Category: Allied Laws

FACTS
Plaintiffs filed suit for declaration of right, title, interest and injunction in respect of the suit property. The trial Court dismissed the suit on the ground that the defendants had adverse possession on the basis of an unregistered sale document dated 29th September, 1960. They had tendered the document as an ancient document and accordingly the trial Court found in favour of the defendants, to have perfected their title by adverse possession. The first appellate Court relied on Section 17 of the Registration Act, 1908, to hold that a document of sale of immovable property valued at more than Rs. 100 was compulsorily registerable. A compulsorily registerable document, not registered, could not be relied upon in evidence.

HELD
It was held by the High Court that finding by the Trial Court on adverse possession was clearly wrong. Adverse possession can be claimed only on the evidence adduced of possession, openly and hostile to the real owner. There cannot be a finding on adverse possession, when the claim is based on a document, inadmissible in evidence.

17 Mrs. Umadevi Nambiar vs. Thamarsseri  AIR 2022 SUPREME COURT 1640 Date of order: 1st April, 2022 Bench: Hemant Gupta and V. Ramasubramanian, JJ.

FACTS
The suit property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters. One of the daughters i.e., Umadevi Nambiar (appellant) executed a general Power of Attorney on 21.07.1971 in favour of her sister Smt. Ranee Sidhan and registered it. The said power was cancelled on 31.01.1985. But in the meantime, the sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. The assignees/releasees had further sold the property. The purchaser of the property from the assignees/releasees is the Respondents herein. The appellant filed a suit for partition of her share in the property. The trial Court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the Respondent was allowed by a Division Bench of the High Court holding that though the power of attorney did not contain power to sell but the Respondent was a bona fide purchaser as the appellant had constructive notice of sale through Power of Attorney. Therefore, the appellant has come up with the above appeal.

HELD
The Supreme Court, held that there remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no Clause in the deed authorizing and empowering the agent to sell the property. Thus, the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. Unfortunately, after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the Respondent cannot claim the benefit of Section 41 of the Transfer of Property Act, 1882 (Bonafide Purchase), the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Transfer of Property Act, 1882. The High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the principal and that any unauthorized sale made by the agent will not tantamount to the principal parting with the possession. It is not always necessary for a Plaintiff in a suit for partition to seek the cancellation of the alienations. It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the Respondent. Therefore, the vendors of the Respondent could not have derived any valid title to the property. If the vendors of the Respondent themselves did not have any title, they had nothing to convey to the Respondent, except perhaps the litigation.

18 Abhimanyu Jayesh Jhaveri vs. Nirmala Dharmadas Jhaveri and another  AIR 2022 Bombay 132  Date of order: 17th December, 2021 G.S. Kulkarni, J.

FACTS
Claim of eviction from flat in question was made by Nirmala Dharmadas Jhaveri who was 89 years of age, against her son and her grandson, before the Senior Citizen’s Tribunal, Mumbai under the Maintenance and Welfare of Parents and Senior Citizens Act (56 of 2007). The son and grandson were financially well off and well placed but were torturing grandmother with greedy and acquisitive intention to grab here flat. The grandson on the basis of the will in his favour by his grandfather was claiming right over the flat. The grandmother denied the claim of the grandson based on the will as said will was not probated and contended that she was the sole owner of the flat.

HELD
It was held that both the son and the grandson have not only failed to maintain their grandmother, but also have caused mental and physical harassment and depravement to her material needs to extreme extent that she was thrown out of her own house, only with intention to grab said flat. Further, the share certificate with respect to the flat was in the name of the grandmother and the flat was shown in her Income tax returns. As the will under which grandson was claiming the rights was not probated, his claim to the flat could not be entertained. Hence, the son and the grandson were directed to vacate the flat in question.

19 U.P.S.E.B. Hathras vs. Hindustan Metal Works Hathras  AIR 2022 ALLAHABAD 132   Date of order: 11th February, 2022 Bench: Sunita Agarwal and Krishan Pahal, JJ.

