Case Law

14.
Rule against perpetuity (Transfer of Property Act)

No transfer of property can operate to create an interest which is to take effect
after
the life-time of one or more persons living at the date of such transfer, and the
minority of some person who shall be in existence at the expiration of that period,
and to whom, if he attains full age, the interest created is to belong.
The rule against perpetuities forbids future interests that could potentially vest
after the established time period.
The rule is often stated as follows: No interest is good unless it must vest, if at
all, not later than twenty-one years after the death of some life in being at the
creation of the interest.
[!
"or the purposes of the rule, a life is #in being# at
conception. $lthough most discussions and analysis relating to the rule revolve
around wills and trusts, the rule applies to any future dispositions of property,
including options. %hen a part of a grant or will violates the rule, only that
portion of the grant or devise is removed. $ll other parts that do not violate the
rule are still valid. The perpetuities period under the common law rule is not a
fi&ed term of years. 'y its terms, the rule limits the period to at the latest ( years
after the death of the last identifiable individual living at the time the interest was
created )#life in being#*. This #measuring# or #validating# life need not have been
a purchaser or ta+er in the conveyance or devise. The measuring life could be the
grantor, a life tenant, a tenant for a term of years, or in the case of a contingent
remainder or e&ecutory devise to a class of unascertained individuals, the person
capable of producing members of that class.
The rule against perpetuities at common law has been amended by various
statutes. ,n -ngland, the .tatute of /ses )(012* and the .tatute of %ills )(034*
and the conse5uent rise of fle&ible future interests made the rule a significant
6udicial tool in defeating the intent of landowners to impose limitations on remote
future owners in grants and devises. 7a6or alterations to the common law rule in
the /nited 8ingdom came into effect under the 9erpetuities and $ccumulations
$ct (:23, including the application of the traditional (-year limitation period to
options.
[1!
The rule is notoriously difficult to properly apply, as pointed out by a (:2(
decision of the .upreme ;ourt of ;alifornia which held that it was not legal
malpractice for an attorney to draft a will that inadvertently violated the rule
against perpetuities.
[3!
Therefore, in the /nited .tates it has been abolished by
statute in $las+a, ,daho, New <ersey, 9ennsylvania,
[0!
8entuc+y,
[2!
and .outh
=a+ota.
[>!
The /niform .tatutory ?ule $gainst 9erpetuities validates non-vested
interests that would otherwise be void as violating the common law rule if that
interest actually vests within :4 years of its creation@
[A!
it has been enacted in :
states )$labama, $las+a, $riBona, $r+ansas, ;alifornia, ;olorado, ;onnecticut,
"lorida, Ceorgia, Dawaii, ,ndiana, 8ansas, 7assachusetts, 7innesota, 7ontana,
Nebras+a, Nevada, New <ersey, New 7e&ico, North ;arolina, North =a+ota,
Eregon, .outh ;arolina, .outh =a+ota, Tennessee, /tah, Firginia, %ashington,
%est Firginia*, the =istrict of ;olumbia, and the /... Firgin ,slands, and is
currently under consideration in New Gor+.
[:!
Ether 6urisdictions apply the #wait
and see# or #cy-prHs doctrine# that validates contingent remainders and e&ecutory
interests that would be void under the traditional rule in certain circumstances.
[>!

