ALLIED LAWS

Prabodh Ch. Das and Ors. vs. Mahamaya Das and Ors.; AIR 2020 SC 178

The question for consideration is whether the High Court is justified in dismissing the second appeal on merits in the absence of the learned counsel for the appellants. It was held that, with the explanation that was introduced in Order 41 Rule 17(1) w.e.f. 1^st February, 1977 to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits – thus, Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing.

In other words, if the appellant does not appear, the Court may, if it deems fit, dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits. Therefore, the impugned judgment was set aside and it was directed to remit the matter to the High Court for fresh disposal in accordance with the law.

Abhimanyu Kumar Singh vs. Branch Manager, I.D.B.I. Bank Ltd. and Ors.; AIR 2020 Patna 22

The petitioner filed a case that the property in question which was mortgaged with the bank by his father and an equitable mortgage was created by way of deposit of title deed, happened to be a joint Hindu family property. The fact that the petitioner is a coparcener and the property in question had been mortgaged without his consent, means that the 1/4^th share of the petitioner cannot be attached and sold by auction.

The High Court held that the fact remains that the property in question is in the individual name of the father of the petitioner (mortgagor), the mutation and rent receipts remained in his individual name and he could very well satisfy the bank that he happened to be the absolute owner of the property and for his business he was mortgaging the land with the bank by deposit of title deed.

Further, in a Hindu Undivided Family there would be a presumption of jointness and the burden to prove that there was a partition lies upon the person who claims the partition. It is well settled that even within an HUF, a member of the family may create self-acquired and personal property. It is only when such self-acquired property is brought into the hotchpotch of the joint family that the property acquires the status of a joint family property.

3.       Partnership – Dissolution– Partnership which is not at will cannot be terminated by notice u/s 43 [Partnership Act, 1932, S. 43]

Manohar Daulatram Ghansharamani vs. Janardhan Prasad Chaturvedi and Ors.; AIR 2019 Bombay 283

An issue arose with respect to the dissolution of a partnership firm upon issuance of a notice u/s 43 of the Indian Partnership Act, 1932. It was held that the terms of the partnership deed clearly stipulate that the partnership was entered into for the purpose of developing the property and constructing buildings. Thus, the partnership deed did not expressly spell out a fixed term of duration. Nevertheless, the terms of the contract indicate that the partnership was to end after completion of construction of the buildings, obtaining completion certificates and execution of conveyance in favour of the society. The terms of the contract thus imply that the duration of the partnership was until completion of construction and execution of conveyance. Further, the partnership deed also provides for dissolution of partnership in the event of insolvency or death of any of the partners.

Therefore, it was held that where a partnership deed which contains a provision for duration of the partnership or for the determination of the partnership, cannot be a partnership at will. As a corollary thereof, the partnership that is not a partnership at will cannot be legally terminated by a notice u/s 43 of the Partnership Act. Consequently, sending of notice u/s 43 of the Partnership Act, 1932 seeking dissolution of partnership is of no consequence.

Chankaya vs. State and Ors.; AIR 2020 Delhi 30

A petition was filed u/s 226 of the Indian Succession Act, 1925 seeking grant of probate in respect of the document, purported to be the validly executed last Will of deceased Shri D.C.S., grandfather of the petitioner.

The petitioner has contended that he is aware of the whereabouts of the witness and time and again assured that he would produce the said witness before the Court. However, the same was not done. Later the petitioner contended that the whereabouts of the witness was not known. The petitioner did not exhaust all the remedies for producing the witness before the Court. The petitioner could have resorted to Order 16 Rule 10 of the Civil Procedure Code, 1908 for the purpose of seeking appearance of the attesting witness. No assistance was taken from the Court to summon the said witness.

The Court held that, the burden of proof in the present case, to prove the document claimed to be the validly executed last Will of the deceased, lay on the petitioner who propounded the same. Indisputably, none of the attesting witnesses had appeared before the Court to prove the Will. Thus, the petitioner has failed to prove that the document is a Will executed by the late Shri D.C.S. and accordingly the said issue is decided against the petitioner. Therefore, the said Will has not been proved.

5.   Writ – Jurisdiction of High Court – Alternative remedy – Writ jurisdiction can be exercised in respect of orders passed by the Armed Forces Tribunal (AFT) – No blanket ban on exercise of writ jurisdiction because of alternative remedy [Armed Forces Tribunal Act, 2007, S. 34, S. 15, Constitution of India, Art. 226]

Balkrishna Ram vs. Union of India; AIR 2020 SC 341

An issue arose before the Hon’ble Supreme Court whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal, or should be heard by the High Court. It was held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such a remedy, however, does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well-settled principle that such jurisdiction should not be exercised when there is an alternative remedy available. The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT.