Partition

Case BriefsSupreme Court

Supreme Court: The bench of Mohan M. Shantanagoudar* and Vineet Saran, JJ., addressed the instant appeal against the order of High Court of Karnataka whereby the Court had refused to engage with the matter and had ordered that the appellant may seek a remedy in accordance with law. The Bench stated,

“It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, to settle finally the question of abatement of the proceedings and prevent the inefficient proliferation of further litigation between the parties.”

Factual Background

In the instant case five properties originally belonged to the joint family of two sisters. After their death, their ten children benefited through a registered partition deed dated 09-01-1984. Through the said partition deed, Leela Sapalyathi, one of the ten children, allegedly came to hold a share of 1983 sq. mts. of land, including land to the extent of 30 cents falling under Survey No. 53/3A.

On 17-02-1976, the Urban Land (Ceiling and Regulation) Act, 1976 came into force in Karnataka. Padmanabha, one of the ten children, filed a statement under S. 6(1) of the Act on 15-06-1984 declaring that the property had been partitioned and individual share of each of the children subsequent to partition was within the ceiling limit prescribed under the Act. On 16-10-1996, the Competent Authority directed that an extent of 5,210.10 sq. mts. of land held by the declarant be treated as excess vacant land to be surrendered.

The Appellant’s case was that he had executed a sale deed on 26-03-1994 with Leela Sapalyathi whereby he purchased a portion of Survey No. 53/3A measuring 14 cents comprising an old house. He had also produced copies of the Record of Rights, Tenancy and Crops (‘RTC’) for the years 1993-1994 and 1994-1995.The Appellant stated that he was unaware of the Authority’s order and upon enquiry he came to know that the RTC was registered in the name of government. It had been contended by the appellant that the Competent Authority had not issued notice to the appellant regarding taking of possession of the suit property. That, in any case, the Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, the proceedings would abate and the Competent Authority could not take further action under the Act.

Analysis and Findings

The Bench observed that regardless of whether the declarant Padmanabha and his family members had affected partition after the Act had commenced, the concerned land would still be subject to the proceedings initiated under the Act. Section 6 of the said Act had prescribed that, “every person holding vacant land in excess of the ceiling limit at the commencement of the Act…” Thus, the determination of ‘excess land’ was to be made considering the status of the land at the time of commencement of the Act, and not at the time of filing of the declaration.

Noticing that the partition was affected after Commencement of the Act, the Division Bench’s decision was held to be corrected in holding that the partition deed dated 09-01-1984 would not affect the validity of the Competent Authority’s determination of excess land. The Bench further observed,

“Section 8 and Section 9 of the Act make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the ‘person concerned’, i.e., the person who has filed the statement under Section 6 of the Principal Act.”

Claims of all other persons interested in the vacant land was to be considered through issuing a Gazetted notification as per Section 10(1) of the Act, which had been duly issued by the Competent Authority on 27-10-1995. The Repeal Act, which came into effect from 08-07-1999 had provided under S. 4 as follows:

“Section 4: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:”

Section 3(2) of the Repeal Act, i.e., savings clause, had laid down that vacant land vested in the State Government by the Act, the possession for which had not been taken over, should be restored only once any compensation paid to the landholder had been returned. Hence, any proceeding for any excess land under the old Act was liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property.

However, neither the partition deed dated 09-01-1984, nor the sale deed dated 26-03-1994 that purportedly passed on the title to the Appellant, had been produced before the Court. Thus, there was nothing on record to establish Appellant’s purchase of, possession of, or interest in the suit property. Also, there was nothing to conclusively establish possession of the suit property either by the Competent Authority or the Appellant.

Hence, observing that the contention depend on question of fact, the Bench directed  the matter to be remitted to the Division Bench of the Karnataka High Court and further ordered to consider the case afresh while disposing of the present appeal.

[U.A. Basheer v. State of Karnataka,  2021 SCC OnLine SC 98, decided on 17-02-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Mohan M. Shantanagoudar

Op EdsOP. ED.

