be regarded as reasonable one.

- The court has to take into consideration that not only the litigant but also the public at large must have the necessary and implicit faith in in the system of administration of justice.

- Clubbing or Consolidation  of   suits may be done by court in which all suits are connected with each other.

- Clubbing/Consolidation done to avoid conflicting judgements on same issues and also to save time , costs , repetition , of procedures.

===== Relevant Provision ===

- Section 24 , 25  & 151 of C.P.C. 1908.

_ _ _ _ _ Relevant Judgement _ _ _

- Crulshank Co. Ltd. v/s B.D.A.Ltd.& ors 1993 Bom.CJ 633.

- Mahabir Prasad  Sing v/s M/S Jacks Aviation Pvt. Ltd. A.I.R.1999 S.C.287.

- M/S Chitivalada Jute Mills v/s M/S Jaypee Rewa Cement A.I.R.2004 S.C.1687.

- Mahalaxmi Coop.Hous.Soc.Ltd. & Etc. v/s Ashabhai Atmaram Patel (D) Tr.Lrs. & Ors A.I.R.2013 S.C.961.

-B.Santoshamma &/Anr v/s D.Sarala & Anr 2020 SAR 1131.

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Widow - Re - Marriage ....?

.... Widow - Re-Marriage............ Effect....?

                                  

- If Hindu widow remarrying after death of her husband without any partition of her share in the property inherited by her after death of husband , she will not get any right in joint family property of her deceased husband and brother.

- But Hindu widow prior to re-marriage filed suit for partition and separate possession of her share which she entitled after death of her husband  , such suit is decreed or prior to re-marriage her share was separated by a partition between members of family then after re-marriage by widow share acquired by her can not be divested to her previous family. But she be come exclusive separate owner of the same property.

- Hindu Widows Remarriage Act 1856 allow the widow to re- marriage after death of her husband. Prior to the said act re marriage is prohibited.

- Relevant Provision - - - - - -

- Old uncodified Hindu Law in respect of widows remarriage.

- Hindu Widows Remarriage Act 1856.

= = = Relevant Judgement = = = =

- Ram Swaroop and Anr v/s Mahindru and Ors 2004 SAR 207.

- Velamuri Venkata Sivaprasad (dead) by Lrs v/s Kothuri Venkateswarlu (dead) by Lrs & Ors A.I.R.2000 S.C.139 = 2000 SAR 102.

- Sitbai Narayan Rakshe @ Sitabai Gangaram Shete v/s Hari Laxman Rakshe and another 2012 Mh.L.J.678.

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Sale - Consideration.......?

.... Sale ..... Non payment of part of sale Price/Consideration.....?

                                      

-  Sale is a transfer of ownership in exchange for price/consideration paid or promised or part-paid and part-promised .

- Sale of immovable property of value of 100 rupees and upwards can be made only by registered instrument.

- Seller bound to disclose to buyer material defect in the property , produce on request of buyer all documents of title of his property, answer relevant questions put by purchaser in respect of title of property, on payment/tender of amount in respect of the price to execute conveyance of property , deliver possession of property and all documents of title of the property , pay all public charges and rent dues in respect of the property also discharge all encumbrances on the property existing.

- Buyer is bound to disclose extent of his interest in the property , pay or tender at the time of completing the sale the purchase money to seller. 

- Basically non payment of a part of the sale Price/Consideration is not ground to invalidate sale means it does not affect the validity of the sale.

- Seller have remedy in law for recovery of the balance consideration/price.

- Even though inadequacy of the consideration/price is not ground to invalidate sale.

- But sale without consideration is void.

_ _ _ _ Relevant Provision _ _ _

- Section 54, 55 of The Transfer Of Property Act 1882.

- Section 25 of The Indian Contact Act 1872.

 = = = Relevant Judgement = = 

- Vidhyadhar v/s Mankikrao & Anr A.I.R.1999 S.C.1441(I st Suppl) = 1999 SAR 443.

- Dahiben v/s Arvindbhai Kalyanji Bhanusali (D) Thr Lrs & Ors 2020 SAR 793.

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Adoption . . . Object.. Requirement....!

Adoption....... Object....... Requirements........ Etc

                                       

- Basically object of adoption is religious to secure spiritual benefit to the adapter and for purpose of offering funeral cakes , libations of water to the soul of the adopter and his ancestor. Also to secure an heir and perpetuate the adopter's name.

- Devolution of property of adopter is only secondary object of adoption.

- It means object of adoption is for religious and secular.

- Requisites of adoption , Capacity of a male/female Hindu to take in adoption , Persons capable of giving in adoption , Person who may be adopted , Other conditions for valid adoption are mentioned in Section  6 to 11 of The Hindu Adoption & Maintenance Act 1956.

- After adoption all ties of adoptive child in his natural family severed and replaced in adoptive family in all respect.

- Valid adoption not to be cancelled.

- Receiving payment , rewards are prohibited in adoption.

- For valid adoption basically consent of both parents as well as ceremony of actual giving and taking in adoption are required conditions.

- A widow can not adopt if her pre deceased so leaving his widow.

- Property vested in adoptive child before his adoption shall continue to vest in subject to obligation if any attaching to it . Such vested property does not divest to his natural family.

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

- The Hindu Adoption & Maintenance Act 1956.

- The  Uncodified Hindu Law provisions of adoption.

= = = = = Relevant Judgement = = = =

- M. Vanaja v/s M. Sarla Devi (dead) 2020(5) Mh.L.J. 507.

-Ghisalal v/s Dhapubai A.I.R.2011 S.C.644 = 2011 SAR 162.

- Laxmibai Thur v/s Bhagwanthbuva Thur A.I.R.2013 S.C.1204 = 2013 SAR 243.

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Partition-Family-Settlement-Relinquish- Registration

--- Registration - Partition, Family Settlement, Relinquish----

                                   

- Basically as per registration act every document which is creating or extinguishing right , title , or interest in immovable property of value of one hundred rupees and upward is require registration.

- But memorandum of  family settlement of oral partition already arrived at and acted upon by family members does not require registration.

- Even though family arrangement may be oral in such case no registration is necessary.

- After family settlement family members are estopped from denying if  it's bona fide , equitable and not be induced by fraud , coercion , undue influence.

- The basic object of family settlement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.

- Oral relinquishment/surrender of share in a joint family property is valid.

- The registered document operates from the date of execution , not from the date of registration.

- If any document required registration as per registration act but not registered shall not be admissible in evidence .

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

- Section 17, 19 of Indian Registration Act 1908.

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

- Gangadhar P. Harde v/s Uttam P. Harde 2008 (2) Mh.L.J.334 = 2008(3) All.M.R.152.

- Principal Secretary , Government of Karnataka and Another v/s Ragini Narayan and Another A.I.R.2016 S.C.4545 = 2017 SAR 72 .

- Subraya M.N. v/s Vitthala M.N. A.I.R.2016 S.C.3236 = 2016 SAR 772.

- Yellapu Uma Maheswari v/s Buddha Jagadheeswararao 2016 SAR 226 .

- Ravindra Karu Grewal & Ors v/s Manjit Kaur & Ors 2020 SAR 839.

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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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