Marriage without Sex – Anathema – Court holds Impotency/Refusal to have Intercourse – Mental Cruelty

Comment : In this case the SC highlighted again that merely by adoption the adoptive parents are not deprived of right to deal with their properties as such, however if there is an agreement to the contrary such rights may be restricted, and since by such agreement right/title/interest is created/declared and extinguished it is required to be compulosrily registered (Dina Ji v. Daddi – 1990) 

Supreme Court of India
Chiranjilal Srilal Goenka … vs Jasjit Singh & Others on 1 December, 2000
Author: Shah
Bench: M.J.Rao, M.B.Shah

CASE NO.:

Appeal (civil) 723 1973

PETITIONER:

CHIRANJILAL SRILAL GOENKA (DEAD), BY LRS.

Vs.

RESPONDENT:

JASJIT SINGH & OTHERS

DATE OF JUDGMENT: 01/12/2000

BENCH:

M.J.Rao, M.B.Shah

JUDGMENT:

L…..I………T…….T…….T…….T…….T…….T..J J U D G M E N T

Shah, J.

Aforesaid appeal is filed against the judgment and order passed by the High Court of Delhi in Civil Writ Petition No.734 of 1971 filed by the deceased Chiranjilal Srilal Goenka of Bombay challenging the order No.19 of 1971 dated 8th February, 1971 passed by the Gold Control Administrator, New Delhi. Deceased appellant challenged confiscation of gold by the custom authorities under Gold Control orders by filing writ petition which was dismissed by the High Court. Against that order, the aforesaid appeal is filed. Pending appeal, appellant (Chiranjilal Srilal Goenka) died on 24th November, 1985. A dispute aroseas to who is the legal heir of the deceased. Firstly, one of the daughters, Sushila Bai N. Rungta claimed under a Will dated 29th Oct., 1982 and secondly, Radheshyam Goenka claimed as adopted son and thirdly, Smt. Raj Kumai R. Goenka wife of adopted son claimed independently. Keeping the question of right, title and interest in the property open, for continuing the proceedings, all the three were ordered to be brought on record by order dated 7.10.1991. It was also ordered that appeal be listed to consider the possibility of appointing an arbitrator by common consent or by orders of the Court for bringing about a settlement. Thereafter, to settle the dispute as to who would be the legal heirs to the estate of Chiranjilal Srilal Goenka, this Court passed an order on 1.11.1991 appointing Mr. Justice V.S. Deshpande, retired Chief Justice of Bombay High Court, as arbitrator which is reproduced hereunder

By consent of parties Justice V.S. Deshpande, retired Chief Justice of the Bombay High Court is appointed as arbitrator to settle the dispute as to who would be the legal heirs to the estate of late Chiranjilal Srilal Goenka. The question as to statutory action under the Gold Control Act is left open and is made explicitly clear that it is not a part of the reference. Arbitrator will fix his terms of fees and should function in such a way that the award is made available within four months from now. Parties will be entitled to place the claims before the Arbitrator in regard to trust and other institutions but the same may not be finally dealt with by the arbitrator. Arbitration expenses shall be shared equally by the parties corresponding to the share of interest in the property.

For deciding the dispute, on 10th April, 1992 the Arbitrator framed issues as under

(1) Does claimant No.1 prove execution of the Will dated 29th (28th) October, 1982, and prove the same to be the last and genuine Will of late Shri C.S. Goenka?

(2) If not, does she prove the execution of the Will dated 4.7.1978 and prove the same to be the last and genuine Will of late Shri C.S. Goenka?

(3) Does claimant No.2 prove that the late Shri C.S. Goenka duly adopted him on 26.1.1961?

(4) Is the copy of the document dated 26.1.1961 filed by claimant No.2 admissible in evidence?

(5) Is the said document genuine and brought into existence in the way claimed by claimant no.2?

(6) If yes, then does the said document constitute an agreement between Mangalchand and late Shri C.S. Goenka?

(7) If yes, can the said agreement be said to be the one contemplated by Section-13 of the Hindu Adoption and Maintenance Act?

(8) If yes, then would the said agreement dated 26.1.1961 prevent the late C.S. Goenka from disposing of and dealing with the estate, according to his wishes by a Will?

(9) In view of finding on issues above, who are the legal heirs to the estate of the late Shri C.S. Goneka?

For issue nos.1 and 2, it was pointed out that probate suit is pending in the Bombay High Court, wherein the learned Judge has expressed doubt whether arbitrator has jurisdiction to decide probate suit. Hence, IA No.3 of 1992 was filed before this Court to seek clarification. By judgment and order dated 18th March, 1993 this Court held that arbitrator can not proceed with probate suit and decide issue nos.1 and 2 framed by him and the High Court was requested to proceed with the probate suit No.65 of 1985. Till the decision in the probate suit, the arbitrator was requested not to decide issue nos.1 and 2. The Court observed that it would be open to the arbitrator to proceed with other issues and would conclude his findings on issue nos.1 and 2 on the basis of result in the probate proceedings and make the award according to law.

Thereafter, in the probate suit on 27.10.1999 parties filed Minutes of order stating as under:-

(1) The Caveators/Defendants concede to the execution and genuineness of the Will dated 29th October, 1982 of the deceased Chiranjilal Shrilal Goenka of which probate is sought by the petitioner. Petition allowed accordingly as prayed.

(2) The parties agree that this order/decree will be without prejudice to the rights, claims and contentions of the parties in the arbitration proceedings pending before Justice V.S. Deshpande, Retd. Chief Justice of Bombay High Court.

(3) No Order as to costs.

On the same date, the Court passed order in terms of minutes of order.

Subsequently, after recording the evidence, Arbitrator passed an Award on 16th June, 2000. He arrived at the conclusion that Will in favour of Sushila Bai N. Rungta executed by Chiranjilal was in-operative and Radheshyam was the sole heir as adopted son. It was also held that Sitabai Mangal Chand Kedia and Raj Kumari wife of Radheshyam do not claim to be such heirs.

On the basis of that Award, on behalf of Radheshyam IA No.9 of 2000 is filed for making the award rule of the court and to pass a decree in terms of the award. That award is challenged by Sushilabai N. Rungta by filing objection under Section 33 read with Section 30 of the Arbitration Act, 1940. As against this, Radheshyam has submitted that there is no error of law or facts apparent on the face of record and the Arbitrator has given well reasoned award which does not call for any interference.

At the time of hearing, Mr. Vinod Bobde, learned senior counsel for objector submitted that he was not challenging the finding given by the learned Arbitrator that Radheshyam was adopted son of Chiranjilal. However, he submitted that finding of the arbitrator that there was an agreement between Chiranjilal Goenka and parents of Radheshyam that Radheshyam was given on adoption to Chiranjilal on the conditions mentioned in the so-called photocopy of letter dated 26.1.1961 is, on the face of it, illegal and arbitrary. He further submitted that assuming that the said letter can be considered to be an agreement, it requires registration as it limits the right of absolute owner Chiranjilal to bequeath the property by Will. He further submitted that after codification of Hindu Adoptions & Maintenance Act, 1956 (hereinafter referred to as the Act), Sections 12 and 13 govern the rights of the adopted son and the adoptive parents.