Appointment of arbitrator – Death of sole arbitrator initially appointed–case of appointment of new arbitrator and not of supply of vacancy. [Ss. 8, 9(b); Arbitration Act, 1940 (10 of 1940)]
 
FACTS
An agreement was entered into between the appellant and the respondent no. 2 on 9th May, 1964, whereby the appellant had agreed to supply power to the Mill. Pursuant to a dispute, the respondent no. 2 served the notice dated 9.9.1970 upon the appellant asking to agree for appointment of a sole arbitrator in terms of the first part of the arbitration clause 18 in the agreement. The appellant agreed to the said proposal and on 29.9.1970, Mr. Justice T.P. Mukherji, a retired Judge of the Allahabad High Court was appointed as the sole arbitrator. However, before the arbitrator could enter upon the reference, unfortunately, he died. A notice dated 6.7.1982/3.8.1982 under Section 8 of the Arbitration Act, 1940 (the Act) was then served upon the appellant proposing Shri A.C. Bansal, a retired District & Sessions Judge to be the sole arbitrator. This Notice was not objected to by the appellant. On 10th February, 1983, the arbitrator put both the parties to notice intimating that he had entered into the reference and that 7th March,1983 was the date fixed for striking of issues and preliminary hearing. The appellant did not participate in the Arbitral Proceedings on the ground that the appointment was illegal and the proceedings were void ab initio. To challenge the validity of the arbitral award, it was submitted that it was a case of supplying the vacancy on account of death of the appointed arbitrator which would fall within the scope of Section 8(1)(b) of the Arbitration Act, 1940. In that case, in the event of failure of the appellant to appoint the arbitrator by supplying the vacancy after service of notice, only option before the respondent no. 2 was to approach the Court by moving the application seeking for appointment of arbitrator.

HELD
In the instant case, the sole arbitrator who was appointed in accordance with the arbitration clause 18 of the agreement with the consent of the parties could not even enter into the reference. The proceedings of arbitration had not begun. It, therefore, became a case of appointment of a new arbitrator and not of supplying the vacancy. A new arbitrator was to be appointed by the parties in terms of the arbitration clause 18, which contained two options; firstly, that a single arbitrator could be appointed by agreement between the parties or else the dispute could be referred to two arbitrators, one appointed by each party.

The failure on the part of the appellant to appoint one more arbitrator for 15 clear days after the notice had given right to the respondent to invoke Section 9(b) to appoint arbitrator nominated by it to act as sole arbitrator in the reference. It cannot be successfully argued that since the appellant had kept silent, it should be presumed as its non-concurrence to the proposal for the appointment of the sole arbitrator and the respondent had the only option to approach the Court under Section 8 of the Act, 1940. The option available to the appellant to appoint its own arbitrator, as per clause 18 of the arbitration agreement, in case of disagreement to the proposal of sole arbitrator was never exercised. In case argument of the appellant is accepted, the provision of Section 9(b) giving power to the party to appoint sole arbitrator would become redundant. The present is a case which would fall within the scope of Section 9(b) where the award passed by the sole arbitrator on account of failure on the part of one of the parties to appoint another arbitrator, was binding on both the parties as if the sole arbitrator had been appointed by consent. The silence on the part of the appellant in such a case would be treated as its consent.

20 B.V. Subbaiah vs. Andhra Bank, Hyderabad and others  AIR 2022 Telangana 78  Date of order: 31st January, 2022  Bench: P. Naveen Rao and G. Radha Rani, JJ.

FACTS
Appellant/plaintiff filed a suit for recovery of amount of Rs. 19,46,701.31 with subsequent interest at the rate of 18% p.a. against the defendant bank for recovery of his legal fees. The defendant bank, though a nationalized bank, had not chosen to pay his fees, not even the expenses incurred, in spite of several requests made by him. The defendants contended that the suit is barred by limitation as it was instituted nearly eight years after the judgment in O.S. No. 1211 of 1991 and nearly 10 or more years after the results of other cases. The fee was claimed beyond three years after the result of the cases. Further, the suit was not filed within three years of the termination of his services in the respective cases and thus as per Article 18 of the Limitation Act, suit has to be instituted within three years on completion of work and when payment was due. The trial court dismissed the suit without costs holding that the suit was barred by time and that the plaintiff was not entitled for recovery of suit amount.