These doctrines have also been codified in the /nited 8ingdom by the (:23
statute.
[1!
..
/nder the rule, a future interest must vest within a certain period of time. This
period is limited to the duration of a life or lives in being )the #measuring lives#*
at the time the interest in the property is transferred, plus twenty-one years.
..
114. Rule against perpetuity.- (Indian Succession Act)
No bequest is valid whereby the vesting of the thing bequeathed
may be delayed beyond the life-time of one or more persons living
at the testators death and the minority of some person who shall
be in e!istence at the e!piration of that period" and to whom" if he
attains full age" the thing bequeathed is to belong.
Illustrations
(i) A fund is bequeathed to A for his life and after his death to # for
his life$ and after #s death to such of the sons of # as shall %rst
attain the age of &'. A and # survive the testator. (ere the son of #
who shall %rst attain the age of &' may be a son born after the
death of the testator$ such son may not attain &' until more than )*
Collected by the All India Christian Council, www.christiancouncil.in Page 38 of )&+
years have elapsed from the death of the longer liver of A and #$
and the vesting of the fund may thus be delayed beyond the
lifetime of A and # and the minority of the sons of #. ,he bequest
after #s death is void.
(ii) A fund is bequeathed to A for his life" and after his death to # for
his life" and after #s death to such of #s sons as shall %rst attain
the age of &'. # dies in the lifetime of the testator" leaving one or
more sons. In this case the sons of # are persons living at the time
of the testators decease" and the time when either of them will
attain &' necessarily falls within his own lifetime. ,he bequest is
valid.
(iii) A fund is bequeathed to A for his life" and after his death to # for
his life" with a direction that after #s death it shall be divided
amongst such of #s children as shall attain the age of )*" but that"
if no child of # shall attain that age" the fund shall go to -. (ere the
time for the division of the fund must arrive at the latest at the
e!piration of )* years from the death of #" a person living at the
testators decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the bene%t of the testators
daughters" with a direction that" if any of them marry under age"
her share of the fund shall be settled so as to devolve after her
death upon such of her children as shall attain the age of )*. Any
daughter of the testator to whom the direction applies must be
in e!istence at his decease" and any portion of the fund which may
eventually be settled as directed must vest not later than )* years
from the death of the daughters whose share it was. All these
provisions are valid.
`Court` means the civil court of original jurisdiction to decide the
question forming the subject matter of the arbitration if the same
had been the subject matter of a suit, but does not include, except
for the purpose of arbitration proceedings under Sec.21, any Small
Causes Court.
The Special Marriage Act
District Court means in any area for whcih there is a City Civil
Court that court, and in any other area the Principal Civil Court of
Original Jurisdiction.
The Hindu Minority & Guardianship Act, 1956
Sec.8(6): Court means City Civil Court or a District court or a
Court empowered under Sec.4-A of the Guardians and Wards Act.
The Hindu Adoptions and Maintenance Act
Sec.9, Explanation (ii):Court means City Civil Court or a District
Court.
The Trust Act
Principal Civil Court of Original Jurisdiction - Sections11 (para 2),
7(b), 22, 34, 36 and 46.
Which is the principal civil court having original civil jurisdiction?
In mofusil, there are District Munsif Court, Sub Court and
District court all having original civil jurisdiction. Out of the three
civil courts, viz. District Munsif Court, Sub Court and District
Court, the last mentioned court, i.e. District Court, is the principal
civil court having original civil jurisdiction.
In Madras City, the City Civil Court and the High Court have
original civil jurisdiction. Between these two courts, viz. the City
Civil Court and the High Court, the High Court is the principal
civil court having original jurisdiction.
In mofusil, there are District Munsif Court, Sub Court and
District court all having original civil jurisdiction. While the
District Munsif Court has limited pecuniary original civil
jurisdiction, the Sub Court and the District Court have unlimited
original civil jurisdiction. Out of the three civil courts, viz. District
Munsif Court, Sub Court and District Court, the last mentioned
court, i.e. District Court, is the principal civil court having original
civil jurisdiction.
In Madras City, the City Civil Court and the High Court have
original civil jurisdiction. While the City Civil Court has limited
pecuniary jurisdiction, the High Court has unlimited pecuniary
jurisdiction. Between these two courts, viz. the City Civil Court
and the High Court, the High Court is the principal civil court
having original jurisdiction.
If the City Civil Court is the Principal Civil Court of Original
Jurisdiction, there is no necessity at all, in the Special Marriage
Act, to specify `City Civil Court` also, while defning `District
Court`. While defning `District Court`, besides the Principal Civil
Court of Original Jurisdiction, the `City Civil Court` has also been
specifed. If City Civil Court is also a Principal Civil Court of
Original Jurisdiction, then, mere mention of `Principal Civil Court
of Original Jurisdiction` would sufce, to defne `District Court`.
But, here, `City Civil Court` has also been specifed. It shows that
when there is a higher forum of court having original civil
jurisdiction, than the City Civil Court, the latter court, viz. City
Civil Court, cannot be classifed as the `Principal Civil Court of
Original Jurisdiction`.
The property which devolved on a Hindu on the death of his father
intestate, after the coming into force of the Hindu Succession Act,
did not constitute HUF property, consisting of his own branch
including his sons. (1982) 138 IT 673 (MP)

The property which devolved upon heirs mentioned in Class I of
Schedule u/s.8 constituted the absolute properties and his sons
have no rights by birth in such properties.
(1986) 3 S.C.C. 567
(1983) 144 ITR 18 (AP)
(1978) 114 ITR 523 (Mad)

