APPRECIATION OF EVIDENCE IN CIVIL CASES


THE CONCEPT OF ‘PREPONDERANCE OF PROBABILITIES’:
How a fact is to be proved in Civil case?
The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane, 1975 AIR 1534. This is for rthe reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probabble that a prudent manought, under the circumstances of the particular case, to act upon the supposition that it exists.
The belief regarding the existence of a fact that thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if no weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact.

As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities , the second to weigh them though the two may often intermingle. The impossible is weeded out at the first stage , the improbable at the second.
Withing in the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.

Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on promissory note ” the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfication of the truth of the issue.
1. The degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear.”— Lord Denning.

2. But whether the issue is one of cruelty or of a loan on promote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved.

3. IN civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

ADMISSIONS IN CIVIL CASES:
Order 8 Rule 5 CPC:
Order XII Rule 6 CPC:
Order XV Rule 1 CPC : (Judgment on admissions)
In case R.K. Markan vs. Rajiv Kumar Markan, 2003 AIHC 632 (633) Delhi, wherein it was observed as under :-“For passing a decree on the basis of admission of the defendants in the pleadings, law is well settled that the admission has to be unequivocal and unqualified and the admission in the written statement should also be taken as a
whole and not in part….”

It was also observed in case Razia Begum v. Sahebzadi Anwar Begum, 1958 SC 886 that order 12 Rule 6 should be read along with proviso to Rule 5 of Order 8 CPC. In this case it was observed that the court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant, if the court has reason to insist upon a clear proof apart from admissions. See also : Uttam Singh Dugal and Co. Ltd. vs. United Bank of India 2000 (4) R.C.R. (Civil) 89; M/s Puran Chand Packaging Industrial Pvt. Ltd. vs. Smt. Sona Devi and another, 2009 (2) C.C.C. 39.

APPRECIATION OF DOCUMENTARY EVIDENCE IN CIVIL CASE:-
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY, in P.Madhusudhan Rao vs Lt.Col.Ravi Manan, CIVIL REVISION PETITION NO.4515 OF 2014, Date of judgment on12-03-2015, clearly illustrated the rules for interpretation of a document with an aid of rulings of the Hon’ble Supreme Court of India.
The Supreme Court in Delhi Development of Authority Vs. Durga Chand, 1973 AIR 2609 has also noticed Odgers Rules and quoted them with approval and as the observation of the Supreme Court have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India.

These Rules are listed hereunder:
1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
2. The intention may prevail over the words used
3. words are to be taken in their literal meaning
4. literal meaning depends on the circumstances of the parties
5. When is extrinsic evidence admissible to translate the language?
6. Technical legal terms will have their legal meaning.
7. Therefore the deed is to be construed as a whole. Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:
8. Same words to be given the same meaning in the same contract.
9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
10. Contra Proferendum Rule-If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative
12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
13. the special will exclude the general
14. Rule of expression unius est exclusion alterius
15. Rule of noscitus a sociss
16. Ejusdem generic rule will apply both the contract and statute
17. place of Punctuation in interpretation of documents

From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention. (As to appreciation of documentary evidence in civil case, also See: Avadh Kishore vs. Ram Gopal, AIR 1979 SC 861; Collector, Raigarh vs. Harisingh Thakur, AIR 1979 SC 472.)

Order 13 Rule 4 sub rule 1 CPC:
Admission of documents under Order 13 Rule 4 of Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof.
Case law:- Ferozchin Vs. Nawab Khan, AIR 1928 LAHORE 432.
Hari Singh Vs. Firm Karam Chand, AIR 1927 Lahore 115
Sudir Engineering Company Vs. Nitco Roadways Ltd, 1995 (34) DRJ 86

1. Mere admission of document in evidence does not amount to its proof.
2. Admission in evidence of a party’s document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of section 36 of Stamp Act.
3. But, the right of a party disputing the document to argue that the document was not proved will not be taken away merely because it had not objected to the admissibility of the document. The most constructive example is of a Will. It is a document required by law to be attested and its execution has to be proved in the manner contemplated by Section 68 of the Evidence Act read with Section 63 of the Succession Act.
4. ‘Admission of a document in evidence is not be confused with proof of a document’.
5. Sait Taraj Khimechand Vs. Yelamarti Satvam:- The mere marking of an exhibit does not dispense with the proof of document.