HELD
It is apparent from the reading of both Articles 18 and 113 of the Limitation Act that though the period of limitation is three years, but under Article 18 it begins to run when the “work is done” and under Article 113 it begins to run when the “right to sue” accrues. A professional activity cannot be considered as a commercial activity and the term ‘price’ is not synonymous with the term ‘fee’. In M.P. Electricity Board and others vs. Shiv Narayan and others (2005) 7 SCC 283, the Hon’ble Apex Court held that there is a fundamental distinction, therefore, between a professional activity and an activity of a commercial character. In Dharmarth Trust, Jammu and Kashmir, Jammu and others vs. Dinesh Chander Nanda 2010 (10) SCC 331, the Hon’ble Apex Court held that the term ‘Price’ does not cover the services provided by the professionals such as Architect, Lawyer, Doctor, etc., as professionals charge a ‘fee’. Also, the term ‘work done’ will not be applicable to professionals such as Architect, Lawyer, Doctor, etc. as these professionals render services to their clients. The remuneration of a professional is in the form of a ‘fee’ and therefore, it cannot be said that the professional earns a ‘price’.

It was thus held that the price of work done is not applicable to professionals and therefore Article 18 of the Limitation Act is not attracted to the claim of the plaintiff.

It was further held that an advocate was entitled to be paid his full fee and a change of advocate could not be made without the permission of the court and the right to fee of a counsel was not dependent on the quantum of work that he actually did in the court. It was also held that the conduct of the defendants, a Nationalized Bank, towards their standing counsels of adopting dilatory tactics and raising technical pleas to avoid payments and making him to take recourse to prolonged litigation by wasting the time not only in terms of money but also the valuable time of the counsel and the court is highly reprehensible. The Trial Court order was set aside.

15 Rasool Mohammed (Dead) Thru. LRs. vs. Anees Khan and others
AIR 2023 (NOC) 315 (MP)
Date of order: 24th March, 2023

Power of Attorney – Legal Heir appointed – Permission to lead evidence – [Code of Civil Procedure, 1908, Order 3, Rule 2]

FACTS

The original Plaintiff filed a civil suit for declaration and permanent injunction before the Trial Court. During the pendency of the civil suit, the original Plaintiff Rasool Mohammad expired, and a legal representative, i.e., wife, was added as the legal heir. The Plaintiff petitioner executed a Power of Attorney on 1st September, 2016 and authorised Zaheer Qureshi to proceed on behalf of her in the said civil suit. The Trial Court allowed the objection of the Respondents that the Power of Attorney holder was not competent to exhibit the documents on his behalf and therefore was not allowed to lead evidence.

Hence, the appeal.

HELD      

The Court held that after perusal of the provisions of Order 3 Rule 2 of the Code of Civil Procedure, it is evident that there is no provision for permitting the Power of Attorney holder to depose in place of the original plaintiff. The Petitioner being a lady aged about 55 years is duly competent to appear before the Court for deposition. In such circumstances, it is clear that the Power of Attorney holder cannot be permitted to depose if the Plaintiff is in a position to appear before the Court for deposition.

Even if it is ascertained that the Power of Attorney holder is aware of the facts and circumstances of the case, even then the Power of Attorney holder can only be permitted in exceptional circumstances.

The appeal was dismissed.

16 Shrimati Geeta Bai and Others vs. Ramavatar Agrawal
AIR 2023 (NOC) 325 (CHH)
Date of order: 3rd August, 2022

Gift – Gift deed – Unilateral cancellation deed by the donor is void and non-est. [Transfer of Property Act, 1882, S. 122]

FACTS

The Defendant is the original Plaintiff. It was the case of the Defendant that the property had been transferred by way of gift and possession had been handed over by the appellant. After the execution of the gift deed, the name of the donee was recorded in the revenue records. Thereafter, it was found that a cancellation deed had been unilaterally effected without notifying the donee. Therefore, an injunction was sought, praying that the defendant be declared the owner of the land and that his peaceful possession and enjoyment of the property shall not be disturbed. The trial Court decreed the suit.

Hence, the present appeal.