As against this, Mr. Sanghi, learned senior counsel submitted that it cannot be said that the award made by the arbitrator is in any way on the face of it, illegal or arbitrary and that when the reasoned award is passed by the learned arbitrator, even if other view is possible on the interpretation of law, it would not be open to this Court to disturb the finding given by the Arbitrator. For dealing with contentions of the learned counsel, we would first refer to relevant parts of Sections 12 and 13 of the Act, which read as under:-

12. Effects of adoption. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that

(a) .. (b) .. (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

13. Right of adoptive parents to dispose of their properties:

Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

Reading Section 12 proviso (c) and Section 13 together it is apparent that adoption would not divest any person of any estate which is vested in him or her before the adoption. It also does not deprive the adoptive father or mother the power to dispose of his or her property by transfer, inter vivos or by Will. However, this power to dispose of the property would be subject to any agreement between the parties.

Legislature has codified and crystalised the situation prevailing prior to the enactment of the Act that there was no implied contract on the part of the adoptive father or mother in consideration of the gift of his son by a natural father or mother that he or she would not dispose of property by transfer or by Will. However, in case of specific agreement to the contrary between the parties, the power to dispose of the property would be subject to the said agreement.

Keeping these in background, we would consider the facts of the present case. It is the case of both the parties that Mr. Chiranjilal Goenka had two daughters namely Sitabai, born on 29.10.1938 and another Sushilabai born on 3.9.1950. Sitabai was married to Mangal Chand Kedia of Kanpur and gave birth to Radheshyam on 8.9.1954 and to another son Govind on 3.8.1956. On 26.1.1961 Chiranjilal adopted Radheshyam. It is the contention of the learned counsel for Radheshyam that on the said date prior to adoption, a writing recording the terms of earlier arrived oral agreement was dictated by Chiranjilal in the form of an offer letter from the natural parents, which was recorded by relative Mr. Hanuman Prasad Poddar. Photocopy of the said letter is produced on record, which is in Hindi and its translation is to the following effect: -

Salutations from Mangalchand Kedia to the respected Shri Chiranjilal Goenka. I am giving you in adoption with much pleasure my son Chi. Radheshyam. From now he is alone your son. And he alone will inherit your entire moveable and immovable property. During your life time you shall be entitled to your entire moveable and immovable property. In case if you die, your wife Smt. Bhagwandevi shall have absolute right. Similarly, if she dies earlier you will have absolute right. After the death of both of you, Chiranjeev Radheshyam alone shall have full right on total moveable and immovable property. I am writing this letter with pleasure. 26.1.1961.Magh Shukla 10 Samvat 2017 Thursday.

Questions which would require consideration in these proceedings would be (1) Whether the writing dated 26.1.1961 can be considered to be an agreement between Chiranjilal and the parents of Rahdeshyam? (2) Whether it is an agreement as contemplated by Section 13 of the Act limiting the rights of adoptive parents to dispose of the property by will? And if so, (3) Whether it requires registration?

It has been contended by the learned senior counsel Mr. Bobde that the aforesaid letter cannot be considered to be any agreement between Chiranjilal and Mangal Chand Kedia, father of Radheshyam. He further submitted that there is nothing on record to prove that the aforesaid unilateral offer of Kedia was accepted by Chiranjilal. He further pointed out that this letter nowhere provides that rights of Chiranjilal to dispose of his property by transfer or by Will is any way restricted. It is his contention that even this letter specifically provides that during the life time of Chiranjilal, he would be absolute owner of the property meaning thereby that he would have right to transfer the property or bequeath the same.

As against this, learned senior counsel Mr. Sanghi submitted that the aforesaid writing specifically provides that Shri Radheshyam shall be the sole heir to the properties of Chiranjilal after his death and death of his wife. The said writing was signed by Mangal Chand Kedia, his wife Sita Bai and witnessed by Hanuman Prasad Poddar and eight other eminent people of the community. After this letter, Chiranjilal took Radheshyam on adoption and therefore, it should be held that terms of the said letter were accepted by Chiranjilal. On the basis of these facts, if finding is given by the arbitrator, it cannot be said that award is, on the face of it, illegal. It is submitted that only after marriage of Sushilabai with Rungta of Jaipur, disputes arose in 1975 between Chiranjilal and Radheshyam. May be that, more than 38 proceedings were initiated between Chiranjilal and Radheshyam and in proceedings Chiranjilal resiled from his agreement and the factum of adoption in subsequent affidavit filed by him, but that would not nullify the agreement or the adoption. It is, therefore, submitted that because of adoption agreement Radhey Shyam would be the sole and exclusive heir of the assets of late Chiranjilal after his death. Therefore, the Will dated 29th October, 1982 executed by him would be inoperative and of no effect. The learned counsel further submitted that parties can enter into a binding oral agreement unless there is any extra requirement by statute to record the same in writing. Section 13 of the Act does not require the agreement to be in writing. For this purpose, he relied upon the decision in Tarsem Singh v. Sukhminder Singh [1998 (3) SCC 471]. In any case, after taking advantage by adopting Radheshyam, Chiranjilal is bound by the said letter. For this purpose, he has relied upon Mohaomed Musa & Others v. Aghore Kumar Ganguli (AIR 1914 PC 27), Venkayaamm v. Apparao (AIR 1916 PC 9) and Re Basham (1987 (1) All ER 405). He also submitted that the said letter does not require any registration. He finally submitted that the award passed by the arbitrator can not be said to be illegal which would call for any interference. Hence, it should be made rule of the Court. In our view, the photocopy of the letter, presuming that such letter was written by Mangal Das Kedia to Chiranjilal at the time of giving Radheyshyam in adoption, there can be no doubt that it does not reflect any agreement between the parties. At the most it was only a unilateral offer giving child in adoption on certain expectations. The letter appears to be signed by number of persons and if really Chiranjilal had accepted it, then he would have placed his signatures on the said letter. There is nothing on record that he accepted the same as it was. Secondly, the letter at the most indicates that from that day, RadhesShyam would be the adopted son of Chiranjilal and would inherit his property. However, it was made clear in that very letter that during the life time of Chiranjilal and his wife, they were the absolute owners of their properties. There is nothing to indicate in the said letter that it was a covenant or a contract restricting the powers of Chiranjilal or his wife to dispose of the property either by transfer or by Will. Nowhere, it is stated that during his life time, Chiranjilal will not be entitled to dispose of his property either by transfer or by Will. Hence, there is no positive or negative agreement limiting the rights of Chiranjilal to dispose of the property by executing the Will. Presuming that the aforesaid letter is an agreement, at the most it can be stated that from the said date Radheshyam would be son of Chiranjilal and would be entitled to inherit his properties. This also would not mean that there is any agreement that adoptive father has no right to dispose of his property.