            On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta Sharma v. Rakesh Sharma[1], stating that the Hindu Succession (Amendment) Act, 2005[2] will have a retrospective effect. The 2005 Amendment amended Section 6 of the Act in order to align with the constitutional belief of gender equality. Under the amendment, the daughter of the coparcener shall by birth become a coparcener in her own right in the same manner as the son. Vineeta Sharma case[3] settled the matter in the question – whether the 2005 Amendment had deemed the daughter to have the same right as of a son in the coparcenary property irrespective of the father being alive before the Amendment.

            The judgment was decided by a three-Judge Bench comprising of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as the right of being a coparcener is by birth for a son and so is it for a daughter post the 2005 Amendment, and even if the father was not alive on 9-9-2005, it does not obstruct a daughter’s right from claiming her share in the coparcenary property. This judgment resulted in overruling the Supreme Court’s earlier judgments in Prakash v. Phulavati[4] and Mangammal v. T.B. Raju[5] which had held otherwise. Hereby, Vineeta Sharma[6] judgment re-affirmed equality in the treatment of sons and daughters by the law for the purposes of succession.

            One of the reasons listed by the Supreme Court in the recent judgment to put the daughter at par with the son is that coparcenary rights are formed since birth and “it is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive.”[7] The Supreme Court held that notional partition, the proviso to Section 6 of the 2005 Amendment Act[8] mentions, is merely a fiction of partition that is created in order to ascertain the share of the surviving Class I female heirs[9] or male relatives of the female heirs of the deceased coparcener. However, the purpose behind the statutory fiction is “not to bring about the real partition”.[10]

            The concept of notional partition is created to give effect to the Explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005[11]. It is a legally formed fiction where partition is assumed to happen between the deceased and his coparceners, immediately before the death of the deceased. Notional partition can be interpreted in the following two ways: (1) narrow interpretation; and (2) broad interpretation.

            In the narrow interpretation, notional partition is a partial partition. According to the unamended Section 6, intestate succession happened by notional partition only if any member from Class I heirs mentioned in the Schedule, was alive at the time of the death of the deceased. This indicates that the property divided is like a legal fiction created only to determine the share of the deceased. Whereas the other remaining part of the property continues to be a coparcenary property until an actual partition is effected. In this way, the coparceners have fluctuating undivided joint interest in the coparcenary property. Therefore, the narrow concept of notional partition does not result in the disruption of the joint Hindu Undivided Family. Accordingly, female members who inherit in joint family property under unamended Section 6 (wife, mother and grandmother), will be entitled only to the share which is notionally devolved upon her as per Explanation 1 to Section 6[12] if the actual partition does not take place.

            On the other hand, the broader interpretation of notional partition assumes that the actual partition has occurred immediately before the death of the deceased. This interpretation is followed by the Supreme Court in Gurupad Khandappa v. Hirabai Khandappa Magdum[13]. In Uttam v. Saubhag Singh[14], which was decided post 2005 Amendment, the Supreme Court placed reliance on Khandappa case.[15] Going by this interpretation, the fictional assumption should be brought to a logical end. It should be treated and accepted as a concrete reality. Once the fictional assumption is made, it is not irrevocable as the “… assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.”[16]

            As a result of following the broader interpretation of notional partition, the joint Hindu Undivided Family no longer exists, by converting the coparcenary property into separate property of the deceased’s heirs. Accordingly, female members who inherit in joint female property under amended Section 6 will be entitled to both the interest which she has inherited and the share which is notionally devolved upon her as per Explanation 1 to Section 6.[17] However, it must be noted that broader interpretation of the fiction can be used only to ascertain the shares of the deceased and cannot be carried beyond that to say that the female heirs cease to be members of the joint family.[18] Therefore, broader interpretation of the concept of notional partition is used to enlarge the scope of the shares which women are entitled to so as to be in tandem with the Statement of Objects and Reasons of the said 2005 Amendment Act.

            In Vineeta Sharma[19], the Court relied on the narrow interpretation of notional partition by holding that “The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it.”[20] This results in keeping the spirit of joint Hindu family intact.[21] This rationale is given to justify that coparcenary rights are available since birth and hence, daughters will get share in the coparcenary property irrespective of the father being alive or not.