HELD

The Court held that the gift was valid in accordance with section 122 of the Transfer of Property Act, 1882. The gift was accepted by the donee, and after the execution of the gift, the name of the donee was recorded in the revenue records. The documents having been registered will have a presumptive value of correctness unless proven otherwise. Once the gift deed is executed in terms of Sections 122 and 123 of the Transfer of Property Act, then the unilateral cancellation of the deed by the donor is void and non-est. Such a cancellation deed could be ignored as invalid.

The Appeal was dismissed.

17 V. R. S. V. N. Sambasiva Rao vs. V. Rama Krishna
AIR 2023 (NOC) 259 (AP)
Date of order: 18th January, 2023

Civil Contempt – Wilful Disobedience of order – Regularisation – Tactics by Authorities – Action would amount to contempt of Court [Contempt of Courts Act, 1971, Ss. 2(b), 10, 12]

FACTS

The petitioner had filed a writ petition against the action of the respondents in not regularising his services, and the Court has passed an order directing the respondents to regularise the services. Despite the petitioner submitting several representations before the respondents seeking regularisation, the respondents neither passed any orders nor complied with the Orders of the Court in true spirit.

Hence, the present case.

HELD

The order of the Court is not complied with on the grounds that the writ appeal and review petition is pending. The Court held that this type of tactic by the respondents to avoid implementing the orders of the Court cannot be tolerated and that the action of the respondents would amount to contempt of court. Under these circumstances, the apology tendered by the respondents was found unacceptable and in the opinion of the court it was not bonafide.

Non-compliance with the Court’s order would amount to contempt of Court. The respondents in the present appeal had sought adjournments several times for compliance, and taking advantage of adjourning the cases, they preferred appeal and, after the dismissal of the appeal by the Division Bench, again sought time for compliance and again filed a review petition.

The Contempt Case is allowed, and the Contemnors are sentenced.

18 Amrik Singh (Dead) Through L.Rs. and another vs. Charan Singh (Dead) Through L.Rs. and others
AIR Online 2023 P&H 140
Date of order: 2nd February, 2023

Wills – Attesting witnesses – Ancestral and self-acquired land – Suspicious circumstances [Specific Relief Act, 1963, S.34; Indian Succession Act, 1925, S. 63]
    
FACTS

The first Will was executed by Kishan Singh on 18th July, 1980. This registered Will was in favor of the defendant-appellants (Amrik Singh and Mewa Singh). This was proved in Court by the attesting witnesses. The second Will was allegedly executed by Kishan Singh on 20th February, 1981. This Will is in favor of all the four sons of Kishan Singh, and they were to inherit in equal shares. The Trial Court dismissed the suit of the plaintiff-respondents and disbelieved the will dated 18th July, 1980. The lower Appellate Court declared that both the wills stood rejected and hence property would devolve by way of natural succession; therefore, partly decreed the suit for joint possession to the extent of 1/7th share each in the suit land as well as the compensation.

Hence the present appeal.

HELD

The Court held that it had no  doubt that the Will executed by Kishan Singh, which is a duly registered document, is not surrounded by any suspicious circumstances of any kind and is proved to have been duly and properly executed. Mere deprivation of some of the natural heirs by itself is not a suspicious circumstance to discard a Will. Divesting of close relations being the purpose of execution of a Will, this is normally not a suspicious circumstance.

A Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

The appeal is allowed.

19 Adityaraj Builders vs. State of Maharashtra
WP Nos. 4575 of 2022 dated 17th February, 2023 (Bom)(HC)

Stamp Duty – Redevelopment – Endorsement of instruments on which duty has been paid – Reference to re-development and homes are to be read to include garages, galas, commercial and industrial use and every form of society re-development – No stamp duty on permanent alternate accommodation agreement. [Maharashtra Stamp Act, 1958, Section 4]

FACTS

The petitioners raised a common question of law under the Maharashtra Stamp Act, 1958. It relates to Stamp Duty sought to be levied on what is called Permanent Alternate Accommodation Agreements (“PAAA”). The challenge was against two circulars issued by the Inspector General of Registration & Controller of Stamps, Maharashtra under the authority of the Chief Controlling Revenue Authority and the State Government of Maharashtra, dated 23rd June, 2015 and 30th March, 2017.