Two stages relating to documents:-
1. One is the stage when all the documents on which the parties rely are filed by them in Court.
2. The next is when the documents formally tendered in evidence.
See:- Baldeo Sahal Vs. Ram Chander &Ors, AIR 1931 Lahore 546.

APPRECIATION OF EVIDENCE
IN A SUIT BASED ON PROMISSORY NOTE:
Scope of The Presumption: Burden Of Proof In Promissory Note Cases:
The Hon’ble Supreme Court in Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [AIR 1961 SC 1316], speaking through his lordship K. Subba Rao, J. considering the scope of the presumption had laid down the law thus:

“Section 118 lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable or endorsed for Consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The phrase “burden of proof” has two meanings- One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleading and so unchanged during the entire trial whereas the latter is not constant but shifted as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be directed evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was reflected for a particular consideration should produce the said account books. If such a relevant evidence is withheld by the plaintiff, S.114, Evidence Act enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instrument Act.”

See important ruling on Promissory notes: G. Vasu vs Syed Yaseen Sifuddin Quadri: Citation: AIR 1987 AP 139

APPRECIATION OF EVIDENCE
IN A SUIT FOR DECLARATION
AND CANCELLATION OF DOCUMENT:-

In Civil Appeal Nos. 2811-2813 OF 2010, [Arising out of SLP [C] Nos.6745-47/2009], Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors, the Hon’ble Supreme Court of India held as follows:-
”where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A’ and `B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17 (iii) of Second Schedule of the Act. But if `B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section7 (iv) (c) of the Act. Section7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section7.”

COUNTER CLAIMS IN SUIT:
In the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani which may be of some relevance. Upon considering the ratio of earlier cases in the case of Sangaram Singh Vs. Election Tribunal, Kotah AIR 1955 SC 425, Arjun Singh Vs. Mohindra Kumar AIR 1964 SC 993 andLaxmidas Dayabhai Kabrawala Vs. Nanabhai Chunilal Kabrawala AIR 1964 SC 11, it was held that a right to make a counter claim is statutory and a counter claim is not admissible in a case which is admittedly not within the statutory provisions. It is further observed that :
“Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter- claim against the claim of the appellant preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter- claim may be filed by way of a subsequent pleading under Rule 9.
See:- Nanduri Yogananda Lakshminarasimhachari Vs. Sri Agastheswaraswamivaru AIR 1960 SC 622; and Civil Appeal No..6344 OF 2009 in Gayathri Womens Welfare Association vs. Gowramma & Anr;

Relinquishment of Claim under Order II Rule 2 & ‘Res Judicata’ :
The Supreme Court in Alka Gupta vs. Narender Kumar dealt with the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 while also dealing with the concept of ‘Res Judicata’. The Court further held that a suit cannot be dismissed by the Courts simply because they are dissatisfied with the conduct of the Plaintiff.
A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the defendant to that effect and in the absence of an issue thereon.

 A suit cannot be dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff.