However, learned Senior counsel Mr. Sanghi submitted that in the letter, it is mentioned that after the death of Chiranjilal and his wife, Radheshyam alone would have full right on the moveable and immovable property belonging to them. He, therefore, submitted that the aforesaid offer implies that right of Chiranjilal was restricted and he could not execute the Will. In our view, this submission has no force. The aforesaid term of the letter only indicates that Radheshyam alone would be the heir and would have full right on the moveable and immovable property as heir. That is to say, it would mean if any property is left by deceased Chiranjilal which is not transferred or bequeathed, then Radheshyam would be the heir and entitled to receive the same. This would not mean that there was any restraint on the part of Chiranjilal to execute the will. In support of his contention, learned counsel Mr. Sanghi referred to the following passage from Theobald on Wills (At Page 93), [Fourteenth Editionby J.B. Clark):

Contract to leave residue. But a covenant to leave the covenantee all the property or a share of the property of the covenantor does not create a debt.

The effect of such a covenant is to leave the covenantor free to dispose of his property in his lifetime by gift or otherwise as he thinks fit, so long as he does not dispose of it in fraud of the covenant. The covenantee is entitled to have the covenant specifically enforced, and he will take subject to payment of the funeral and testamentary expenses and debts of the covenantor.

Evasion of contract not permitted. If the covenant is limited to the personal property of the covenantor and he buys real estate, the real estate is, in the hands of the heir or a devisee, charged with the purchase-money. And though the covenantor can dispose of the property in his lifetime, he cannot defeat the covenant by a disposition by will, nor by any disposition which has the same effect as a testamentary disposition, for instance, a voluntary settlement whereby he settles property on himself for life with remainders over.

The aforesaid paragraphs in no way support his contention. On the contrary it specifically mentions the effect of such covenant stating that it leaves the covenantor free to dispose of his property in his lifetime by gift or otherwise as he thinks fit so long as he does not dispose of it in fraud of the covenant. Hence, Chiranjilal was entitled to dispose of the said property either by transfer or by will. Further, in the present case, there is no question of fraud on the part of Chiranjilal. Admittedly, the relations between Chiranjilal and Radheshyam were so much strained that more than 38 litigations were pending between them in various courts. Further, the aforesaid paragraph is to be read in context of previous paragraph which provides for a contract to leave residue. In the present case, there is no such contract to leave residue in favour of Radheshyam. In this view of the matter, it cannot be said that by the said letter, there is any agreement limiting the rights of adoptive parents to dispose of their property by executing a will.

The next question would be whether the said letter, if considered as an agreement, restraining or limiting the rights of adoptive father to bequeath the property requires registration? In support of this contention, learned counsel Mr. Bobde referred to the decision of this Court in Dinaji v. Daddi (1990 (1) SCC 1). In that case Hindu widow adopted a son on April 28, 1963 by executing the deed of adoption. The document was not registered and the trial court admitted the same in evidence in proof of adoption. Subsequently, by registered sale deed dated April 28, 1966, she transferred immovable property including agricultural land and houses in favour of the appellant Dinaji. On the basis of the sale deed, suit for injunction and possession was filed against the adopted son. After considering the provisions of Section 12 (c), this Court held that after the Hindu Succession Act came into force, widow became absolute owner of the property of her husband and, therefore, merely by adopting a child, she could not be deprived of any of her rights in the property. The Court further held the adoption would come into play and the adopted child could get the rights for which he is entitled after her death as is clear from the Scheme of S. 12 proviso (c). Thereafter, the Court considered section 13 of the Act and observed that this section enacts that when the parties intend to limit the operation of proviso (c) to S. 12, it is open to them by an agreement and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in S. 13 of the Hindu Adoptions and Maintenance Act. However, the Court held that in view of Section 17(1)(b) of the Registration Act, the said part of the deed which refers to the creation of immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of Section 17(1)(b) and, therefore, under Section 49 of the Registration Act.

As against this, learned senior counsel for the respondent Mr. Sanghi submitted that the aforesaid letter is not to be construed as a deed, but is to be taken as an offer letter and by conduct of adopting Radheshyam as son, Chiranjilal could not dispose of the property by will. In our view, this argument is totally devoid of any substance because if reliance is required to be placed on the letter for holding that it restrains Chiranjlal to dispose of the property by will, then it is required to be read as a document which limits the rights of Chiranjilal to deal with his property including the immoveable property. Therefore, it would require registration. In any case, the aforesaid question is not required to be considered in detail because we have already arrived at the conclusion that there is no agreement between the parties before adoption indicating any contrary intention as contended.

Finally, we would deal with the contention of learned counsel Mr. Sanghi that when two views are possible and the arbitrator has taken a plausible view, the award cannot be interfered with. For deciding this contention, we would refer to some parts of the award which would reveal that the award is, on the face of it, illegal and erroneous and contrary to what has been discussed above. The arbitrator has misinterpreted the letter as an adoption agreement between Mangalchand Kedia and late Chiranjilal and thereafter relied upon the part of the said agreement as two terms of the agreement and has held that as per the said terms, Chiranjilal has committed him to have only life interest in the said property for himself and his wife. After their death, Radheshyam would be the successor of their entire property. He, therefore, held that there is an implied prohibition against them to transfer any part of their property. Obviously, either of them is incompetent to transfer any part of the property inter vivos or under any will. In this view of the matter, I hold that the adoption agreement covered by the finding on issue No. 6 is an agreement to the contrary as contemplated under Section 13 of the Act. In this view of the matter, we hold that the award dated 16th June, 2000 passed by the arbitrator holding that the will executed by Chiranjilal is inoperative and requires to be set aside and we so do. It is held that on the basis of the probated Will Sushilabai N. Rungta is legal heir of the deceased Chiranjilal. Ordered accordingly. There shall be no order as to costs.

Amendment of Plaint to prevent partial partition – application by defendant ?

The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?
Court held yes – since holistically in partition suit there are no judgment debtors and strict bifurcation of parties and their role is obliterated to a great extent, if the defendant seeks to bring more properties by way of amendment to protect the suit from being bad on account of partial partition – court may consider it and if it finds the same necessary for the determining the real questions in controversy as well as deciding the matter with a finality – shall be allowed.
Madras High Court
Solavaiammal vs Ezhumalai Goundar on 16 November, 2011

DATED: 16.11.2011

CORAM

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

C.R.P.(PD) No.3006 of 2010

1. Solavaiammal

W/o Ettiappa Goundar

2. Parvathy

W/o Ezhumalai

3. Shanmugam

S/o Ettiappa Goundar

4. Rathnam

S/o Ettiappa Goundar .. Petitioners

-vs-

1. Ezhumalai Goundar

S/o Ettiappa Goundar

2. Valliammal

S/o Venugopal .. Respondents

Memorandum of Grounds of Civil Revision Petition under Article 227 of The Constitution of India against the fair and decretal order dated 05.02.2010 passed in I.A.No.264 of 2009 in O.S.No.31 of 2007 on the file of the Sub Court, Madurantagam. For Petitioners :: Mr.K.Govi Ganesan

For Respondents :: Mr.J.Sudhakaran for

Mr.M.Arunachalam for R1

ORDER

D.MURUGESAN, J.