The first circular directed that any PAAAs between the society members and the developer is different from the (DA) between the society and the developer. The second circular which came out as a clarificatory circular specifies compliance and the criteria for such compliance to the PAAAs with individual society members. The Stamp authorities contended that on contentions of the payment of stamp duty in incidents where there is an increase of additional area or square footage after redevelopment and the question of members having to pay stamp duty on the acquisition of additional built-up area or carpet area derived from fungible FSI.

The question before the High Court was whether the demand by the Stamp Authority that the individual PAAAs for members must be stamped on a value reckoned at the cost of construction and a question of validity regarding the two circulars dated 23rd June, 2015 and 30th March, 2017?

HELD

Impugned Circulars dated 23rd June, 2015 and 30th March, 2017 were held to be beyond the jurisdictional remit of revenue authorities to dictate instruments what form the instruments should take. The court held as under:

a)    A Development Agreement between a cooperative housing society and a developer for the development of the society’s property (land, building, apartments, flats, garages, godowns, galas) requires to be stamped.

b)    The Development Agreement need not be signed by individual members of the society. That is optional Even if individual members do not sign, the DA controls the re-development and the rights of society members.

(c)    A Permanent Alternative Accommodation Agreement between a developer and an individual society member does not require to be signed on behalf of the society. That, too, is optional, with the society as a confirming party.

d)    Once the Development Agreement is stamped, the PAAA cannot be separately assessed to stamp beyond the Rs. 100 requirement of Section 4(1) if it relates to and only to rebuilt or reconstructed premises in lieu of the old premises used/occupied by the member, and even if the PAAA includes additional area available free to the member because it is not a purchase or a transfer but is in lieu of the member’s old premises. The stamp on the Development Agreement includes the reconstruction of every unit in the society building. The stamp cannot be levied twice.

e)    To the extent that the PAAA is limited to the rebuilt premises without the actual purchase for consideration of any additional area, the PAAA is an incidental document within the meaning of Section 4(1) of the Stamp Act.

f)    A PAAA between a developer and a society member is to be additionally stamped only to the extent that it provides for the purchase by the member for actually stated consideration and a purchase price of an additional area over and above any area that is made available to the member in lieu of the earlier premises.

g)    The provision or stipulation for assessing stamp on the PAAA on the cost of construction of the new premises in lieu of the old premises cannot be sustained. Further, held that reference to re-development and homes is to be read to include garages, galas, commercial and industrial use and every form of society re-development.

The Court also held that these findings are not limited to the facts of the present cases before the court.

The Supreme Court was dealing with an appeal filed against order whereby High Court had dismissed election petition holding that corrupt practices pleaded in the petition were not proved and hence, election could not be set aside u/s. 100(1)(b) of the Representation of People Act, 1951. The corrupt practice alleged were use of objectionable speeches, songs and announcements which were recorded using other instruments and by feeding them into computer, CDs were made therefrom which were produced in the court. However, the same were produced without due certification in terms of section 65B of the Evidence Act 1872. It was held that in case of CD, VCD, chip, etc., same shall be accompanied by certificate in terms of section 65B of the Evidence Act obtained at the time of taking the document, without which, secondary evidence pertaining to electronic record is inadmissible in respect of CDs. Thus, whole case set up regarding corrupt practice using songs, announcements and speeches fall to ground.

Nomination was made by the deceased father in the name of married daughter. Co-operative society implemented the nomination. Other legal heirs challenged the same before Dy. Registrar and succeeded. The single bench of the high court reversed the order of the Dy. Registrar. The division bench substantially set aside the order of the single bench. Hence, married daughter filed appeal to the Supreme Court.

The Supreme Court held as under :

(1) In view of section 79, where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. (2) Rule 128 provides that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate (issued by a Court of competent jurisdiction).

(4) Transfer of share or interest, based on a nomination u/s. 79 in favour of the nominee, is with reference to the concerned cooperative society, and is binding on the said society. The cooperative society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules). However, that would have no relevance to the issue of title between the inheritors or successors to the property of the deceased.