U/s. 8, the property of father who dies intestate devolves on
his son in his individual capacity and not as kartha of his own
family (1968)67 I.T.R. 164 (All)
AIR 1979 Mad 1 FB ?
Hindu father died, leaving his two daughters, the younger being a
minor. Elder daughter sold father`s property, including the share
of minor sister. Minor sister on attaining majority sold her share
(already sold by her sister) in lawful manner. That is sufcient to
show that minor has repudiated the transfeer made by her sister
as de facto guardian/manager. The earlier sale by minor`s sister is
void. The existence or otherwise of legal necessity is not relevant
in the case of such invalid transfer. Further, the property in the
hands of father was not a `joint family property`. This is not a case
of alienation of minor`s interest in a `joint family property`. Sec.11
of the Hindu Minority and Guardianship Act prohibits the
alienation of the minor`s interest. Sec.11 includes all types of
properties of a minor and no exception is provided in the section.
VIII (2001) SLT 111 - Supreme Court DB- Madhegowda (D) by
L.Rs. vs. Ankegowda (D) by L.Rs.
2001-L.W.I 700 S. Jagadeesan J. Madras High Court
Mohanraj vs. Vallachi Ammal and others
When property is acquired by father and it devolves on his legal
heirs after his death, so far as male heirs are concerned, it will
assume the character of joint family in the case of intestate. Sec.8
of the Hindu Minority and Guardianship Act has no application.
No permission of Court is necessary, in such a case. When once
the father acquired the property, after his death, the property
devolves on his legal heirs. So far as the male heirs are concerned,
naturally, it will assume the character of the `joint family property`
in the case of intestate. When a Hindu father died, leaving sons
as well as the female heirs, who are also entitled to inherit jointly
with the sons to the father`s property under the Hindu Succession
Act 1956, the interest of the minor daughters in the property left
by the father whether the property of the father`s separate
property or the father`s interest in the joint family property, will be
the undivided interest in the joint family property, and in respect of
those properties Sec.6 of the Hindu Minority and Guardianship Act
has no application. As such, there is no need to get the permission
of the court under Sec.8 of the H.M.G.Act.
A Hindu Coparcenary is narrower than a Hindu Undivided Family.
A Hindu joint family consists of all persons lineally descended from
a common ancestor and includes their wife and unmarried
daughter. A Hindu Coparcenary is much narrower body than the
joint family. It includes only those persons who acquire by birth an
interest in the joint or coparcenary property, these being sons,
grandsons and great-grandsons of the holder of joint property for
the time being. Therefore there may be a joint Hindu family
consisting of a single male member and widows of a deceased
coparceners. A.I.R. 1966 S.C. 1523
Succession to coparcenary property:
So far as a Mitakshara co-parcenary property is concerned, when a
person having an intereset in the said property dies, his interest in
the property shall devolve by survivorship, on the surviving
members of the co-parcenery, and not in accordance with the
Hindu Succession Act--Sec.6(1) of the Hindu Succession Act. But
this position difers, when a person dies, leaving behind him, his
daughter. In such a case, his interest in the co-parcenary property
devolves, only under Sec.8 of the Hindu Succession Act, and not by
survivorship--Proviso to Sec.6(1) of the Hindu Succession Act.
Here in the case on hand, the vendor`s father had daughters and
he died only after the commencement of the Hindu Succession Act.
So his intereset in the co-parcenary property devolved, only under
Sec.8of the Hindu Succession Act, on his sons and daughters, and
accordingly, his sons (including the vendor) took the property and
partitioned amongst themselves.
When a property devolves under Sec.8 of the Hindu Succession
Act, it devolves, only on Class-I heirs, viz. sons and daughters, and
not on a son`s son. Grand-sons and grand-daughters are not
included in Class-I heirs. When a property devolves under Sec.8
of the Hindu Succession Act, on a Class-I heir, viz. son or
daughter, it becomes the personal and absolute property of the
said Class-I heir.
(1986) 3 Supreme Court Cases 567 (Commissioner of Wealth Tax,
Kanpur and others vs. Chander Sen and others)
Under the Hindu Law, the moment a son is born, he gets a share
in the father`s property and becomes part of the coparcenary. His
right accrues to him not on the death of of the father or
inheritance from the father but with the very fact of his birth.
Normally, therefore, the father gets a property from whatever
source, from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and
it will become part of the joint family of his son and grandson and
other members who form joint Hindu family with him. But this
position has since been afected by Sec.8 of the Hindu Succession
Act. Since the Preamble to the Act reiterates that theAct is to
àmend` and codify the law and Section 4 thereof makes it clear
that one should look to the Act in case of doubt, and not to the
pre-exisiting Hindu Law, the express words of Section 8 of the
Hindu Succession Act would prevail over the aforesaid general law.
When therefore, son inherits the property in the situation
contemplated by Section 8 of the Hindu Succession Act, he does
not take it as karta of his own undivided family, but takes it in his
inidividual capacity. The Scheudle to the Hindu Succession Act
referred to in Section 8(a) indicates heirs in Class I and only
includes sons and does not include son`s son but does include son
of a pre-deceased son.
Though the original character of the property was `co-parcenery`,
when the same devolves under the Proviso to Sec.6(1) of the Hindu
Succession Act, the said character changes, and it becomes the
absolute and personal property, of the person on whom it devolves.
Here, when the property devolved from the Vendor`s father to the
Vendor, it was under the Proviso to Sec.6(1) of the Hindu
Succession Act, since theVendor`s father had daughters also, and
as such, the property which fell to theshare of theVendor became
the personal and absolute property of the Vendor.
By operation of the Proviso to Sec.6(1) of the Hindu Succession Act
as above, the old co-parcenary system under the Hindu Law is
disappearing gradually. See the commentary by T.P.
Gopalakrishnan on Succession Laws of India 1970 Edition page 35
Yet another change made by the Hindu Succession Act is the
consequent efect on the Mitakshara joint family. While the Act
has professedly left it unafected, the result of the power conferred
by the Hindu Succession Act upon a coparcener to dispose of his
interest in the coparcenery property, intervivos or by will, and the
provisions for succession to the property of a male coparcener
dying leaivng female heirs of Class I under the Act, is to bring
about the gradual extinction of the Mitakshara joint family system,
in due course of time.
Further, the old system of Hindu Law shall cease to have efect,
wherever provision is made in the Hindu Succession Act -- Sec.4
of the Hindu Succession Act. Over riding efect.
Therefore, when the Vendor got the property, it was his personal
and absolute property and he was having every right, to deal with
the same, with powers of alienation.
Or.22, R.10A CPC. Appeal - Death of 1st respondent in an appeal
pending before High Court - Memo fled by counsel for respondents
3 and 4 bringing the fact to the notice of court - Failure of
appellants to take steps - Held as Respondents 2 to 4 would not
represent the entire estate of deceased 1st respondent, appeal is
liable to be dismissed as abated as against 1st respondent. If
appeal is proceeded as against the other respondents it would
result in conficting decree and hence entire appeal has to be
dismissed
2002-2 L.W.745 N.V. Balasubramanian J. Madras High Court
Societies registered under the Societies Registration Act 1860 are
not corporations aggregate and cannot therefore sue or be sued in
their names but may sue or be sued in the name of the President,
Chairman, Principal Secretaries or Trustees as may be determined
by the rules of society (see Sec.6). The title of the suit should
should be somewhat as follows: AB, President of the Arya Sabha,
UP, a Society registered under the Societies Registration Act, 1860.
AIR 1962 SC 458
Co-operative Societies registered with the Registrar of Co-operative
Societies of the State can sue and be sued in their own names.
2000 TLNJ 65 Advocate reporting no instructions. Court should
issue notice to the concerned party.
Inchoate pronote - Execution admitted - Consideration not flled up
- Deft. has given prima facie authority to holder to complete it -
2002-1 L.W. 541
9 Mysore Law Journal 476 Mundappa vs. Veerabadriah
Pronote - Signature can be made at any part of the document.
No cancellation of instrument is necessary and no C.F. to be paid
when plaintif is not a party to instrument ILR 1940 Mad.73
1988-2 L.W. 161 Srinivasan J. Market value of immovable property
capitalisation method 1971-I M.L.J. 214 Promissory note payable
otherwise than on demand cananot be validated by paying defcit
stamp duty.