The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?

2. The said question has been referred to for a decision by the Division Bench by The Hon’ble Mr.Justice M.Duraiswamy vide order dated 16.3.2011 and the reference necessitated in view of the conflicting views given by two learned Judges of this Court in the decisions in Ramasamy and another v. P.Marappan and others, 2005 (3) MLJ 663 and in A.A.Ganga and another v. A.R.Usha and others, 2010 (4) CTC 331.

3. In a suit for partition filed by the plaintiffs in O.S.No.31 of 2007 on the file of the Subordinate Court, Madurantagam, the defendants, namely the revision petitioners, filed I.A.No.264 of 2009 under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the plaint on the ground that some of the joint family properties were left out by the plaintiffs for partition. After hearing both sides, the learned trial Judge dismissed the application holding that the defendants cannot seek for amendment of the plaint. The said order is put in issue in this civil revision petition.

4. In the judgment in Ramasamy v. P.Marappan, 2005 (3) MLJ 663, the learned Judge R.Banumathi, J. held that under Order VI, Rule 17 of the Civil Procedure Code, a party can seek to amend his pleadings in plaint or written statement, but a party cannot seek to amend the pleadings of his opponent. So far as the amendment of plaint is concerned, the learned Judge has held that as the plaintiff is the dominant litus and he cannot be compelled to include other items of properties in the plaint schedule in a partition suit. The learned Judge was of the view that if the petition mentioned properties which are sought to be included in the plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition. Holding so, the learned Judge upheld the order of the trial Court in dismissing the application to amend the plaint.

5. Subsequently, when the very same question came up for consideration before R.S.Ramanathan, J., the learned Judge, after referring to the judgment in Ramasamy case, held that such an application for amendment in a partition suit at the instance of the defendant is maintainable, since, in a suit for partition, the plaintiff is defendant and the defendant is plaintiff, and therefore the defendant is entitled to include the property left out by the plaintiff so as to have a complete adjudication and to avoid further litigation.

6. Before we consider the issue raised in this civil revision petition, the relevant provision of Civil Procedure Code, viz., Order VI, Rule 17 requires a reference and the same reads thus:

17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

7. The scope of Order VI, Rule 17 of the Civil Procedure Code came up for consideration before the Apex Court and the Apex Court ultimately held as follows in the following judgments.

8. In the judgment in Revajeetu Builders and Developers v. Narayanasamy and sons and others, (2009) 10 SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the application for amendment: (i) whether the amendment sought is imperative for proper and effective adjudication of the case;

(ii) whether the application for amendment is bona fide or mala fide;

(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by the law of limitation on the date of application.

In fact, the Apex Court held that the Courts have very wide discretion in the matter of amendment of pleadings, but Court’s powers must be exercised judiciously and with great care. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

9. In Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409, the Apex Court held that it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code would restrict the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

10. In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, the Apex Court held as follows:

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

11. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by L.Rs., (2008) 8 SCC 511, the Apex Court held thus:

In so far as the principles which govern the question of granting or disallowing Amendments under Order 6, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are well settled. Order 6, Rule 17, C.P.C., postulates amendment of pleadings at any stage of the proceedings. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

12. A learned Judge of this Court in Vaidinatha Chettiar and others v. Thirumalai Reddyar, AIR 1934 Madras 220 held that where the Court compels the plaintiff to amend the plaint, only the plaintiff can complain; and it is not open to the defendant to complain that the Court has no jurisdiction to compel the plaintiff to do so.

13. In T.P.Palaniswami and another v. Deivanaiammal and others, 96 L.W. 560, a learned Judge of this Court has held as follows:

3. Negligence or carelessness, or belatedness, need not be put against a party seeking amendment if the facts and circumstance of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis.

4. It is well settled that while deciding an application for amendment, the court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed, applying the well accepted principles therefor, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite evidence therefor and submitted arguments in support of their respective cases.

7. Under Order 6, Rule 17 of the Code, the court may, at any stage of the proceedings, allow either party to amend his pleadings and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. In a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the court is duty bound to allow the amendment and while doing so, it will be inappropriate to adjudicate upon the questions which would arise on the amendment being allowed and that stage will come only later, after the amendment is allowed, issues are framed and the parties placed their evidence and made their submissions through arguments.

14. In P.Arumugham and another v. P.Balasubramaniam and others, (2008) 7 MLJ 1210, a learned Judge of this Court has held as follows:

Merely because the plaintiff owing to some motive or as per his own stand did not include certain items in the suit property, it would not lead to the conclusion that the suit is bad for partial partition. There are instances where the parties would deliberately leave certain items of properties, without any valid reasons for getting it divided at once, but to get them divided at a later date at their own whims and fancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, the Courts have got the power to direct that the left out items also should be included in the partition, once there are evidence available on record that those items are co-parcenary properties.

15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.

16. While an amendment is sought, the Court has to see whether such amendment is imperative for proper and effective adjudication of the case, the amendment is bona fide or mala fide and in case such amendment is ordered, whether any prejudice would be caused to the other party which cannot be ultimately compensated in terms of money. The Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. One more principle to be followed while considering the request for amendment is as to whether it would change the character or nature of the case.

17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.

18. It is argued that in the event some of the properties which are available for partition are not included in the plaint schedule, the decree would be invalid on the ground of partial partition. However, it must be kept in mind that in such event, a further suit has to be filed either at the instance of the plaintiff or defendant to include all the properties which are available for partition. In order to avoid such a situation, in partition suit, the Court could certainly entertain an application for amendment to include the properties which are left out and it cannot be said that in the event the amendment petition is dismissed, the decree would be invalid for partial partition. Hence, we hold that in a suit for partition, application for amendment at the instance of either party to the suit is maintainable under Order VI, Rule 17 of the Civil Procedure Code. We may also refer to the judgment of the Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others, 2009 (12) Scale 259, wherein the Apex Court has observed that a decree in partition suit enures to the benefit of all the co-owners and it is sometimes said that there is really no judgment-debtor in a partition suit.