Reassessment u/s. 12-A of the Act was passed on the basis of the judgment dated 25.11.2004 of this Court in the case of Pali Chemical Industries, Nippani, Belgaum vs. The Additional Commissioner of Commercial Taxes, Zone-I, Bangalore and another reported in 2005 (58) KLJ 54 (HC) (DB), that the chemical fertilizer mixture is not eligible for exemption from turn over tax even if its components have already suffered local tax under the Act.

The Tribunal after noticing that, while delivering the judgment in Pali Chemical Industries case, the decision in the case of State of Karnataka vs. Kothari Industrial Corporation, reported in 2000-01 (5) K.C.T.J. 193 was not noticed or brought before the Hon’ble High Court by the parties concerned in Pali Chemical Industries case, held that the judgment in Pali Chemical Industries case cannot be considered as a binding precedent.

The High Court observed that we would like to place on record that we are very much disturbed by the tendency exhibited by the lower authorities in refusing to follow the law laid down by this Court saying that the same is not binding on them merely because other binding precedents are not taken into consideration in those judgments. It appears that the Tribunal has assumed the power to declare the judgment of the Division Bench of this Court as per incuriam and thereby refused to follow the judgment. The justification for such a course of action is that it is permitted to do so by another Division Bench. If this tendency is not nipped in the bud, we are afraid that there will be total lawlessness especially in the branch of Taxation Law.

The High Court further held that if another Division Bench of this Court is not persuaded to accept the said view, the only course open is to place relevant papers before the Hon’ble Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matter.

It is high time that the lower authorities learn to maintain judicial discipline and stop showing disrespect to the constitutional ethos. Breach of discipline has great impact on the credibility of the judicial institution and encourages chance litigation. It must be remembered that practicability and certainty is a hallmark of the judicial jurisprudence developed in the country in the last six decades.

The Bombay High Court held that officers after officers are reluctant to take decisions for the consequences might be drastic for them. No officer is acting independently and following judgments of this Court, but waiting for the superiors to give them a nod. Even the superiors are reluctant given the status of the assessee and the quantum of the demand or the refund claim. We are sure that some day we would be required to step in and order action against such officers who refuse to comply with the Court judgments and which are binding on them as they fear drastic consequences or unless their superiors have given them the green signal. If there is such reluctance, then, we do not find any enthusiasm much less encouragement for business entities to do business in India or with Indian business entitles. Such negative reactions / responses hurt eventually the National pride and image. It is time that the officers inculcate in them a habit of following and implementing judicial orders which bind them and unmindful of the response of their superiors. That would generate the right support from all, including those who come forward to pay taxes and sometimes voluntarily. Hereafter if such orders are not withdrawn despite binding Division Bench judgments of this Court that would visit the officials with individual penalties, including forfeiture of their salaries until they take a corrective action. If any approval or nod is required from superiors that should also be granted expeditiously and while obeying the court orders, the officers can always reserve the Revenue’s rights to challenge them in appropriate legal proceedings. A copy of order be sent to the Secretary in the Ministry of Finance, Government of India and the Chairman, Central Board of Excise and Customs.

The Reliance Industries Limited and Reliance Petroleum Limited, Jamnagar Gujarat entered into a scheme of amalgamation u/ss. 391 & 394 of the Companies Act 1956. Company petitions were filed by the transferor company in Gujarat High Court and the transferee company in Bombay High court. The Scheme was sanctioned by both the High Courts. Accordingly, stamp duty was paid in Gujarat of Rs 10 crore. When the order sanctioning the Scheme of amalgamation was presented for stamp duty adjudication in Maharashtra, the Company claimed set off of the stamp duty paid in Gujarat which was refused.

The full bench of the Bombay High court held that as the scheme of arrangement or amalgamation has no effect or force unless or until it was sanctioned by the court, it is the order sanctioning the scheme that would be an instrument u/s. 2(l) and not the scheme of amalgamation. Hence, the Company was not entitled for rebate of stamp duty paid in Gujarat.