M.L.J. 1980-I 248 Ratnam J. In a suit under Or.37 CPC., unless
leave is granted, the defendant is not entitled to fle any
application for any other relief.
91 Law Weekly Part 31 page 117 (1978)
Suit on behalf of an unregistered society by its President or
Secretary not maintainable.
The money was not advanced by him (President) from his pocket.
The Committee is a mere association of some gentlemen for a
special purpose. The money belonged to all the members of the
Committee and not to the President. He is not therefore entitled to
the money exclusively. He has not been givena power of attorney
by the other members to institute the suit on their behalf also.
Therefore the suit by the President of an unregistered society is
not maintainable without power of attorney given by all the
members of the Committee.
There is no document to show that the plaintif was the duly
constituted agent of the creditors. None of the persons who are
alleged to have given the authorisation letters has been examined
to prove the same. Under such circumstances, all the fnanciers
could not have authorised the plaintif to act as their agent and
get the mortgage by deposit of title deeds in his favour.
2000 (I) CTC 73
Delivery of documents of title deeds by the 1st defendant to the
plaintif who is neither a creditor nor an agent of the creditors
would not in any way create a mortgae even though there may be a
memorandum by deposit of title deeds as found in Ex.P.1.Hence
the mortgage deed is not valid and enforceable in law.
Proprietory concern is not a legal and jurisdictional entity and
complaint against proprietory concern is not maintainable
2001 (2) TNLJ 302; (1992) L.W. Crl. 347; (1996) Crl.L.J. 3099;
(1999) L.W.Crl.405); (1999) L.W.Crl.395)
Form No.32 issued by the Registrar of Companies is a public
document
2001 (2) TNLJ 290
Undivided shares of diferent owners - Sold - Total consideration to
be taken for consideration - pre emptive purhcase
(2001) 166 CTR Reports (Supreme Court FB)
Date of payment is date of cheque and is not the date of handing
over cheque for the purpose of limitation - Sec.19 of the Limitation
Act - AIR 1967 SC 1118
Acknowledgment of payment - in writing - AIR 1957 SC 477
Immovable property - Deed - Attestation does not amount to
acceptance of contents - Further proof necessary
2003(1) T.L.N.J. 173 DB