19. However, in an application for amendment, the Court has to prima facie satisfy itself as to whether the properties are available for partition or not, as a detailed adjudication on the claim is improper. If there is a dispute over the inclusion of properties by the plaintiff contending that those properties are not available for partition, the Court is certainly entitled to reject the application for amendment on that ground. In such event, the only course open to the defendant is to file a suit for partition by including those properties. As we have been called upon to answer the question as to whether the application under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the schedule to the plaint in a partition suit at the instance of the defendant is maintainable or not, we answer the said issue by holding that while considering such an application, it is for the Court to decide on the facts of each case. The reference is answered accordingly. Registry is directed to list the civil revision petition before the concerned learned Judge.

ss

Burden of Proving good faith of transactions hit by undue influence

Supreme Court of India
Krishna Mohan Kul @ Nani Charan Kul … vs Pratima Maity And Ors. on 9 September, 2003
Equivalent citations: AIR 2003 SC 4351, 2004 (1) JCR 30 SC
Author: A Pasayat
Bench: D Raju, A Pasayat

JUDGMENT

Arijit Pasayat, J.

1. Leave granted.

2. By the impugned judgment, learned Single Judge of the Calcutta High Court held that the deed of settlement purported to have been executed by Dasu Charan Kul (hereinafter referred to as the ‘executant) was a void and invalid document. The fight between relatives of the executant centers round a registered deed of settlement purported to have been executed on 11.7.1970 by the executant. A suit for declaration and permanent injunction was filed by Pratima Maity, daughter of Phani Charan Kul, son of Dasarathi Kul. The suit property originally belonged to Dasarathi Kul who died in the year 1972. His Son Phani Charan Kul died in the year 1979. Averments in the plaint were to the effect that on coming to know from the office of the Block Land Reforms Officer that defendant No. 1- Krishna Mohan Kul (appellant No. 1 in the present appeal) had filed a registered deed of settlement dated 11.7.1970 it was necessary to get the deed declared to be void and invalid as the same was a forged document. There was no existence of the witnesses whose names appeared in the said deed which was created to grab the property of the plaintiffs. It was in this background alleged that the deed of settlement was created by Krishna Mohan Kul (defendant No. 1) with oblique motive. The contesting defendants took the stand by filing written statements that the deed was perfectly in order and no illegality was attached thereto.

3. Before the trial Court several witnesses were examined to contend that the executant was more than 100 years of age at the time of alleged execution of the deed in question. He was paralytic and his mental and physical condition were not in order. He was practically bed ridden with paralysis and though his left thumb impression was stated to be affixed on the document, there was no witness who could substantiate that in fact he had put his thumb impression. That being the position, the deed was to be declared as void and invalid. The contesting defendants took a stand that it was not as if executant was not in a fit condition physically or mentally at the time of execution of the deed. The trial Court disbelieved the plea of plaintiffs and dismissed the suit.

4. Similar was the fate before the first Appellate Court. On being approached by the plaintiffs the following questions were framed by the High Court in the Second Appeal:

“Whether the deed of settlement executed by the

predecessor-in-interest of the parties is valid in law”. In fact, such substantial question of law should also embrace the question as to whether the judgments of the courts below are perverse in appreciating the said deed of settlement.”

5. High Court took the view that the approach of both the trial Court and the first Appellate Court was erroneous. The following factual aspects were considered relevant. Plaintiffs produced certified copy of the deed, while defendants produced the original one. It was a deed of settlement where Dasu Charan Kul was described as the donor, and curiously the donor and two others namely Nani Charan Kul and his minor son Jagdish Kul. The L.T.I. was identified by one Hari dav Krishna Das. The deed was typed by one N.R. Dutta and in the column meant for the names of witnesses names of scribe Hari dav Krishna Das along with two others namely Nantu Bihari Ray and P.K. Maity appeared. In the deed of settlement donor indicated his age to be 106 years. It was also indicated that he was becoming lackluster due to old age and various ailments and for other mental shocks. According to High Court, courts below wrongly placed the onus on the plaintiffs to prove the validity of the deed of settlement. It was observed that the first Appellate Court dealt with the matter in a very slip shod manner even coming to a conclusion that age of the executant was not proved. It was pointed out that the deed in question indicates that the executant was 106 years old at the time of execution. None of the witnesses of the deed in question was examined to prove the deed of settlement and not even the person who had identified the L.T.I. of the executant. The High Court came to hold that executant was an illiterate person was not in proper physical and mental state and, therefore, the deed of settlement and trust dated 11.7.1970 was void and invalid. The defendants were injuncted permanently from disturbing the possession of the plaintiffs in the suit property.

6. Learned counsel for the appellants submitted that the High Court should not have interfered with the concurrent findings recorded by the trial Court and the first Appellate Court while dealing with an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short the ‘CPC’). It was submitted that there is no material to conclude that the executant was not in a fit physical and mental state at the time of execution of the deed. That being so, the High Court should not have interfered with the conclusions arrived at by the trial Court and the first Appellate Court.

7. In response, learned counsel for the respondents (plaintiffs 1, 2 and 3) submitted that the High Court has rightly interfered with the lower Court’s orders as the conclusions were totally on misreading of the provisions of law. The High Court rightly noticed that onus was wrongly placed on the plaintiffs to prove validity or otherwise of the deed of settlement.

8. We shall first deal with the question relating to jurisdiction of the High Court to interfere with the concurrent findings of fact. Reference was made by learned counsel for the appellants toChandra Bhan v. Pamma Bai and Anr. Sakha hari Parwat rao

Karahale and Anr. v. Bhima shankar Parwat rao Karahale. So far as the first decision is concerned, in view of the factual findings recorded by the lower Court and the first Appellate Court it was held that interference with the concurrent findings of fact are not justified. The question related to possession and two Courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under Section 100 CPC should not have been exercised. So far as the second decision is concerned, the position was almost similar and it was held that findings contrary to concurrent findings of lower Courts and having no basis either in pleadings, issues framed or in questions actually adjudicated upon by any of the lower Courts cannot be sustained. That decision also does not help the appellants in any manner as the factual scenario is totally different in the present case.

9. Though as rightly contended by learned counsel for the appellants the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law.

10. As was noted in Yada rao Dajiba Shrawane (dead) by Lrs. v. Nanilal Harakchand Shah (dead) and Ors. if the judgments of the trial Court and the first Appellate Court are based on miss-interpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact has ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal.

11. In Neelakantan and Ors. v. Mallika Begum it was held that findings of fact recorded must be set aside where the findings has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties.

12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall without the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvement it may be, if it be free from the imputation of fraud, surprise undue influence and spontaneously executed or made by the donor with his eyes open. Where an active confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.

13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.

14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner’s Principles of Equity, 2nd Ed., p.229, thus:

“When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor’s will.”

15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short ‘Contract Act’).

16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar Ahmad and Anr. it was observed as follows:

“It is therefore, manifest that the rule evolved for the protection of pardahnshin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnshin ladies or not.”

17. the logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the contest of pardahnshin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and Ors.

are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons.