The plaintiff was the grandson of the deceased, one B.M. Bhathena who executed a will dated 27th November, 1985 and who expired on 25th May, 1989. The deceased left behind one son and two daughters as his only heirs. They would be entitled to an equal 1/3rd share in the estate of the deceased on intestacy. The plaintiff had sought to probate the will. The plaintiff was the son of one of the daughters. The son of the deceased challenged the will of the deceased sought to be probated by the plaintiff. He was survived by the defendants.

The defendant had contended that the signatures of the deceased on pages 1 and 2 were forged. He had shown some inaccuracies in the will. He claimed that the will was not genuine and was forged.

The will of the deceased was typewritten. It ran into three pages. It was prepared in the lawyers office. It was signed by one lawyer and the managing clerk of the lawyer who prepared it. It was deposited with the sub registrar of assurances. The plaintiff evidence shows that the will had been duly executed. The attesting witness has deposed about the specific attestation of the will in the presence of the deceased.

The defendants had shown several suspicious circumstances and certain errors in the typewriting of the will. The name of the deceased was not correctly shown on page one of the will as also in the execution clause. There was an error in the name of the father of the deceased which forms a part of full name of the deceased. In line two the full name of the deceased only shows two blanks in his father’s name. The remainder of the name was correctly shown.

The Hon’ble Court observed that the name of the deceased B.M. Bathena in execution clause shows only M. Bathena. These mistakes may creep into any document. A party reading the will may or may not notice such error. The will is not on a computer printout, it is typewritten. The draft was made earlier by the steno of the advocate. The final will was typed by attesting witness who was his managing clerk. There can be a mistake in the final draft even if there was no mistake in the first draft. If the deceased had read the first draft and approved it, he may not meticulously go through the final draft before its execution. He may execute the will upon cursorily going through the will which he had seen earlier. Hence the errors of such kind which are shown are neither germane nor can raise any suspicion.

It was seen that the will was most natural. The deceased has bequeathed a single immoveable property. He had three children. He has bequeathed it to all in equal shares. Even on intestacy they would be entitled to the same share of course, as on the date of the execution of the will the defendant would have been entitled to 50% share in the estate of the deceased and his two sisters would have been together entitled to 50% share of his estate. That was prior to the amendment to Chapter III of the Indian Succession Act, (ISA) 1991. Be that as it may, upon intestacy half the property would devolve upon the son of the deceased, his residence with family therein notwithstanding. Consequently making of the will for giving equal shares does not matter. It would show the impartial intention of the deceased.

The Court had considered each of the circumstances contended to be suspicious. The conscience of the Court has to be satisfied that the will sought to be propounded is the will of the deceased. This would depend upon the facts of each case. Various facts shown by the defendants to create suspicions are mere stray contentions none of which is such as to raise suspicion of the Court. The deposit of a will in the office of the sub registrar after its preparation upon a draft by an advocate and its execution before another advocate in the same office and another witness bequeathing the estate of the testator in equal shares to his heirs would show the due execution of the will. Consequently it is seen that the will of the deceased B.M. Bhathena dated 27th November, 1985 has been duly and validly executed.

The defendant had produced, before the handwriting expert photocopies of two money order receipts of 1982, 3 years prior to the execution of the will showing the signatures of the deceased. He has also produced one cheque signed by the deceased on 21st July, 1997, 14 years prior to the execution of the will. He had also produced a driving license of the deceased dated 28th February, 1956, about 30 years prior to the execution of the will showing his signature. The signatures at such distance in time are likely to be slightly different.

The handwriting expert’s evidence would be required to be considered. (See Ajay Kumar Parmar vs. State of Rajasthan, AIR 2013 SC 633) However, it was held that the opinion of the handwriting expert is as fallible/ liable to error as that of any other witness and hence the Court can compare the signatures as required u/s. 73 of the Indian Evidence Act. Consequently in a case such as this the Court would see the opinion of the expert and apply its own observation by comparing the signatures or handwritings for providing a decisive weight or influence to its decision. There was absolutely nothing to show that any of the signatures is forged.