Limitation - Date of order - Date on which the order is actually
communicated to the person afected by the order AIR 1961 SC
1500 DB
Limitation - S. 138 N.I. Act In case of return of notice, the date of
endorsement by the postman or messenger - 1995(2) MWN (Cr)
page 231 B. Kannan vs. Kothandan
When a person has signed and delivered to another a paper
stamped in accordance with law, the holder of the inchoate
stamped instrument is entitled to fll up blank and negotiate.
Holder has authority to make or complete the instrument as a
negotiable one. He is authorised to fll up even the contents.
Burden shifts on the defendant to prove that subsequently the
contents were flled up, and that he has not borrowed money .
2002-3 L.W. 692 K.Gnanaprakasam J. Samikannu Naicker vs.
Sigamani
Second Appeal - on date of hearing applicant and counsel were
absent - High Court disposal of the Second Appeal on merits -
unwarranted - Not proper - Ought to have dismissed the appeal for
non-prosecution - Or.41, R.11 (1) & (2) CPC
2002 (1) TLNJ (SC) 31
AIR 1953 Madras 767 = 1953-I M.L.J. 825 In Summary Suit,
under Order 37, City Civil Court to which Order 37 applies has
no power to condone the delay in fling and obtaining leave to
defend suits fled under Rule 3 of Order 37 CPC. When a period
of limitation has been afxed for the purpose of doing an act or
taking a proceeding under the statute of Limitation Act or under
any other enactment, Courts do not possess the power to extend
the time unless and until such a power is specifcally conferred on
them.
Vested remainder in immovable property is present interest in
property and can be sold --AIR 1947 Bom. 185
--AIR 1937 Pat. 163

There is no doctrine of law in India which prevents a benefciary
with his interest by way of mortgage. though it is true enough
that in India, such an interest is not technically regarded as an
equitable estate.
--ILR (1940)2 Cal. 436 (PC)
--AIR 1940 RC 134
--45 CWN 253

Summary suit-only copy of plaint and annexure thereto has to be
furnished to defendants-furnishing of copies of documents which
are basis of suit, not necessary-not furnishing of same-defendant
would not be entitled to leave to defend on this ground --Punjab &
Sind Bank vs. Seth Roller Flour Mills
A.I.R. 1988 Delhi 308

1988-1 Law Weekly 574 Lucky Electrical Stores vs. Ramesh
Steel House (Mr. M.N. Chandurkar, C.J.)
Under Clause (b) of R.1(2), a summary suit can be fled to recover
a liquidated demand payable in money. A written contract or a
contract in writing need not always be a contract signed by both
parties. Sec.44 of the Court Fees Act. Payment of court fee for
future mesne profts. AIR 1967 S.C.155 Gopalakrishna Pillai &
others vs. Meenakshi Aval and others - With regard to future
mesne profts, the plaintif has no cause of action on the date of
institution of the suit and it is not possible for him to plead this
cause of action or to value it, or to pay court fees thereon at the
time of institution of the suit. More over, he can obtain relief in
respect of future cause of action, Only in a suit in which provisions
of Or.20, R.12 CPC. apply. But in a suit to which the provisions
of Or.20, R.12 CPC. apply, the court has discretionary power to
pass a decree directing enquiry into future profts and the court
may grant a general relief though it is not specifcally asked for
in the plaint.
As held in Ramcharan Singh vs. Dharohar Kuer A.I.R. 1954
Patna 175, obtaining of probate of a Will is only a rule of evidence
and since the appellate is taking steps to obtain probate of the
will, and the will has not so far been probated, the same could not
be produced in court. The learned Trial Judge has failed to note
that as held in the said judgment of Patna High Court, followed
by the decision of the Judicial Committee in Venkata Subbamma
vs. Ramayya (A.I.R.1932 P.C. 92), under Sec.211 of the Indian
Succession Act, the property of the Testator herein has already
vested in the appellant as Executor of the Will and he need not -
and should not - wait until the grant of probate, to institute or
continue the proceedings relating to the estate of the Testator.
Further, as pointed out in the above referred judgment, grant of
probate does not create the representative character of the
Executor and such a character is created by the statute, viz. under
Sec.211 of the Indian Succession Act. Therefore, the trial court
ought not to have, in any way, dismissed the application fled by
the appellant herein, for non-production of either the unprobated
will or the probated copy of the will, inasmuch as the plaintif is
taking steps to obtain probate of the will.

The one substantial diference between the Probate and
Administration Act of 1871 and the Indian Succession Act of
1925 is that under the former Act, the taking out of probate was
not compulsory.

This diference does not exist between the Indian Succession
Act of 1865 and that of 1925.

Division Bench of our High Court, comprising of Their Lordships
K.A.Swami C.J. and AR. Lakshmanan J., rendered in S.P.
Padmavathi vs. State of Tamilnadu (1997-2 L.W. 579) - Held that in
respect of a sale deed executed pursuant to a decree for specifc
performance, the stamp duty and registration charges have to be
collected, as mentioned in the agreement for sale. 1999 T.L.N.J.
page 73 K. Sampath J.
S.50 CPC. Decree obtained against some of legal heirs - Others not
made parties - Sufcient representations - Binds all - Only
procedural 1999 T.L.N.J. page 88 S.S.Subramani J.
Wrong provision of law given - Duty of court to mould chief The
Code consolidates and amends the law relating to the procedure
of the civil courts. The object of the consolidation is to bring
together and make up-to-date the statutory law relating to any
particular subject, so that it may serve as a useful Code
applicable to the circumstances existing at the time when the
consolidating Act is passed: ILR 22 Cal 788