            However, due to this reasoning, the female member (who cannot ask for partition since they are not coparceners) who inherits the joint family property will have to bear the brunt if she dies before any actual partition is initiated by the coparceners. This is because, while they will be entitled to the share devolved upon notionally as per amended Section 6, they will not receive any right in the joint family property. If the Supreme Court would have followed the broad interpretation instead, it could have yielded a similar result of vesting the daughter with the same right as of the son in the coparcenary property irrespective of father being alive. Moreover, it would have granted the daughter-in-law her share of the property without her having to depend on any coparcener to demand for an actual partition in future.

            The Supreme Court in Vineeta Sharma[22] judgment traces its way back to the past by following narrow interpretation and ensures that the joint Hindu Undivided Family stays intact.  Whereas, the 174th Report of the Law Commission of India[23] and the Consultation Paper on Reform of Family Law, 2018[24] both recommended the abolition of coparcenary and to put an end to the joint Hindu family system. The abolition of coparcenary is the only plausible solution to rectify the inherent biases of the Hindu Succession (Amendment) Act, 2005.

            While the decision in Vineeta Sharma[25] is a progressive step forward, however, it raises a lot of issues which are yet to be addressed. The judgment quoted that “Once a daughter, always a daughter … son is a son till he is married.”[26] Many have celebrated this statement, yet it has deep hues of romantic paternalism behind it. By stating so, the Court implied that a daughter can never form her own coparcenary as she will always need to hide behind the shadow of her father, grandfather, brother, husband, or son. This has led to an anomalous situation as sons can start their own coparcenary once they get married and have children.

            To say the least, the judgment does not just raise one issue, it raises a couple of them.  The issues related to gender inequality still persists. By pushing a narrative shrouded in romantic paternalism, the Court has failed to see that the married women are now double beneficiaries of these laws (same women inherit from the lineage as well as from her marriage). While at the same time it has turned a blind eye towards the men who only inherit property because of a single lineage. This further re-enforces the patriarchal structure of the society in which men are also victims at certain times.

            While this judgment surely is a welcoming step, however, it opens floodgates of various questions which are yet to be answered. It will be interesting to know how things unfold with respect to ascertaining the shares of dependent women under the abovementioned circumstances. Moreover, it pushes to shift the discourse regarding gender equality and traditional laws, as the country waits holding its breath anticipating what is to come.

* Third-year law students, Jindal Global Law School, Sonipat.

[1] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

[2] Hindu Succession (Amendment) Act, 2005

[3] Supra Note 1.

[4] (2016) 2 SCC 36

[5] (2018) 15 SCC 662

[6] Supra Note 1.

[7] Supra Note 1 at p. 73, para 75.

[8]Read as “Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before  20th day of December, 2004.”

[9] The list is mentioned in the Schedule to the Act of 1956.

[10] Supra Note 1 at p. 101, para 101.

[11]Read as “Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

[12] Ibid.

[13] (1978) 3 SCC 383

[14] (2016) 4 SCC 68

[15] Supra Note 13.

[16] Supra Note 13, para 13.

[17] Supra Note 11 .

[18]State of Maharashtra v.  Narayan Rao, (1985) 2 SCC 321,  para 9

[19] Supra Note 1.

[20]Ibid, at p. 101, para 101.

[21]As coparcenary rights are not derived from any person or event apart from being birth of the coparcener, it satisfies the concept of unobstructed heritage explained by Mulla, cited by the Supreme Court. Therefore, there is no need to take support of the narrow interpretation in order to justify the equal treatment of son and daughter. By following narrow interpretation, the Court wants to keep the concept of Hindu tradition of social togetherness unimpaired. The ulterior motive is to serve the people who are dependent on earning family members and give tax benefits incurring through it.

[22] Supra note 1.

[23] Law Commission Report, Property Rights of Women: Proposed Reforms under the Hindu Law, (Report No. 174, 2000) p. 26, para 5.7.

[24] Law Commission of India, Consultation Paper on Reform of Family Law (2018) p. 126, para 5.12.

[25] Supra Note 1.

[26] Supra Note 1,  p. 56, para 50.

Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:

transferee pendente lite have a right to be added as parties to the partition suit?