Section 4 of the Bombay Stamp Act, 1958 inter alia, provides that where, in case of any specific instrument, i.e. development agreement, sale, mortgage or settlement, if several instruments are employed for completing the transaction, then the principal instrument only shall be chargeable with duty prescribed in Schedule – I and each of the other instruments shall be chargeable with duty of Rs.100/- instead of the duty, if any, prescribed for it in that schedule.

Sub section (2) of section 4 of the said Act enables the parties to determine for themselves which of the instruments so employed shall for the purposes of sub section (1), be deemed to be the principal instrument. Sub section (3) of section 4 of the said Act provides that where parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument.

The proviso to section 4, which governs the entire section provides that the duty chargeable on principal instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments so employed. Thus, in order that the provisions of section 4 of the said Act are attracted, in the first place it will have to be established that several instruments were employed for completing one and the same transaction. In the context of present case therefore, it was for the petitioner to establish that the development agreement, power of attorney and the sale deed were nothing but several instruments employed for completing the transaction of the sale of the said property.

The Hon’ble Supreme Court while disposing a matter, commented upon a matter of great legal and constitutional importance.

The Hon’ble Court observed that the Bar Association of Coimbatore had passed a resolution that no member of the Coimbatore Bar could defend the accused policemen in the criminal case against them in this case. Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they could not defend a particular person or persons in a particular criminal case. Sometimes there were clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passed a resolution that they would not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

The Hon’ble Court opined that such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

The Hon’ble Court gave some historical examples in this connection. When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today :

“From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

The Hon’ble Court observed that Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked the responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi (November 1945 – May 1946).

However, disturbing news was coming now from several parts of the country where bar associations were refusing to defend certain accused persons.

The Hon’ble Court observed that professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution was, in fact, a disgrace to the legal community. The Court held that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend, no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The plaintiff and his two brothers namely, the defendant nos. 1 and 2 had equal share in the land. The dispute was about the entitlement of the plaintiff to any share in the house, which was constructed on the land in question. The plaintiff did not dispute that he had not contributed anything towards the construction of the house and the defendant nos. 1 and 2 were permitted to construct the house with their own funds. The house was constructed in the year 1977 in which the defendant nos. 1 and 2 were residing.

The learned counsel for the appellants submitted that the concept of dual ownership is recognised in India and it has been accepted by the Courts in India despite a contrary concept prevailing under the British law.

It was submitted that though, the share of the plaintiff in the land is not disputed, in view of the aforesaid position of law accepted by the Courts in India, the plaintiff is not entitled to get any share in the structure of the house constructed thereon. As against this, the learned counsel appearing for the respondent (Original Plaintiff) submits that the Hindu law does not recognise such a concept of dual ownership.

The Hon’ble Court observed that in Ramkrishna Girishchandra Dode & Others vs. Anand Govind Kelkar & Others delivered by this Court reported in (1999) 1 Bombay Case Reporter 63, it has been held as under:

“The concept of dual ownership one of the land and the other of the structure on the land has been recognised by several decisions of this Court. The consistent view taken by this Court is that where the landlord get a decree for eviction of a plot of land against a tenant the licensee or a sub-tenant inducted by the tenant on the structure put by him has no right against the landlord. If therefore the landlord is entitled to get vacant possession of the land, he is entitled to evict the occupant in the said structure erected by the tenant, in as much as the occupant of the structure has no legal right against the landlord in so far as the land is concerned. The land must be put in possession of the landlord, free from any encumbrance whatsoever.”

In view of the aforesaid position of law, it was apparent that the concept of the dual ownership, one of the land and the other in the building or structure standing thereon had been recognised and accepted by the Courts in India. The applicability of the principle would not be different even if it is a case between the real brothers and the law as has been laid down by the Courts in India would apply to the dispute between the real brothers also. Merely because, the plaintiff had share in the land beneath the building, it does not automatically follow that he would have share in the building constructed also. The plaintiff did not dispute that he has not contributed anything for construction of the house on the land in which he has a share. It is also not in dispute that he had permitted his brothers to construct building/house with their own funds. No objection was raised for such construction. Therefore, it had to be held that though the plaintiff has share in the land, he did not have any share in the structure or building erected thereon.

The plaintiff is not entitled to a partition and possession of the suit house.