This Code is intended mainly to regular procedure in civil courts,
it is not ordinarily intended to create new rights or take away
existing ones. AIR 1932 Lah. 401
This Code deals with procedural matters , that is, with matters
relating to the machinery for the enforcement of substantive
rights as contra-distinguished from the substantive rights
themselves. For substantive rights, one should look to statute
law or general principles of law. AIR 1964 Raj. 140

Document fxing a term of 3 years, and either party given liberty
to terminate the lease by giving three months` notice. Held: it
amounts to tenancy-at-will and it cannot be said to be lease for
three years requiring registration. It is admissible though not
registered.
2000-I L.W. 494 -- Sengappan vs. Anumbatha Veda Vinayagar
Temple, by Hereditary Trustee.
Division Bench of our High Court, comprising of Their Lordships
K.A.Swami C.J. and AR. Lakshmanan J., rendered in S.P.
Padmavathi vs. State of Tamilnadu (1997-2 L.W. 579) - Held that in
respect of a sale deed executed pursuant to a decree for specifc
performance, the stamp duty and registration charges have to be
collected, as mentioned in the agreement for sale.

AIR 1961 Madras 388 (A.K.S. Muhammed Sultan Rowther and C
vs. Manickam Chettiar), wherein it has been held @8 that the
payments made from time to time should be appropriated in the
order of time of deliveries AIR 1982 Calcutta 386 (M/s. West
Bengal Decorating C vs. M/s. Damodar Das Daga), and
contended that a suit for value of goods sold and delivered does
not come within the ambit of Order 37 CPC.

Small Cause Court Advocate Fee Rules
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10001-20000 - 3%
20001-50000 - 2%
500001-100000 - 1%
100001 - 1/2%
Revision under Art.227 of Constitution of India - by a person not
party to suit maintainable - decree obtained by agent against
principal held collusive - set aside - decree obtained by
suppressing materials and without indulging necessary parties
1998-I L.W. 372

Sarkar's Law of Evidence Tenth Edition page 645-- 1991-1 L.W.
256
Defendant dead after judgment by trial court. Appeal can be
fled straightway by L.Rs. of deceased defednant.
See also M.L.J. Reports (Supreme Court) page 27
C.A.N606/78 Shiv Dass and others vs. Smt. Devki and others
Respondent died after conclusion of aruguments and before
judgment.
Statutory tenant = Holding over tenant
AIR 1972 SC 2526
AIR 1965 SC 414
Licence - property remains in legal possession of owner AIR 1965
SC 610 = (1964) 6 SCR 642

Sale Deed to be declared as null and void CF payable under
Sec.40(1) of C.F.Act
AIR 1956 Mad.176

1943 I M.L.J. 316
1954 (2) MLJ 400
AIR 1954 Mad.1126

1944 I M.L.J if cancellation asked for, C.F. to be paid.

192(1) of Companies Act Registration of resolution by C
(Agreement) 192(4) , 124,
124, 130 Charge Registration Future damages for use and
occupation/mesne profts (future) -- no cause of action yet court
can grant decree under Or.20, R.12(1)(c) r/w. Or.20 R.12 in
fnal decree (discretionary) AIR 1967 SC 155

Future damages for use and occupation only for three years
Or.20, R.12(1)(c)(iii) CPC.
I - L.W. 443
AIR 1977 CRL. 319 AIR 1963 SC 1405

Advocate suppression facts fraudulently and obtaining orders -
Though tendering apology should not go unpunished - 1987
Crl.L.J. 1038

No precedent is not bar for contempt AIR 1972 SC 2466

Power of Attorney in favour of complainant fling at the time of
institution of complaint Sec.138 NI Act - must 1994 I L.W. Crl.
337

1988-2 L.W. 161 Srinivasan J. Market value of immovable property
capitalisation method 1971-I M.L.J. 214 Promissory note payable
otherwise than on demand cananot be validated by paying defcit
stamp duty.

If an application for copy of decree is made after the expiry of the
limitation period for fling appeal the period taken by the court for
issuing copy should not be excluded under the provision of Sec.
12 of the Limitation Act 1993 TLNJ 280 Srinivasan J.

1961-I M.L.J. 288 Limitation in respect of value of goods sold
starts, only from the date of delivery and not from the date of any
part payment.

If a receipt contains additional words importing a promise to
pay the money, then the doct. would not be chargeable as receipt
but as a pronote or agreement.
3 Bom. L.R. 89
36 Mad. 370

One single person carrying on business in the name of a frm
cannot sue in the name of the frm 1959 J & K 118
AIR V 46 C 47

Where a suit against a person carrying on business in a name
other than his own, in the style of a frm was instituted and
decreed. Held: the deft. could not impugn the decree as a
nullity. The executing court could substitute the defendant`s
name for the name and style of his business.
AIR 1981 Orissa 141

Decree against frm is decree against all partners 1958 All 176

AIR 1985 Mad. I David Annusamy
Jurisdiction maintainable even if immovable property situate
outside the jurisdiction - Mortgage.