18. Above being the position, the High Court was justified in holding that the judgments of the trial Court and the first Appellate Court were perverse and indefensible. We find no scope for interference with the impugned judgment of the High Court. The appeal is dismissed. There shall be no order as to costs.

Supreme Court on Customary Divorce….

Comment : In this case the court was faced with facts wherein the deceased husband’s relatives sought to oust the widow from claiming partition – by relying on the specious plea that the widow stood divorced via customary divorce letter, the court held that though S.29(2) HMA expressly saves customary mode of divorce from the effect of section, it has to be specifically pleaded and proved to have all the characteristics of a valid custom. 
Supreme Court of India
Subramani And Ors. vs M. Chandralekha on 23 November, 2004
Equivalent citations: AIR 2005 SC 485, 2005 (1) AWC 307 SC, 2004 (3) BLJR 2247
Author: A Bhan
Bench: A Bhan, A Mathur

JUDGMENT

Ashok Bhan, J.

1. This appeal by grant of leave has been filed by the defendants-appellants against the judgment and order of the High Court of Judicature at Madras in Second Appeal No. 11 of 1991, High Court by the impugned judgment has set aside the judgments and decree passed by the courts below and has decreed the suit filed by the plaintiff-respondent herein.

2. Facts relevant to resolve the controversy in this appeal are:-

Perianna Gounder (who died during the pendency of the suit) had three sons, namely, Late Natessa Muthu @ Perianna Gounder, Subramani (appellant No. 1) and Kandasamy, Pongiammal and Rajeswari (minor) appellants 2 and 3 are the wife and daughter of Late Natessa Muthu. Plaintiff-respondent M. Chandralekha is the wife of Kandasamy.

3. According to the plaintiff-respondent (hereafter referred to as the “respondent”) there was a partition in the family in the year 1968 between the father and his three sons. In that Perianna Gounder was allotted ‘A’ schedule property while his three sons were allotted ‘B’ schedule property. Subramani and Kandasamy in the year 1980 purchased ‘C’ schedule property. Thereafter, in the year 1983 Perianna Gounder settled ‘A’ schedule property in favour of Subramani and Kandasamy. ‘D’ schedule property which is an agricultural land was purchased again by the two brothers Subramani and Kandasamy.

4. Respondent No. 1 was married to Kandasamy in the year 1981. They separated in the year 1983. Kandasamy died on 21.7.1986. Respondent filed the suit for partition and possession of schedule properties ‘A’, ‘B’, ‘C’ and ‘D’ and also claimed mesne profits. It was pleaded that she being the wife of Kandasamy was entitled to the share of Kandasamy in the schedule properties. She claimed 1/2 share in ‘A’, ‘C’ and ‘D’ schedule properties and 1/3^rd share in ‘B’ schedule property. That differences arose between the respondent and Kandasamy due to which the respondent was driven out of the house and all efforts to reunite them failed. A registered maintenance release deed, Ex. B-1, came to be executed on 25.10.1984 in which the respondent on receipt of Rs. 14,000/-released her claim towards maintenance. Later, respondent came to know that while writing Ex. B-1 a recital had been introduced therein that the marriage between the respondent and Kandasamy stood dissolved under the customary law prevalent in the community. It was averred that parties belonged to Vellala Gounder Community and no custom was prevalent in their community to dissolve the marriage under custom. Even if such a recital was there in the aforesaid document, the same did not have any legal effect and the relationship between her and Kandasamy continued to subsist.

5. Defendants contested the suit. Subramani filed the written statement which was adopted by appellant Nos. 2 and 3. It was contended that Natessa Muthu had died seven years prior to the filing of the suit and not twelve years as alleged in the plaint. That there had been oral partition of ‘B’ schedule property as between the appellants and Kandasamy in the year 1983 and therefore the question of enjoying the ‘B’ schedule property either jointly or in common did not arise. It was admitted that Kandasamy was married to the respondent. It was admitted that Schedule properties ‘A’ & ‘C’ had been purchased/settled in favour of Subramani and Kandasamy, It was denied that these Schedule properties had been purchased by them. It was pleaded by them that Kandasamy had borrowed Rs. 50,000/- from Subramani and incurred debts to the tune of Rs. 90,000/- from third parties. Kandasamy held directed his brother Subramani to discharge all his debts and in lieu thereof take his share in the properties, but before executing any deed to the aforesaid effect Kandasamy committed suicide on 21.7.1986. According to them, Kandasamy had given up his rights over the suit properties and was therefore not possessed of any properties at the time of this death. According to them, marriage between the respondent and Kandasamy had been dissolved as per dissolution deed (Ex. B-1) and the respondent could not take advantage of her own fraudulent act. According to them Kandasamy had committed suicide due to differences with the respondent arid therefore the respondent had no right to seek partition. It was pleaded that respondent had no right to claim partition nor could she ask the Court to overlook the marriage dissolution deed (Ex. B-1).

6. The Trial Court after considering the oral and documentary evidence came to the conclusion that respondent was entitled to 1/2 share in ‘A’, ‘C’ and ‘D’ schedule properties and 1/3^rd share in ‘B’ schedule property but dismissed the suit on the ground that in the community to which the parties belong the marriage could be dissolved under custom and the marriage between the respondent and late Kandasamy stood dissolved by the marriage dissolution deed Ex. B-1. The judgment and decree passed by the trial Court was upheld in the first appeal. The first Appellate Court concurred with the findings recorded by the trial Court.

7. Being aggrieved respondent filed the Second Appeal in the High Court At the time of admission of the appeal the following substantial question of law said to be arising in the appeal was framed :-

“Whether Ex. B-1 dated 25.10.1984 can be construed as bringing about a divorce as contemplated under the provisions of the Hindu Marriage Act and would operate to extinguish the lights of the appellant in her husband’s properties?”

8. The only point argued before the High Court was whether the document Ex. B-1 dated 25.10.1984 dissolved the marriage between the respondent and late Kandasamy. This is the only point argued before us as well.

9. It is not disputed before us that as per Hindu Law divorce was not recognized as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognized by custom. Hindus after the coming into force the Hindu Marriage Act, 1955 (for short “the Act”) can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section 11 or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after commencement of the Act. Section 29(2) of the Act reads:

“Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after commencement of this Act.”

10. It is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom. The High Court came to the conclusion that the appellants failed to either plead the existence of a custom in their community to dissolve the marriage by mutual consent or to prove the same by leading cogent evidence.

11. Counsel for the parties have been heard.

12. Respondent had admitted the execution of document Ex. B-1 but has taken the stand that there was no custom prevalent in their community to dissolve the marriage by mutual consent. In para 5 of the plaint it was pleaded :-

“It is now understood that while so doing, it has been written in the said deed that the marriage between Kandasamy and the plaintiff was cancelled. The parties are Hindu Vellala Gounder Community. There is no caste – custom of divorce with them. Hence, even if there is such a recital, it has no legal effect. Still, the marriage relationship of the plaintiff and Kandasamy is subsisting.”

