ALLIED LAWS

20. Additional Evidence – Translated document would not amount to additional Evidence. [Civil Procedure Code, 1908; Or. 41 R. 27]

Chandreshwar Bhuthnath Devasthan vs. Baboy Matiram Varenkar  (2018) 12 Supreme Court Cases 548

The Defendant in support of the title had filed certain documents in Portuguese language in trial court. The English translation of the said document was submitted before the First appellate court. The first appellate court in para 43 of its judgment observed that there was no application filed under the provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short ‘the CPC’) for producing the additional translation of the original document. As such translation could not be taken on record prayer had been disallowed for taking English version on record, which the High Court upheld.

It was held that the translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document, its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title. Accordingly, the matter was set aside to the first appellate authority to re-assess the evidence taken into consideration.

21. Conditional Gift – Cancellation during lifetime is held to be proper. [Transfer of Property Act, 1882; Section 122, 123]

S. Sarojini Amma vs. Velayudhan Pillai Sreekumar AIR 2018 Supreme Court 5232

In the facts of the case, in expectation that, Respondent would look after Appellant and her husband and also for some consideration, appellant executed a purported gift deed in favour of Respondent. Gift deed clearly stated that, gift would take effect after death of Appellant and her husband.

It observed that a conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.

It was held that, in the present case, since the appellant applied for cancellation before the death of the appellant, there was no completed gift of the property in question by the Appellant to the Respondent and the Appellant was within her right in cancelling the deed.

22. Consumer – Person purchasing goods for self employment is considered as a ‘consumer’. [Consumer Protection Act, 1986; Section 2(1)(d)]

Paramount Digital Color Lab and Ors. vs. Agfa India Pvt. Ltd. and Ors. AIR 2018 Supreme Court 3449

Complaint was filed where the State Commission directed Respondents to pay compensation on account of loss, mental and physical torture and expenses of Appellants. Appeal was filed by Respondents which was allowed on ground that Appellants should not be considered as consumers.

The facts show that the appellants being unemployed graduates decided to start a business of photography in partnership for self-employment and for their livelihood. For such purpose, they purchased a developing and printing machine which eventually failed to work due to a defect in a pre-loaded software. A contention was made by the respondents that the Appellants do not come under the definition of ‘Consumer’ under the Consumer Protection Act, 1986, since the appellant intended to use the goods for ‘Commercial Purposes’, which the ‘Act’ specifically prohibits.

It was observed that the point to be considered was whether the Appellants had purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”.

It was held by the Hon’ble Supreme Court that the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing’ or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood. Accordingly, the appeals were allowed.

23. Hindu Law – Under the principles of prestine Hindu Law, daughters would not inherit properties of their father if there are male survivors and widows. [Hindu Succession Act, 1956; Section 14]

Kunnath Narayani and Ors. vs. Kunnath Kochan and Ors. AIT 2018 Kerala 141 Full Bench

There was a difference of opinion between the different schools of Hindu law as to the nature of the right that would be inherited by a daughter. The Courts in Bengal and Madras have consistently decided in a series of decisions that the daughter takes only a qualified estate, though the courts of Bombay have taken the view in some cases that the daughter inherits the property absolutely. Where the daughter succeeds to the estate of the father in the absence of male survivors under the principles of pristine Hindu law, the estate would be a qualified one and the same would certainly ripen into an absolute one by virtue of section 14 of the Act. Hence the full bench was constituted in order to resolve such issue.

Before the Full bench, the facts stated that the Plaintiff is the sister of the defendants. The suit was filed raising the contentions that the suit property belonged to the father of the parties, Perachan, who died prior to enforcement of the Hindu Succession Act. The deceased was survived by his wife, his sons, the defendants and his daughters; they contended that since the plaintiff (daughter) and her sister were unmarried, they acquired limited ownership in the suit properties on the death of their father; they also contended that the said limited ownership became absolute ownership by virtue of section 14 of the Act; further they contended that the plaintiff’s sister died unmarried and issueless on 10-9-1972; that the mother died on 22-8-1985 and that since the plaintiff’s sister and mother are survived by the plaintiff and defendants, the plaintiff is entitled to l/3^rd share over the suit properties which are in joint possession of the plaintiff and defendants. As defendants did not accede to the demand of the plaintiff to partition the property, the suit was laid.

Defendants contested the suit contending mainly that they being the male children of Perachan (father), the suit properties devolved on them exclusively on the death of their father in terms of the principles of Hindu Mitakshara Law applicable to them and they are in exclusive possession of the same.

The Full bench held that Hindu Woman’s Right to Property Act was introduced in circumstances to give better rights to woman in respect of property. However, said statute only applies to Hindu widows and not to other Hindu females. Rights to Hindu females are governed by principles of Hindu Law till the Act came into force. Under the principles of Mithakshara Law, self-acquired properties and separate properties of the Hindu male devolves in the heirs by succession and not to his coparceners. But, daughter, mother and to grandmother were recognised as heirs only to one who died without male issues. As regards order of succession among them, daughter does not inherit until all widows are dead and gone. Under principles of Hindu Law, daughters would not inherit properties of their father if there are male survivors and widows. In case where daughter succeeds to estate of father in absence of male survivors under principles of Hindu Law, estate would be qualified one and same would certainly ripen into absolute one by virtue of section 14 of Act.

In the facts of the present case, the plaintiff being the daughter of Perachan was not covered by the Hindu Women’s Rights to Property Act. The Court held that as the plaintiff was unmarried at the time when the succession opened, she had only a right to claim maintenance out of the income from the properties till her marriage. When the plaintiff has not acquired any right in the property, as explained in the various decisions of the Apex Court and High Courts referred to in the case, the application of section 14 of the Act does not arise in her case.

24.  Partnership Firm – Properties allotted to Partners vide a valid dissolution deed – Transfer not valid if no valid deed of Conveyance. [Partnership Act, 1932; Section 48, 14; Registration Act, 1908; Section 17(1)]

State of Kerala and Ors. vs. V.D. Vincent AIR 2018 Kerala 199

The facts of the case show that there were partners in a Firm who were entitled to a transfer of registry of the properties accruing to them consequent to the dissolution of the Firm, without there being a registered document, transferring the interest of the partner, who had the ownership of the property, prior to it being brought into the stock of the Firm.

It was observed that a dissolution deed, that merely allocates items of immovable properties to a partner, proportionate to his share in the assets of the firm without conveying title of the said property to him, does not confer on the said partner a right to obtain mutation of the property in his name, under the Transfer of Registry Rules.

It was held that only a valid deed, duly registered, can convey the title over immovable property to the writ petitioners, and it is only thereafter that they can seek a transfer of registry in respect of the said items of immovable property.