Sec.92 CPC Petition pending - Or.39 R.1 CPC. can be ordered
1993-2 L.W. 308 DB
Or.9, R.9 CPC will come into play, only when there is default in
the appearance of the plaintif or the applln. and now when
there is default in the payment of the amount directed to be paid,
as a condition for resotration. 1993-2 L.W. 321 Abdul Hadi

Where a suit was based on a cheque issued by plaintif and
encashed and utilised by defendant - held: it was a suit for
recovery of a loan and not a suit on cheque
AIR 1982 Delhi 590

Recovery of rent on the basis of lease deed - triable under Or.37
AIR 1983 Kar. 1

Where a memorandum of appeal, returned for rectifcation of
certain defects, is rectifed after delay.
Held: condonation of such delay will be governed by Sec. 151
and not by Sec.148 CPC. or S.5 of the Limitation Act. ILR (1979) I
Mad. 55
91 Mad. L.W. 530

Where a suit was stayed sine die and one of the parties died. Held,
the appln. for substitution of L.Rs. made on the revival of the suit
would be allowed, as no suit would be said to have been pending
during the stay.
AIR 1984 Del. 138
64 Punj. LR. 454
When an agent suing on behalf of an undisclosed principal dies,
pending suit, the suit after death of the agent, should be
continued, if it can be continued at all by the agent`s
representative and not by the principal.
17 MLJ 116

If a plaintif sues and dies after his suit has been dismissed, his
L.R. may appeal from the decree without an application to be
brought on record in his place.
40 PLR 767

The bringing on record of a L.R. of a deceased plaintif must be
entitled to the purpose of carrying on the suit and cannot have
the efect of conferring any right to heirship to a property.
AIR 1976 H.P. 174

ILR 41 Mad 442
42 IC 86
17 IC 101
L.R. not claimant heir Succession Certifcate is necessary to fle
E.p. and not to continue E.P.
AIR 1988 AP 314

Sarkar`s Law on CPC 1992 8th Editiion page 935 Vol.I
1987 H.P. para 5 Succession Certifcate not necessary Decree in
favour of deceased plaintif - nullity - subsequently cannot be
validated by amendment - suit must be treated as pending.
AIR 1958 Cal. 691
AIR 1962 All 541

Legal rep. of a deceased deft. can seek to set aside an exparte
decree against the deft. by reason of Sec.146 CPC.
(1970) I An.W.R. 240
AIR 1954 Mys. 32
1981 All L.J. 666

Appeal AIR 1958 SC 394

Real owner can fle appeal AIR 1940 Mad. 6 To enable a person to
take a proceeding under Sec.146 CPC. as a person claiming
under a party to a litigation, it is not necessary he should have
been brought on record as such.
AIR 1947 Mad. 34 DB

Or. 22 does not apply to the case of death of plaintif after decree
and of his L.R. wishing to appeal ILR Mad 236

Where deft. is dead at the time of institution of suit, the plaintif
cannot proceed with the suit by substituting heirs - suit nullity.
ILR 31 Mad. 86
AIR 1958 Cal. 681
AIR 1964 Mys. 293
AIR 1971 Goa 54

A mere doubt about the eligibility of the petr. to receive
compensation in the absence of an other contending party laying
claim to the whole or part of compensation will not constitute a
dispute under Sec.30 of L.A. Act. The collector has no
jurisdiction to transfer the matter to the Judge AIR 1977 Gau. 47

Tenant`s right under Sec.9 cannot be taken away by the dismissal
of the ejecment suit. The court should dispose of the petition
u/s.9 quite apart, from the manner in which the ejectment suits
have been terminated.
AIR (37) 1950 Mad. 759

Sec.9 petition will lie, only in a suit in ejectment, and not in a
RCOP for eviction 1993 TLNJ 322
The term `description` includes, age, father`s name, caste, etc.
7 MLJ 81

Plaint defective - Opportunity to be given to cure defect - failute
- dismissal Or.7, R.3 CPC. or rejection
AIR 1931 Mad. 175
AIR 1935 Mad 389 DB

Where a plaint was returned for amendment and was amended
without notice to the other side and the amendments were all
important, the order was set aside and case was remanded for
trial on original plaint.
1939 A.M.L.J. 112(1)
CPC. by S. Venkataraman N6 R17 page 549 Amendment of plaint
can be allowed before admitting the plaint under 7, R.9 before
returning the plaint under 7, R.10 CPC. or before rejecting the
plaint under Or.7, R.11
AIR 1963 Manipur 43
AIR 1971 Delhi 282
Amendment - fresh suit limitation A contract of guarantee
contained in a petition to court was held chargeable with stamp
duty as an agreement in addition to court fee paid as for the petn.
AIR 1926 Cal. 877

Agreement in a letter - need not be stamped 13 Mad 255 - contrary
view Should be stamped 17 Cal. 548
Distinction between annexures and the suit documents is clear as
laid down in 1968 SC 1709

