Category: Allied Laws

The petitioner-plaintiff was not allowed to exhibit two documents in a suit, namely, family settlement and a map annexed thereto on the ground that the same were not registered and duly stamped. The petitioner contented that it was not required for a settlement to be registered with the Office of the Registrar as these documents were simply a recitation of past events.

The Court relying on the decision of Roshan Singh v. Zile Singh, AIR 1988 SC 881, held that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration u/s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely in incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document.

Two propositions therefore flow : Firstly, a partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872. Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered to prove the fact of partition.

In view of the aforesaid, the Court allowed the writ petition.

The appellant and respondents (1-6) are brothers and sisters and are governed by Hanife School of Muslim Law. The other respondents are sons and daughters of second wife and other relatives. The suit was filed by one of the sisters against the brother and other sisters to get partition with respect to certain properties.

The properties in dispute were recorded in the name of mother Bibi Jainab (first wife). The father of the appellants and defendants had executed one of the properties to his wife in lieu of dawar debt. The Trial Court held that the plaintiff was entitled to get partition. The appeal was filed contending that the Trial Court has wrongly decided the issue considering the principles of Hindu law, where a property is not the absolute property of a female, if the source, from which the property has been purchased, is proved to be of the joint family or by the husband, then it will not be considered to the property of the female. But in the Muslim law, all the properties in the name of muslim lady belong to her, irrespective of source of money, from which it was purchased. The plaintiff is the full-blood sister of the defendants, thus, the plaintiff and the defendants are the legal heirs and successors of their deceased father, Md. Yakub and deceased mother, Jainab Khatoon. The partition suit was filed for preparing of separate ‘takhta’ for the plaintiff after granting a decree of 1/12th share in the properties of her father, Md. Yakub and her mother, Jainab.

The defendant alleged that no property is joint as claimed by the plaintiff. They also claimed that after the death of their parents, the parties have amicably settled their properties and the defendant and the plaintiff was allotted specific share.

The Court referred to certain salient features of Muslim law of succession which distinguish it from modern Hindu law of inheritance, the Muslim law of succession is basically different from the parallel indigenous systems of India. The doctrine of janmswatvavada (right by birth), which constitutes the foundation of the Mitakshara law of succession, is wholly unknown to Muslim law. The law of inheritance in Islam is relatively close to the classical Dayabhaga law, though it differs also from that on several fundamental points. The modern Hindu law of succession as laid down in the Hindu Succession Act, 1956 is, however, much different from both the aforesaid classical systems; it has a remarkable proximity, in certain respects, to the Muslim law of inheritance.

Whatever property one inherits (whether from his ancestors or from others) is, at Muslim law, one’s absolute property — whether that person is a man or a woman. In Muslim law, so long as a person is alive, he or she is the absolute owner of his or her property; nobody else (including a son) has any right, whatsoever, in it. It is only when the owner dies and never before that the legal rights of the heirs accrue. There is, therefore, no question of a would-be heir dealing in any way with his future right to inherit.

The Indian legal concepts of ‘joint’ or ‘undivided’ family, ‘coparcenary’, karta, ‘survivorship’, and ‘partition’, etc., have no place in the law of Islam. A father and his son living together do not constitute a ‘joint family’; the father is the master of his property. The same is the position of brothers or others living together.

Unlike the classical Indian law, female sex is no bar to inherit property. No woman is excluded from inheritance only on the basis of sex. Women have, like men, right to inherit property independently, not merely to receive maintenance or hold property ‘in lieu of maintenance’. Moreover, every woman who inherits some property is, like a man, its absolute owner; there is no concept of either streedhan or a woman’s ‘limited estate’ reverting to others upon her death. The same scheme of succession applies whether the deceased was male or a female.

Since all properties in the name of a female belongs to her exclusively and there is no concept of jointness of nucleus or any concept that the property is purchased from joint nucleus of the head of the joint family, hence, all the properties which are exclusively purchased by sale deed by Bibi Jainab in her name can be divided only between her children. Thus, the plaintiff would be granted 1/10th share in the property belonging to Bibi Jainab. A property which was belonging to the father will be divided amongst all the 17 parties in the ratio of 1/17th each and a separate takhta would be carved out.

Seema Bai (since deceased), was dashed by the driver of Marshal Jeep by driving the said vehicle rashly and negligently, due to which she succumbed to the injuries sustained in the said accident.

The Tribunal on a close scrutiny of the evidence led, material placed and submissions made, held that deceased Seema Bai was not legally wedded wife of the appellant; the appellant not being legal representative of the deceased; nor was the appellant dependent upon her, is not entitled to file claim petition u/s. 166 of the Motor Vehicles Act, and dismissed the claim petition. The appeal was filed by the appellant claiming compensation for the death of deceased Seema Bai.

The Court observed that the fact that deceased Seema Bai was not legally married wife of the appellant is not in dispute. Admittedly, one Kaushalya Bai is the legally wedded wife residing with the appellant. It was also not in dispute that the appellant was not dependant upon the deceased.

As per section 5(i) of Hindu Marriage Act, 1955, a marriage may be solemnised between any two Hindus if neither party has a spouse living at the time of marriage.

U/s. 166 of the MV Act, an application for compensation arising out of an accident of the nature specified in Ss.(i) of section 165 may be made where death has resulted from the accident, by all or any of the legal representative of the deceased.

According to section 2(11) of the Code of Civil Procedure, ‘legal representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e., u/s. 2(1)(g). The term legal representative has not been defined in the Motor Vehicles Act.