13. The above claim of the respondent was dealt with and answered, by the appellants in para 6 of their written statement wherein it was stated as under :-

“Plaint paragraph 5 is correct in so far as it relates to the dissolution of marriage between the plaintiff and the late Kandasamy, the dissolution deed, and the payment therefore. Now the plaintiff cannot be allowed to take advantage of her own fraudulent act upon the late Kandasamy and especially after driving him to the brink of disappointment and desolation and finally suicide. The plaintiff has no tenable right to claim petition nor can she ask the court to overlook a substantial document of marriage dissolution deed.”

14. From a perusal of the above averments in the pleadings, it is clear that defendants-appellants did not plead that in their community marriage could be dissolved under custom. They even failed to respond to the averments made in the plaint that no custom was prevalent in their community to dissolve the marriage under custom. In the absence of such pleadings the Trial Court rightly did not frame an issue as to whether the marriage in the community to which the parties belong could be dissolved under the custom prevalent in their community.

15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community. It is not their case that marriage could be dissolved between the husband and wife in their community by executing a document in the form of an agreement. The agreement B-1 has been signed only by the respondent and her late husband Kandasamy has not signed the same. In the absence of any pleadings that marriage between the husband and wife could be dissolved in their community under custom and in the absence of any satisfactory evidence let in to prove the custom prevalent in the community or the procedure to be followed for dissolving the marriage it cannot be held that marriage between the respondent and her husband stood dissolved by executing the marriage dissolution deed Ex. B-1. It is not proved that the document Ex. B-1 is in conformity with the custom applicable to divorce in the community to which the parties belong. This Court in Yamanaji H. Jadhav v. Nirmala, has held that custom has to be specifically pleaded and established by leading cogent evidence by the person propounding such custom. It was held :-

“The courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable to divorce in the community to which the parties belong. As per the Hindu law administered by courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such a custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleading by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the Court.”

[Emphasis supplied]

16. We respectfully agree with and follow the view taken by this Court in Yamanaji H. Jadhav’s case (supra).

17. Accordingly, we find no merit in this appeal and dismiss the same with no order as to costs.

25B DRC is a complete code in itself

Om Prakash vs Ashwani Kumar Bassi on 27 August, 2010
Bench: Altamas Kabir, A.K. Patnaik

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No.24430 OF 2008 Om Prakash … Petitioner Vs.

Ashwani Kumar Bassi … Respondent J U D G M E N T

ALTAMAS KABIR, J.

 

1. This Special Leave Petition is directed against the judgment and order dated 5th October, 2007, passed by a learned Single Judge of the Punjab & Haryana High Court, dismissing Civil Revision Petition No.5129 of 2007 which had been filed by the Petitioner herein against an order dated 4th August, 2007, passed by the Rent Controller, 2

Ludhiana. By his said order the Rent Controller dismissed the Petitioner’s application under Section 5 of the Limitation Act for condoning the delay in filing the application for leave to contest the eviction petition. Consequently, the application for leave to contest the eviction petition was also dismissed.

 

2. The Respondent herein filed an application for eviction of the Petitioner from the premises in question under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as "the 1949 Act". Notice of the application was issued to the petitioner/tenant in the prescribed form asking him to appear before the Rent Controller within 15 days from the date of service of the notice and to apply for leave to contest the petition. The tenant was served with the summons of the eviction petition on 19th May, 2005. The 15 days’ period indicated in the notice 3

for filing the application for leave to contest expired on 3rd June, 2005. Such an application was subsequently made the next day on 4th June, 2005, but was not accompanied by any application for condonation of the delay of one day in making the same. Thereafter, the petitioner filed an application under Section 5 of the Limitation Act for condonation of the said delay in filing the application which was dismissed by the Rent Controller on 4th August, 2007, along with the application for leave to defend the eviction petition. In dismissing the Petitioner’s application under Section 5 of the Limitation Act, 1963, the Rent Controller, relying on certain judgments of the Punjab & Haryana High Court, held that the provisions of Section 5 of the Limitation Act were not applicable in proceedings before the Rent Controller, particularly, for condoning the delay in filing an application for leave to contest 4

the eviction petition.

 

3. The said decision of the Rent Controller, Ludhiana, was questioned in Revision Petition No.5129 of 2007 before the High Court and it was contended that the impugned order had been passed in violation of the provisions of Section 18-A(7) of the East Punjab Urban Rent Restriction Act, 1949, as also Section 17 of the Presidency Small Causes Courts Act, 1882. It was contended on behalf of the Petitioner that by virtue of Sub- section (7) of Section 18-A of the 1949 Act, the procedure prescribed for trial of a suit under the Small Causes Courts Act was also applicable for trial of eviction petitions under the 1949 Act and by virtue of Section 17 of the Small Causes Courts Act, the Code of Civil Procedure has been made applicable to eviction proceedings as well. It was also contended that it was, therefore, obligatory upon the part of the Rent Controller to 5

have considered the merits of the eviction petition and to direct the landlord to lead evidence to prove the grounds for eviction taken by him. It was also urged before the High Court that mere rejection of an application for leave to contest did not ipso facto entitle the landlord to an order of eviction. On the other hand, the Rent Controller should have recorded the evidence of the landlord and it is only after such evidence was recorded and the Rent Controller was satisfied as to the existence of grounds for eviction of the tenant under Section 13-B of the 1949 Act, that the order of eviction could be passed.

 

4. On consideration of the submissions made on behalf of the respective parties, the High Court took the view that the provisions of Section 18-A of the 1949 Act have an overriding effect on all other laws inconsistent therewith and that Sub- section (7) of Section 18-A of the 1949 Act and 6

Section 17 of the Presidency Small Causes Courts Act, 1882, were not attracted to the facts of the case or in a situation where leave to contest has been declined for any reason whatsoever. The High Court further held that under the circumstances, there was no statutory obligation upon the Rent Controller to frame issues or to try the eviction petition by calling upon the petitioner to lead evidence. The High Court further held that refusal to grant leave to contest amounts to admission of the contents of the eviction petition and if the eviction petition itself satisfies the requirements of Section 13-B of the 1949 Act, an order of eviction has to follow as a matter of course.

5. It is against the said order of the learned Single Judge of the High Court, dismissing the petitioner’s Revision Petition, that the present Special Leave Petition has been filed.

7

 

6. As indicated hereinbefore, the case of the Petitioner is that both the Rent Controller and the High Court had erred in law in holding that the provisions of the Limitation Act would not apply in a proceeding before the Rent Controller and that Section 18-A of the 1949 Act would have an overriding effect over Section 29(2) of the Limitation Act, 1963. It was reiterated that by virtue of Sub-section (7) of Section 18-A of the 1949 Act, the procedure prescribed for trial of suits in the Small Causes Courts Act, is also applicable for trial of eviction petitions since by virtue of Section 17 of the Small Causes Courts Act, the Code of Civil Procedure has been made applicable to eviction proceedings as well.

