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The subject premises are said to be residential premises. One of the essential conditions to be tenant after the tenant’s death in the case of residential building is that such person must be heir of the deceased tenant. = The parties are admittedly governed by Hindu law. The applicant’s father, who is respondent No. 2, is alive. In other words, the deceased tenant is survived by his son – Jitendra Kumar Gupta (respondent No. 2). Since the applicant (respondent No. 1) is not a son of pre-deceased son, he is not a heir of his deceased grand-father under Section 8 read with the Schedule of the Hindu Succession Act. The High Court clearly erred in not taking into consideration the first requirement of the definition of ‘tenant’ whether or not the applicant was the heir of the deceased tenant. As noted above, the applicant is not a heir of deceased tenant and, therefore, he cannot be held to be a joint tenant along with respondent No. 2 in the subject premises. 8. Appeal is allowed accordingly. The impugned order of the High Court dated May 11, 2011 is set aside and the order dated March 9, 2011 passed by the prescribed authority is restored. 9. The prescribed authority is requested to decide the eviction proceedings as expeditiously as may be possible. 10. No costs. ‘
‘ Eviction (Photo credit: Wikipedia) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3956 OF 2013 (arising out of S.L.P. (Civil) No. 20826 of 2011) SURA… more →
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The subject premises are said to be residential premises. One of the essential conditions to be tenant after the tenant's death in the case of residential building is that such person must be heir of the deceased tenant. = The parties are admittedly governed by Hindu law. The applicant's father, who is respondent No. 2, is alive. In other words, the deceased tenant is survived by his son - Jitendra Kumar Gupta (respondent No. 2). Since the applicant (respondent No. 1) is not a son of pre-deceased son, he is not a heir of his deceased grand-father under Section 8 read with the Schedule of the Hindu Succession Act. The High Court clearly erred in not taking into consideration the first requirement of the definition of 'tenant' whether or not the applicant was the heir of the deceased tenant. As noted above, the applicant is not a heir of deceased tenant and, therefore, he cannot be held to be a joint tenant along with respondent No. 2 in the subject premises. 8. Appeal is allowed accordingly. The impugned order of the High Court dated May 11, 2011 is set aside and the order dated March 9, 2011 passed by the prescribed authority is restored. 9. The prescribed authority is requested to decide the eviction proceedings as expeditiously as may be possible. 10. No costs. '
wrote 3 weeks ago: ‘ Eviction (Photo credit: Wikipedia) IN THE SUPREME COURT OF INDIA CIVIL APPELLA … more →
whether the suit was maintainable without seeking any consequential relief. Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession."......It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration."= A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest.= "......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree." In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs.
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Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition of Property in specific shares-Deed not registered- Admissibility. Pleadings-Plea of acquiescence-Not raised in pleadings- Cannot be allowed to be set up subsequently. Hindu Law--Agharia caste-Custom of Jethansi allowing larger share of family property to eldest son--Outmoded custom loses legal force. Indian Evidence Act (1 of 1872), s. 91-Bar on oral evidence. =D died in 1940 leaving certain agricultural land as well as house property. He had two children by his first wife the elder of whom was respondent no.. 1. By his second wife, appellant no. 2, he had a son, appellant no'. 1. The family belonged to the Agharia caste and was governed by the Benares School of Hindu Law. In 1956 Appellants 1 and 2 filed a suit in the Court of the Civil Judge Raigarh (now in Madhya Pradesh) claiming that they were entitled to 1/4 th share each in D's estate and that there should be a partition by metes and bounds of joint family property. According to their pleadings Ex.D-4 dated December 27, 1943 by which appellant no. 2 accepted a lesser share of the properties than was due to her and her son was executed as a result of coercion by respondent no. 1. The latter along with other respondents contested the suit, relying on Ex.D- 4. The trial court, the first appellate court, as well as the High Court decided against the appellants who by special leave came to this Court. The questions that fell for consideration were : (i) whether Ex.D-4 was admissible in evidence without having been registered; (ii) whether Appellant No. 2 was precluded from demanding her share because her signing of Ex. D-4 showed acquiescence on her part; (iii) whether a higher share for respondent no. 1 was justified because of the custom of Jethansi in the Agharia caste according to which the eldest son was entitled to a larger -share than others; (iv) whether it was open to the respondents to give oral evidence of actual partition subse- quent to the execution of Ex.D-4. HELD: (i) The recitals in Ex.D-4 showed that there was allotment of specific properties to individual co-parceners and the document therefore fell within the mischief of s. 17(1) (b) of the Registration Act. It followed that Ex.D-4 was not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property had ceased to be joint -property. The document was only admissible to prove an intention on the part of the co-parceners to become divided in status. [643 F-H] Nanni Bai v. Gita Bai, [1959] S.C.R. 479, relied on. (ii) There was no pleading on behalf of the respondents and no issue framed to the effect that by signing Ex.D-4 appellant no. 2 had acquiesced in the division of properties among her sons without claiming the share to which she was entitled under the Mitakshara Law of the Benares 640 School. The respondents therefore could not be allowed to set up the plea of acquiescence by appellant no. 2 [L644 E] (iii) The doctrine of "Jethansi" or "Jeshtbhagam" is now obsolete and unenforceable. The principle of Hindu Law is equality of division and the exceptions to that rule, have almost, if not altogether disappeared. As between brothers or other relations absolute equality is now the invariable rule in all the States, unless, perhaps, where some special family Custom to the contrary is made out. The respondents had failed to prove that such a custom was prevalent in the caste of Agharias to which the parties belonged. [644 F-G; 645 F-G; 646 A-F] M. Y. A. A. Nachiappa Chettiar v. M. Y. A. A. Muthu Karuppan Chettiar, A.I.R. 1946 Mad. 398 and Hur- Purshad v. Sheo Dyal, 3 I.A. 259 at p. 285, referred to. (iv) The evidence showed that document Ex.D-4 was intended by the parties to be the sole evidence of partition and since it had been held that Ex.D.4 was not admissible in evidence on account of non-registration to establish when the property was so partitioned, it was manifest that no oral evidence was admissible to prove any subsequent partition having regard to the provisions of s. 91 of the Evidence Act. [L 646 G-647 A] =1968 AIR 1299, 1968( 3 )SCR 639, , ,
