Application of Limitation Act to Probate Proceedings
Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.
“22. The changed definition of the words “applicant” and “application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi’s case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word “applications.”
Continue reading “Limitation for revocation of Probate is three years”
Can a suit for declaration be filed without seeking specific performance of agreement?
Right under agreement to sell
The appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.
Specific performance is proper remedy
Continue reading “Relief of declaration without specific performance if maintainable”
Principles for determination of Compensation for death:
Loss of estate, loss of consortium and funeral expenses:
The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.
Section 168 of the MV Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. Continue reading “Tort: Compensation for death”
Court fee in a suit for partition in Maharashtra.
Section 6(v) and (vii) of the Bombay Court Fees Act, 1959 is as under:
“(6) Computation of fees payable in certain suits – The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follow:
(i) to (iv) xxx xxx xxx
(v) For the possession of land, houses and gardens – In suits for the possession of land, houses and gardens —
according to the value of the subject-matter; and such value shall be deemed to be where the subject-matter is a house or garden — according to the market value of the house or garden and where the subject-matter is land and –
(a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government — a sum equal to forty times the survey assessment;
Continue reading “Court fee in a suit for possession of agricultural land converted to urban use”
Power to arrest a ship docked on ports of India:
Powers of High Courts:
In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words `damage caused by a ship’ appearing in section 443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship, at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to sections 443 and 444 of the Merchant Shipping Act, 1958 read with the appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior court. Continue reading “Admiralty Jurisdiction of High Courts in India”
Transfer of Property Act, 1882; Section 58.
Determination of Sale Deed containing condition for repurchase.
A bare reading of the original document reveals that it is styled as a sale deed. The vendor specifically recites that he had purchased the property for a sum of Rs.1500/- by sale deed dated 22.6.1948, from its original owners. That he was the exclusive owner of the property, which was not encumbered in any manner and that he had absolute title and authority singularly, to deal with the same to the exclusion of his brothers, from whom he had separated long ago. He was selling the shop for a sum of Rs.4000/- because he had purchased a motor vehicle, which he wanted to run on hire. On receipt of the consideration money he was voluntarily transferring all right, title and interest in the property to the vendee and his legal heirs for all times to come. If the property was found to be encumbered in any manner, the vendee could approach the court, for return of the sale amount, including against the immovable property of the vendor. If the amount was returned within a period of 5 years, either in installments or in lump-sum, the purchaser would execute the sale deed in his favour. Continue reading “Sale deed or Mortgage by Conditional Sale”
When the terms of the agreement had prohibited award of interest, the Arbitrator could not award interest for the pendente lite period.
Clause 13 (3) of the contract entered into between the parties read as under:
“13(3). No interest will be payable upon the earnest money and the security deposit or amounts payable to the contractor under the contract, but Government Securities deposited in terms of sub-clause(1) of this clause will be repayable with interest accrued thereon.”
It has been held thus: Continue reading “Arbitration agreement prohibiting grant of interest”
Negotiable Instruments Act, 1881
Compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 on payment of the cheque amount and in the alternative for exemption from personal appearance.
How the proceedings for an offence under Section 138 of the Act can be regulated where the accused is willing to deposit the cheque amount? Whether in such a case, the proceedings can be closed or exemption granted from personal appearance or any other order can be passed?
i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. Continue reading “Procedure for speedy justice in matters of dishonour of cheques.”
Is video conferencing is an alternative to transfer of proceedings?
Power to transfer any proceedings from one court in India to another is vested in the Supreme Court under article 19-A of the Constitution. Similar powers are conferred by Section 25 of Civil Procedure Code. In an earlier case, Supreme Court opined that video conferencing could be a good alternative instead of transfer. It observed:
One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.
Continue reading “Transfer of Matrimonial Dispute at the behest of Wife”
Unjust enrichment by withholding the amount can be compensated by award of Interest:
Effect of Interest Act
Interest can be awarded in terms of an agreement or statutory provisions. It can also be awarded by reason of usage or trade having the force of law or on equitable considerations. Interest cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefore, for which a written demand is mandatory.
Clariant International Limited and Another v. Securities and Exchange Board of India, (2004) 8 SCC 524 at 539
When there is no specific provision for grant of interest on any amount due, the court and even tribunals have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil Procedure Code. Continue reading “Payment of interest in equity in India”