7. Appearing for the Petitioner, Mr. Ujjal Singh, learned advocate, referred to and relied upon the decision of this Court in Mukri Gopalan vs. 8

Cheppilat Puthanpurajil Aboobacker [(1995) 5 SCC 5], wherein a similar question had arisen with regard to the power of the Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965, to condone the delay in filing an appeal after expiry of the period of limitation prescribed under the Act. This Court held that the conditions for applicability of Section 29(2) of the Limitation Act were satisfied since Section 18 is a special law and in the absence of any provision under the Limitation Act, for filing an appeal, the period of limitation provided under Section 18 would have to be treated to be different from that under the Limitation Act. It was held that as a consequence, Section 5 of the Limitation Act would be automatically attracted to an appeal under Section 18 in the absence of any express exclusion under the Rent Act. It was further held that since the District Judges 9

function as Appellate Authority under Section 18, such an authority is a court and not persona designata and, therefore, entitled to resort to Section 5 of the Limitation Act. It was further held that the Appellate Authority constituted under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965, functions as a Court and as a result the period of limitation under the said provisions governing appeals would be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Reference was made to a decision of this Court in Gaya Prasad Kar vs. Subrata Kumar Banerjee [(2005) 8 SCC 14], wherein it was held that having regard to the beneficial provisions of the West Bengal Premises Tenancy Act, 1956, which allowed extension of time for making deposit of arrears of rent, the provisions of the Limitation Act and, in particular, Section 5 thereof, would also be applicable.

10

 

8. Yet another decision of this Court in the case of Akesh Wadhawan & Ors. vs. Jagdamba Industrial Corporation & Ors. [(2002) 5 SCC 440], was referred to on behalf of the Petitioner in the context of the 1949 Act, in which it was held that subsidiary rules of interpretation envisage that in case of ambiguity, a provision should be so read as to avoid hardship, inconvenience, injustice, absurdity and anomaly. It was held that since a statute can never be exhaustive, courts have jurisdiction to pass procedural orders, though not specifically contemplated by statute and that such innovation is permissible on the basis of authority supported by the principles of justice, good sense and reason.

9. Certain other decisions were also referred to by learned counsel which are on similar lines.

10. On behalf of the Respondent it was submitted that Section 13-B had been introduced in the 1949 11

Act by way of amendment in 2001 to make special provisions for Non-Resident Indians who return to India and are in need of immediate possession of their building or buildings let out by them. Such benefit had been made available to a Non-Resident Indian only after a period of five years from the date on which the Non-Resident Indian became the owner of such building. It was contended that the provisions of the 1949 Act and, in particular, Section 13-B thereof, would have to be very strictly construed on account of the object with which it had been enacted. In this regard reference was made to a decision of this Court in Prithipal Singh vs. Satpal Singh (Dead) through its LRs. [(2010) 2 SCC 15], where an ex-parte eviction order based on ground of bonafide requirement of landlord was recalled by the Rent Controller exercising jurisdiction under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Civil 12

Procedure Code. The said order was affirmed by the High Court observing that in view of Rule 23 of the Delhi Rent Control Rules, 1959, the Rent Controller is conferred with power to set aside the ex-parte order of eviction in exercise of jurisdiction under the aforesaid provisions of the Code. On the said orders being questioned in this Court it was held that Rule 23 of the aforesaid Rules could not be applied in view of Section 25-B which is a special code and provides for a specific and exhaustive procedure for eviction of a tenant by a landlord on ground of bonafide requirement. The order of the High Court was, therefore, set aside and that of the Rent Controller was restored.

 

11. Reference was also made to a Bench decision of the Punjab & Haryana High Court in Ashwani Kumar Gupta vs. Siri Pal Jain [1998 (2) RCR 222], in a Civil Revision, where the very same question fell for consideration and it was held that when the 13

tenant had failed to file affidavit seeking leave to contest the proceedings within the time prescribed, the Rent Controller had no power to condone the delay. Certain other cases were also referred to on the same lines relating to the 1949 Act and Sections 13-B and 18-A thereof.

 

12. From the materials on record it is clear that the application for leave to contest the application under Section 13-B of the 1949 Act has to be made within 15 days from the date of service of the summons. In this case, the application for leave to contest the application was made one day after the said period had expired. The issue for consideration before us is whether the Rent Controller was right in rejecting the application on the ground that he had no jurisdiction to condone the delay under the Act. The matter was considered at length by the High Court, which, as indicated hereinabove, came to the conclusion that 14

Section 18-A of the 1949 Act would have an over- riding effect on all other laws inconsistent therewith and that Sub-Section (8) of Section 18-A of the 1949 Act and Section 17 of the Presidency Small Causes Courts Act, 1882, were not attracted to the facts of the case.

 

13. The views expressed by the High Court also formed the subject matter of the decision in Prithipal Singh’s case (supra), though in the context of the Delhi Rent Control Act, 1958, and the rules framed thereunder. This Court was of the view that Section 25-B of the Delhi Rent Control Act was a complete Code by itself and other provisions could not, therefore, be brought into play in such proceedings. In the instant case, the same principle would apply having regard to the fact that the Rent Controller had not been conferred with power under Order 9 Rule 13 C.P.C. to recall an ex-parte order passed earlier. 15

 

14. Apart from the above is the view taken by this Court in Prakash H. Jain vs. Marie Fernandes[(2003) 8 SCC 431], where it was specifically held that since the Competent Authority under Section 40 of the Maharashtra Rent Control Act, 1999, was not a court but a statutory authority with no power to condone the delay in filing an affidavit and application for leave to contest, the Competent Authority had no other option but to pass an order of eviction in the manner envisaged under the Act.

15. The decision in Mukri Gopalan’s case (supra) relied upon by Mr. Ujjal Singh is distinguishable from the facts of this case. In the facts of the said case, it was the District Judges who were discharging the functions of the Appellate Authority and being a Court, it was held that the District Judge, functioning as the Appellate 16

Authority, was a Court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case. The decision in Gaya Prasad Kar’s case (supra) is also of little help to the Petitioner since under the West Bengal Premises Tenancy Act, 1956, powers have been vested in the Rent Controller to extend the time for making deposits of arrears of rent, which would make the provisions of the Limitation Act applicable in such specific instances.

 

16. The instant case stands on a different footing and, in our view, is covered by the decision of this Court in Gaya Prasad Kar’s case (supra), 17

wherein it was held that the Competent Authority had no other option but to pass an order of eviction since it had no power to condone the delay in filing an application for leave to contest.

17. Section 13-B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. 18

There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.

 

18. In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the Petitioner’s application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18-A(2) thereof.

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19. The Special Leave Petition must, therefore, fail and is dismissed accordingly. However, there will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi

Dated:27.08.2010