wrote 1 year ago: PETITIONER: Image via Wikipedia SHIROMANI & ORS. Vs. RESPONDENT: HEM KUMAR & ORS. DATE OF JU … more →
Hindu law--Illegitimate son of Sudra--Right to demand partition of separate property of father. =Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father's lifetime, he can enforce partition after his father's death if the father was separate from his collaterals and has left separate property and legitimate sons. =1952 AIR 225, 1952SCR 869, , ,
wrote 1 year ago: Image via Wikipedia PETITIONER: GUR NARAIN DAS AND ANOTHER Vs. RESPONDENT: GUR TAHAL DAS AND OTHERS … more →
Hindu Law--Marriage between Hindu and former Christian--Proof of conversion to Hinduism--No formal purification ceremony necessary--Bona fide intention accompanied by unequivocal conduct sufficient. Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949- Act applicable only to those domiciled in Madras. Indian Evidence Act 1 of 1872, s. 112--Presumption as to legitimacy of child. =One Perumal Nadar, a Hindu, married Annapazham, daughter of an Indian Christian, on November 29, 1950 at Kannimadam in the State of Travancore-Cochin according to Hindu rites. Of the two children born of the marriage one died. The younger child, a son born in 1958, acting through his mother, the afoResaid Annapazham, as his guardian, filed an action in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family held by his father Perumal. The 'suit was defended by Perumal. The trial court decreed the suit and the High Court confirmed the decree. In appeal to this Court by certificate Perumal, the appellant, contended : (i) that Annapazham was an Indian Christian and a marriage between a Hindu and an Indian Christian must be regarded as void; (ii) that the marriage was invalid because the appellant was already married .before he married Annapazham and bigamous marriages were prohibited by Madras Act 6 of 1949; (iii) that the appellant and Annapazham were living apart for a long time before the birth of the plaintiff and on that account the plaintiff could not be regarded as a legitimate child of the appellant. HELD : (i) The question whether marriage between a Hindu male and a Christian female is valid or not did not arise for consideration in the present case because the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal was amply supported by evidence. [52 D-E] A person may be a Hindu by birth or conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona,fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiration is necessary to effectuate conversion. [52 E-F] Muthusami Mudaliar v. Musilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 and Goona Durgaprasada Rao v. Goona Sudarasanaswami, I.L.R. (1940) Mad. 653, referred to. The evidence in the present case established that the parents of Annapazham arranged the marriage. The marriage was performed 50 according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith; and the plaintiff was also treated as a Hindu. On the evidence there could be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies would not be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that the appellant chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicated that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed. [53 C-E] (ii) On the facts and pleadings the High Court was right in holding that it was not proved that the appellant was domiciled in the State of Madras at the date of his marriage with Annapazham. He could not therefore rely upon the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. [54 F] (iii) There was a concurrent finding by the courts below that there was no evidence to establish that the appellant living in the same village as Annapazham had no access to her during the time when the plaintiff could have been begotten. Therefore, in view of s. 112 of the Indian Evidence Act it could not be held that the plaintiff was an illegitimate child. [55 A-B] Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, [1954] S.C.R. 425, Karapaya v. Mayandi, I.L.R. 12 Rang. 243 (P.C) and Ammathayee v. Kumaresain, [1967] 1 S.C.R. 363, applied. =1971 AIR 2352, 1971( 1 )SCR 49, , ,
wrote 1 year ago: Image via Wikipedia PETITIONER: PERUMAL NADAR (DEAD) BY L.R.S. Vs. RESPONDENT: PONNUSWAMI DATE OF JU … more →
Hindu Succession Act, 1956: s.6, Explanation 1-Devolution of interest in coparcenary property-Father and his adopted son constituting Mitakshara coparcenary-Father having two daughters also-On the death of father, daughters claiming 2/3 share in property-Held, in view of s.6 and Explanation 1 thereto, notional partition of the suit properties between father and his adopted son has to be assumed immediately before the death of the father and that being so his undivided interest in suit property, which was half, devolved on his death upon his three children, i.e. the adopted son and the two daughters in equal proportion-Adopted son would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession-Thus, each of the two daughters was entitled to one-sixth share in the property and the remaining properties would go to the adopted son-Hindu Law-Mitakshara coparcenary-Devolution of interest-Interpretation of statutes-Statutory fiction-Interpretation of. State of Bombay v. Pandurang Vinayak Chaphalkar & Ors., [1953] 4 SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR (1978) SC 1239, relied on. East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) Appeal Cases 109, referred to. Mulla, Principles on Hindu Law, referred to. =Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Rani Masheshwari and Pratibha Jain for the Appellants. Aruneshwar Gupta, Gen. Naveen Kumar Singh, Mukul Sood, Kumar Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh for the Respondents.