The word ‘legal representative’ occurring in section 166 of the MV Act, has the same meaning as defined u/s. 2(11) of the Code of Civil Procedure. Now if the same definition of legal representative is applied to the facts and circumstances of the present case, it was crystal clear that the appellant, admittedly was not dependent upon the deceased, is neither a person who in law represents the estate of deceased Seema Bai, nor is a successor in interest of the deceased. Therefore, if the definition of legal representative as provided u/s. 2(11) of the Code of Civil Procedure is taken in its widest amplitude even then the appellant cannot be termed as a legal representative of the deceased entitled to file claim petition before the Tribunal under the MV Act and thus, the order of the Tribunal was upheld.

Parties are wife and husband. The petition for divorce between the parties and other ancillary reliefs was pending trial. The wife, who is the petitioner, is under cross-examination. The husband relies upon certain handwritten diaries of the wife as well as a compact disk (CD) on which conversation between the wife and the husband has been recorded by the husband on certain dates. The husband has produced the transcript of the said conversation. The wife admits the handwriting in her diaries. The parties are at dispute with regard to the taped conversation on the CD. It is contended on behalf of the wife that the taped conversation cannot be relied upon as a document. It is also contended by the wife that the affidavit of documents was not filed and the instrument on which the initial conversation was recorded is not produced. The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross-examination.

The Court referred to the elementary principle of recording evidence which must be first considered. Evidence consists of examination-in-chief and cross-examination. A party is required to offer for inspection and produce the documents relied upon by him in support of his case. This is required in his examination-in-chief. This contains the oral and documentary evidence.

The Court further observed that the accuracy of the tape-recorded conversation is of utmost importance since the document, which is a CD having tape-recorded conversation, is liable to erasure or mutilation. Thus it would be for the defendant to show that it was the original recording. This could be done by producing the initial record or the original electronic record. This original electronic record, which is primary evidence, is the instrument on which the original conversation is recorded. The defendant has not produced that evidence. The defendant has not shown the mechanical/ electronic process by which the CD was obtained. The defendant has relied upon the CD per se. That, being a copy, is secondary evidence. At the stage at which the CD is sought to be produced (that is in the cross-examination of the plaintiff), the defendant is permitted not to produce the original electronic record. The copy of such record, being the CD, can itself be used for confrontation in the cross-examination. Much will depend upon the answers in the cross-examination by the plaintiff. If however, the defendant desires to set up a specific case, for which the evidence is contained in the CD, he would be required to satisfy the test of accuracy by producing the original electronic record.

It must be mentioned that evidence is to be considered from three aspects; admissibility of evidence, recording of evidence and appreciation of evidence. It is settled law that tape-recorded conversation is admissible in evidence. What must be of importance is how the tape-recorded conversation is to be recorded as evidence and appreciated thereafter. Recording can be in the cross-examination of the other side and/or in the evidence of the recorder himself. The appreciation of evidence would require consideration of the aforesaid three requirements; identification, relevancy and accuracy. It is left to the defendant to pass those tests. If the tests are not passed, the tape-recorded conversation would be of no use in effect ultimately.

The requirement of sealing the recorded conversation would not be applicable in this case. That requirement is of essence in a criminal case where during investigation the conversation of a party is recorded by the investigating officer. He would certainly be required to seal the tape-recorded conversation and keep it in a safe custody so as to play before the Court at the time of the trial. It has nevertheless to be shown to be accurate and untampered with.

It was the case of the plaintiffs that plaintiff No. 2 who was the daughter of late Arumugha Mudaliar and plaintiff No. 1 was the son of plaintiff No. 2, i.e., grandson of late Arumugha Mudaliar. Arumugha Mudaliar had three children, namely, Mangalam, Saraswathi and Jayasubramanian. Jayasubramanian, the only son had expired in 1982. As the son of late Arumugha Mudaliar had expired, he had adopted Santhilkumar, his grand-son, the son of his daughter Saraswathi and plaintiff No. 1, by executing an adoption deed after doing necessary rituals required to be performed under Hindu Law. Late Arumugha Mudaliar had thereafter executed a registered Will whereby the properties referred along with other properties had been bequeathed and properties referred to in the schedule attached to the plaint had been disposed of in favour of his daughter Saraswathi and his grandson Santhilkumar, i.e., the plaintiffs.

As the defendants i.e., the present appellant and respondent Nos. 3 and 4 were interfering with or were likely to interfere with the possession of the properties referred to, a suit was filed by Saraswathi and her son Santhilkumar who was minor at the relevant time. The said suit was dismissed for the reason that the Trial Court did not believe that Santhilkumar was properly adopted by late Arumugha Mudaliar and the properties which had been bequeathed in the will were ancestral properties and, therefore, late Arumugha Mudaliar did not have absolute right to dispose of the same.

On appeal the Court observed that so far as the adoption of Santhilkumar was concerned, the said adoption had been duly established before the Trial Court. Late Arumugha Mudaliar had followed the rituals required as per the provision of Hindu Law while adopting Santhilkumar as his son. There was sufficient evidence before the Trial Court to establish that Santhilkumar had been validly adopted by late Arumugha Mudaliar. Shri Kandasamy , a witness, had been examined in detail, who had placed on record photographs taken at the time of the ceremony. The said witness had given details about the rituals performed and the persons who were present at the time of the adoption ceremony and the deed of adoption had also been registered. The aforestated facts leave no doubt in mind that the adoption was valid. Even the photographs and negatives of the photographs which had been taken at the time of adoption are forming part of the record. In such a set of circumstances, there was no reason to disbelieve the adoption. Therefore, it was held that Santhilkumar was the legally adopted son of late Arumugha Mudaliar.

So far as execution of the Will was concerned, the said Will had been duly registered. For the purpose of proving the Will, one of the attesting witnesses of the Will, namely, Umar Datta had been examined. In his deposition, he had stated that he was present when the said Will was being written by Kalyanasundaram. The scribe of the Will had also been examined. Thus the Will was proved. The decree of the Trial Court was set aside.