See rulings: Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810]; Greenhalgh v. Mallard [1947 (2) All ER 257]; Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra [1990 (2) SCC 715]; Forward Construction Co. v. Prabhat Mandal [1986 (1) SCC 100);

RE-OPENING EVIDENCE AND
INHERENT POWERS OF THE COURT :
The Supreme Court in K.K. Velusamy v. N. Pallanisami has examined the power of the Courts with regard to re-opening the evidence and recalling witnesses. The Court while examining the relevant provisions of the Code of Civil Procedure, 1908 has culled out the principles for invoking the inherent powers of the Court.
The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate – 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

The Hon’ble Apex Court however agrees that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See :Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal – AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar – AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal – AIR 1966 SC 1899;Nain Singh vs. Koonwarjee – 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India- AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi – AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara – 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj – 2010 (8) SCC 1). We may summarize them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

A CIVIL SUIT BASED ON WILL – APPRECIATION OF EVIDENCE – HOW TO PROVE A WILL?
In Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, the Honourable Apex Court held that as follows;
“There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the Court has taken note are (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2)Shaky signature; (3)A feeble mind which is likely to be influenced; (4)Unfair and unjust disposal of property. Suffice it to say that no such circumstances are present here.”

In Apoline D’ Souza v. John D’ Souza [(2007) 7 SCC 225], the Hon’ble Supreme Court held that the question as to whether due attestation has been established or not will depend on the fact situation obtaining in each case. Therein, it was held :
” Section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement.”
“In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.”

APPRECIATION OF EVIDENCE IN A SUIT BASED ON GIFT DEED:-
What factors are to be appreciated in a suit based on Gift deed under Hindu Law?
i) Relinquishment of one’s proprietory right in the property. Yet it should be without any consideration.
ii) Merely registering the gift deed does not afford to pass the title of the property.
iii) Creation of right of any person must be completed by acceptance.
iv) A gift is totally different from a surrender by a Hindu widow where she does not in fact or in law purport to transfer any interest in the property surrenders.
v) In addition to that in the case of Karunamoyee vs Maya Moyi, it was observed that the widow simply withdraws herself from the estate and the reversioner steps into the inheritance as a matter of law.”
vi) Yet, in the case of Narbada Bai vs Mahadeo, it was held that in case of transfer of the whole estate, the reversioner takes the same subject to the liability for her maintenance. It is thus vividly known that the reversioner is responsible for her debts, if she relinquishes the same.
vii) Where delivery of possession is enough to complete the transaction of a gift, is abrogated under section 123 of the Transfer of Property Act. However, the restrictions on power to enter into the transaction of gift under personal law exist without any change.
See:- 1. Giano vs Puran And Ors.,AIR 2006 P H 160; 2. Ramjeet Mahto And Ors. vs Baban Mahto And Ors. ,2003 (4) JCR 268 Jhr; 3. Smt. Takri Devi vs Smt. Rama Dogra And Ors., AIR 1984 HP 11.

APPRECIATION OF EVIDENCE
IN SUITS BASED ON GPA / SALE AGREEMENT/ WILL:
Validity of Sale by Execution of General Power of Attorney / Agreement to Sell / Will :
The Supreme Court in an order passed in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. has discussed the ill effects of transfer of property by means of a General Power of Attorney / Will / Agreement to Sell, and the practical problems the same is causing.

By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt.Ltd. vs. State of Haryana & Anr. – 2009 (7) SCC 363], the Hon’ble Apex Court had referred to the ill – effects of what is known as General Power of Attorney Sales (for short `GPA Sales’) or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL’ transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money’) and to avoid payment of `unearned increases’ due to Development Authorities on transfer.

Scope of an Agreement of sale:-
Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:

A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293.

Scope of Power of Attorney:-
A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata- 2005 (12) SCC 77, this Court held :
“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

Scope of Will:-
A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

APPRECIATION OF EVIDENCE IN A SUIT FOR PARTITION:
Presumption of Joint Hindu Family :
The Supreme Court in Appasaheb Peerappa Chandgade vs Devendra Peerappa Chandgade has ruled on the presumption regarding joint family property under the Hindu law. The Supreme Court after considering various precedents on the subject, held that there is no presumption of joint family property, and whoever alleges the existence of the same must prove it through evidence. The Supreme Court further added that if it is shown that the properties were acquired out of the family nucleus, the initial burden is discharged by the person who claims joint Hindu family, and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.

In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors., their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors.