wrote 1 year ago: Image via Wikipedia CASE NO.: Appeal (civil) 4171 of 2006 PETITIONER: Anar Devi and Ors RESPONDENT: … more →
Hindu Law--Widow--Surrender--Release in favour of daugh- ter and son-in-law--Validity--Suit by reversioner--Right to mesne profits. = Where a Hindu widow who had inherited her husband's estate executed a deed, described as a deed of release, in favour of her daughter who was the next reversioner and the daughter's husband jointly: Held, that though under the Hindu Law it is open to a widow to surrender the estate to the next reversioner even though the latter is a female heir, a widow cannot validly surrender in favour of the next female heir and a stranger jointly. Such a transaction cannot be treated as a surren- der in favour of the female heir and a transfer by the latter to the stranger, and is not binding upon the ultimate reversioners. Jagrani v. Gaya (A.I.R. 1933 All. 8561 approved. Nobo Kishore v. Harinath (I.L.R. 10 Cal. 1102) commented upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasa- mi Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad v. Gola Bhagat (I.L.R. 40 Cal. 721) referred to. In a suit by the reversioner to set aside an alienation made by a Hindu widow mesne profits can be awarded to the reversioner from the date of the widow's death even though such an alienation is not void. Even in cases where the decree for possession in favour of the reversioner is conditional on his depositing the amount which has been found to have been used for the bene- fit of the estate, mesne profits can be awarded to the reversioner if he is ordered to pay interest on the amount payable to the alienee. Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to. Banwarilal v. Mahesh (I.L.R. 41 All. 63) distinguished.
wrote 1 year ago: Image via Wikipedia PETITIONER: MUMMAREDDI NAGI REDDI AND OTHERS Vs. RESPONDENT: PITTI DURAIRAJA NAI … more →
Partition of ancestral property and business-One of the parties a minor at the time of partition-Partition-If could be re-opened when minor became a major.
wrote 1 year ago: Image via Wikipedia PETITIONER: SUKHRANI (DEAD) BY L.RS. & ORS. Vs. RESPONDENT: HARI SHANKER … more →
Dismissing the appeal, this Court HELD : 1. Estate of S should normally have devolved upon his children in accordance with the shares as defined by the Shariat Law. But since the properties were Inams and impartible and the services to the Ruler due from the members of the family were expected to be taken from the eldest son by the rule of primogeniture, then the heirs of S, even though not forming a joint Hindu Family as is known to Hindu Law, would still be a group of people, the representative of which was A in order to hold the Inam. Once that Inam was abolished and re-grant given to A, impartibility of the estate vanished and thus this group of people were definitely entitled to claim their respective shares in accordance with the law of Shariat. There is no impelling reason to draw a line of distinction qua the two cases in Nagcsh Bisto Desai* and Annasaheb Bapitsaheb** so as to carve out an exception to the principle for Mohammedans. The prime reason for such interpretation is that the Ruler while drawing up the Inam initially and conferring it again on A did not intend to create any distinc-tion between his subjects, be it Muslims or Hindus. Uniformity of tradition in that regard would be a good rule of reason so as to set the matter at rest here. [175-B-E] *Nagesh Bisto Desai Etc. Etc. v. Khando Tirmal Desai Etc. [1982] 3 SCR 341; ** Annasaheb Bapusaheb Patil and Ors. v. Balwant (dead) by Lrs. and heirs and Ors. [1995] 2 SCC 543, relied on. 2. It is true that some evidence, basically of Municipal register entries, were inducted to prove the point of adverse possession but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. The finding relating to the plea of adverse possession was rightly reversed by the High Court. [175-G-H; 176-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2750 of 1977.
wrote 1 year ago: Image via Wikipedia PETITIONER: ABUBAKAR ABDUL INAMDAR (DEAD)BY LRS. AND OTHERS. Vs. RESPONDENT: HAR … more →
ARYA MARRIAGE VALIDATION ACT 1937
wrote 1 year ago: Image via Wikipedia ARYA MARRIAGE VALIDATION ACT 1937 THE ARYA MARRIAGE VALIDATION ACT, 1937 ACT No. … more →
"Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property. It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivorship. But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common."
wrote 1 year ago: Image via Wikipedia REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPE … more →