Facts

Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.

Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.

Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.

After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.

Second Appeal

Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.

Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.

Therefore the plaintiffs/respondents were forced to file title suit.

In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.

After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.

Analysis and Decision

Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.

High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.

Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.

Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.

In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR  1963 SC 786.

Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.

Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.

Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.

In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.

Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.

Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].

The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.

This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.

In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.

Court also observed that

“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”

Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.

Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J., allowed a second appeal against the order of the trial court as well as the First Appellate Court whereby the suit brought by the plaintiffs (respondents herein) for declaration of title, permanent injunction, partition and possession of the suit property was decreed.

It is pertinent to note that during the pendency of the said suit, affidavit-evidence under Order 18 Rule 4 CPC (recording of evidence) was filed by the plaintiffs. On two subsequent dates when the matter was posted, the plaintiff — Kunti Bai — was partly cross-examined. However, after that, she could not appear before the trial court though the matter was fixed for evidence from time to time. Ultimately, her opportunity to lead evidence was closed and thereafter, the suit was decreed in favour of the plaintiffs.

The question for consideration of the High Court was whether the affidavit-evidence of the Kunti Bai, which was not subjected to cross-examination, could be said to be “evidence” within the meaning of Section 3 (interpretation clause) of the Evidence Act.

The Court was of the opinion that a careful perusal of Section 3 would show that the affidavit is not included in the definition of “evidence”, and can be used only if the Court permits it for sufficient reasons. An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

In the instant case, since the defendants did not get a proper opportunity to cross-examine Kunti Bai, the court held that the affidavit filed by her under Order 18 Rule 4 remained an affidavit and did not turn into evidence. In such view of the matter, the impugned order was set aside and the matter was remanded back to the trial court to give an opportunity to the defendants to cross-examine Kunti Bai and other prosecution witnesses. [Premlal v. Kunti Bai, 2019 SCC OnLine Chh 107, decided on 11-09-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. dismissed the petition application by the petitioner.

In the present case, the petitioner filed an application seeking restoration of her rights to Lot 2 in the Preliminary Plan by way of amending the Judgment and the Interlocutory Decree entered thereon and to permit her to file a statement of claim and proceed with the case. In the original case, the plaintiff had filed a partition application before the District Court to partition a land between plaintiff and defendants. At the preliminary survey, Pinhamy, the mother of the petitioner had claimed before the surveyor that she was unaware regarding the partition, regarding which the petitioner had filed a petition contending that her mother, Pinhamy, was unaware of the partition action. However, the learned District Judge in his own handwriting had written that Pinhamy was present in Court and journal entry to that effect had disclaimed any right to the corpus is erroneous.

It was noted that a  party could not appeal in dispute what the Judge had written in his own handwriting in a case record unless he had first taken up that matter before the lower Court. Here, the petitioner was not even a party to the case and  Pinhamy did not even make such an allegation against the Judge. Relevance was placed on Chaminda v. Republic of Sri Lanka, [2009] 1 Sri LR 144, in which it was held that litigant could not make a convenient statement in court and contradict a judicial record. After trial, the Judgment had been entered and the appeal filed against the said Judgment had been dismissed by the Court in 2001. Thereafter a commission had been issued to prepare the final scheme of partition. The petitioner said that, when the surveyor came to the land for final survey, Pinhamy along with two others obstructed the surveyor to execute the commission as a part of a different land claimed by them was being surveyed, and until the surveyor showed her the Preliminary Plan and informed her of the purpose of his visit, she was unaware of the partition case; which meant that in 2003 after surveyors came she became aware of the partition case. However, the petitioner went before the Court of Appeal, 7 years after her mother became aware of the partition action. The Court noted that a person who sought restitutio integrum must act promptly.

As the petitioner did not act with the utmost promptness and was not right indirectly appealing to the Court of Appeal, the application of the petitioner was dismissed.[Bandaranayaka Liyanaarachchilage Pemawathi v. Coranelis Wickremasinghe Arachchi, 2019 SCC OnLine SL CA 4, decided on 02-05-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.

There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.

The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad,  2018 SCC OnLine Bom 2892, dated 03-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]