Similarly, in the case of Achuthan Nair v. Chinnammu Amma and Ors., their Lordships held as follows:
Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.
Also see:- Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors.,; Surendra Kumar v. Phoolchand (dead) through LRs and Anr.

Family Arrangement : Essentials :
In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property ‘It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently. In Lala Khunni Lal & Ors. v. Kunwar Gobind Krishna Narain and Anr.(1) the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council.

DEVOLUTION OF PROPERTY UNDER S. 8 OF THE HINDU SUCCESSION ACT : WHETHER JOINT OR SELF ACQUIRED PROPERTY?
The Supreme Court in a subsequent judgment entitled Yudhishter vs. Ashok Kumar reported as AIR 1987 SC 558. In the aforesaid judgment, it was held as below:
“10. This question has been considered by this Court in Commr. Of Wealth Tax. Kanpur v. Chander Sen (1986) 3 SCC 567; (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father‟s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. ………… This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. ……… In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellant authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house.” (emphasis added)
See:- in Pratap v. Shiv Shanker has recapitulated the law relating to the devolution of property under S. 8 of the Hindu Succession Act. While following the dicta laid down by the Hon’ble Supreme Court of India, the Court held that property devolving under S. 8 of the Hindu Succession Act would be self acquired property of an individual vis-a-vis his sons.

RIGHT TO PROPERTY OF AN ILLEGITIMATE CHILD :
The Supreme Court in Revanasiddappa & Anr. vs Mallikarjun & Ors. has examined the question whether an illegitimate child is entitled to a share in coparcenary property or his share is only limited to the self-acquired property of his parents under Section 16(3) of the Hindu Marriage Act? While examining the various judicial pronouncements on the subject the Court took a different view from earlier decisions and has accordingly referred the matter for reconsidered by a larger Bench of the Court.

DEVOLUTION OF COPARCENARY PROPERTY TO HINDU FEMALES :
The Supreme Court in Ganduri Koteshwaramma Vs. Chakiri Yanadi has discussed the law relating to intestate succession by Hindu females and the effect of the amendment to the Hindu Succession Act. While dealing with the effect of the amendment in the Hindu Succession Act, in a suit for partition of ancestral property, the Supreme Court has observed as under;
” 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law….” (See:- The statement of objects and reasons of the 2005 Amendment Act).”

SUIT FOR PERMANENT INJUNCTION:
As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as the Act), a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. The defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an – act which would be contrary to the right of the plaintiff. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of Section 38 in clauses (a), (b), (c) and (d) further illustrates the circumstances where a perpetual injunction may be granted by the Court. The mandatory injunctions are contemplated under Section 39 of the Act where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts. Section 40 provides for granting damages in lieu of or in addition to injunction. Section 41 provides circumstances where the injunction should be refused. Section 42 provides for grant of injunction to perform a negative agreement. It was made clear at the beginning that the Law of Injunction is vast and expansive jurisdiction and It forcefully illustrates the power of equity in spite of the fetters of codification to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of the humanity.

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2 Comments (+add yours?)

  1. jayasankar medi
    Jul 06, 2016 @ 13:19:31

    Thank you very much to you sir, I learned a lot by reading this article.
    jayasankar, advocate

    Reply

  2. Mohammad shahid
    Aug 13, 2016 @ 20:40:50

    Respected sir,
    I Mohammad shahid from west Bengal(india) sir I have a problem belong to a development agreement without any money sir I want to know the law is it is valid in west bengal court and the next if the land owner doesn’t demand any money and sign its is valid in court of west bengal or not pleased suggest me what is the law belongs to this development agreement without money is it stand in court or not
    Respected sir pls give the actual law what is the fact of a development agreement without any money is it valid or not in court
    Respected sir if there are some court judgment belong to this development agreement without money . Sir u may kindly send where I can get this judgment copy ,in which book .
    For this kind act I will be highly obliged to u
    Thaking u,
    Yours obidiently .

    Reply

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