A contract of indemnity contained in an instrument which is
implied by law or is ancillary to the main purpose is not
separately chargeable with duty as an indemnity bond. A
covenant relating to a warranty of title included in a conveyance
is not chargeable separately as an indemnity bond
AIR 1977 Mad. 44

There can be validation, only of the original, when it is unstamped
or insufciently stamped. It is well settled tht a copy of an
instrument cannot be validated AIR 1962 SC 110

Original insufciently stamped and not admissible in evidence.
Its certifed copy also is not admissible in evidence.
AIR 1955 Cal.56
AIR 1951 Pepsu 24
AIR 1962 SC 110 (original lost)

A pronote which is also a bond being attested by a witness and
not expressed to be payable to order or bearer, is liable to duty as
for a bond and is admissible in evidence on payment of duty and
penalty as for a bond.
before amendment of Act
AIR 1945 142
The document started with the words òn demand I promise to
pay` but subsequently said that the principal sum with interest
would be paid within three years. This inconsistency was taken
as showing that it was not intended to be used as a negotiable
instrument and it was allowed to be validated on payment of
penalty.
AIR 1941 Nag. 1

A bill or pronote need not be attested. If it is attested by a
witness and is not payable to order, it will fall under the
defnition of a bond as given in the Indian Stamp Act, and will
therefore be chargable with duty as a bond.
ILR 8 Mad.87 FB

Also see 1944-II MLJ 180

Where on a pronote by prl. debtor, the surety had written
`repayment guaranteed by me` The court held that it was a
contract of guarantee (1917) 44 Cal. 978
39 IC 705
21 CWN 482
A recital that the title deeds have been deposited as collateral
security would not afect the character of the instrument as a
pronote. In this case, the instrument though a pronote may also
be chargeable under
Art.6
3 MLJ 225
(1835) A & E 386
Stamp Act page 95

Under Sec.40 CF Act. Value as on date of plaint
(1976) I M.L.J. 9

As mentioned in the document 1939 (1) M.L.J. 702
Page 172 C.F. Act

Declaration of an order demanding payment of tax, etc. - suit to be
valued - not advolerum C.F. 25(d) 1990 TLNJ 107
99 Law Weekly 740

Equitable mortgage - Memorandum evidencing deposit of title
deeds - It is merely evidence of past transaction and not disclosure
of sole bargain in praesenti - hence regn. not required
AIR 1977 Mad. 238

In order to require registration of a mortgage by deposit of title
deeds, the document must contain all the essentials of the
transaction and one essential is that the title deeds must be
deposited by virtue of the instrument or acknowledge an earlier
deposit of title deeds and say further that the title deeds shall
be held as a security on the said mortgage.
AIR 1970 SC 659

Order of attachment before judgment would not become
inefective after passing of decree permitting JD to pay decretal
amount in instalments. That order which was independent order
would survive unless set aside in a manner known to law.
Or.38, R.5 -- AIR 1977 Mad. 339

Pronote - payment in instalments - payable otherwise than on
demand - insufciently stamped - inadmissible AIR 1977 Mad.
340

1) Mutual, open and current account - balances should have
tilted from one side to another - at least at one point of time 2)
Payment AIR 1977 Mad. 56

No contract between parties regarding payment of interest -
plaintif is entitled to claim interest at 6% p.a. under Sec.1 of
Interest Act 32/1839 AIR 1977 Mad 56

See Sec.80 of the Negotiable Instruments Act.

An Arbitrator can just fle the award in the court, without any
appln. but the act of fling must be his or on his behalf AIR 1953
SC 313 = 1953(1) MLJ 841

AIR 1979 Mad. 1 FB

Notice to all parties in I.As. Rule 32 CRP Or.9, R.9(2) CPC
1980 - I M.L.J. 278
1992 - 2 L.W. Part 13 page 467
U/s. 35 of the Stamp Act, an unstamped document cannot be
admitted in evidence for a collateral purpose.
Section enacts that it shall not be admitted in evidence `for any
purpose` 1946-I M.L.J. 295 (PC)

1953 All.L.J. 312 = AIR 1953 AlL. 350
Proviso to Sec.35 of the Stamp Act makes unstamped receipt
admissible not generally but as against the person by whose
fault it is unstamped, on payment of the penalty of one rupee
(page 291) Stamp Act AWN 1902 72 FB If a document is
insufciently stamped, the date stamp should not be applied to
the stamps on it, nor should the stamps be cancelled by
punching out the fgure head. The doct. should be returned
to the party concerned for resubmission properly stamped.
--Rules under the Court Fees Act Part II Chapter I
Civil Rules of Practice and Circular Orders Vol.I, page 222

1984 AIR Mad 75 = 1984 MLJ 148 ABJ conditional attachment -
valid Partition
1928 C. 705
Deed merely recording a family arrangement and containing an
ack. of the receipt of a share of property need not be stamped and
registered
Where a person executes a Power of Attorney in favour of a lawyer,
it is not that he cannot appear in person before a court of law. -
1954 Assam 23 (25) - Union of India vs. The Bank of the East Ltd.
& others
AIR V 41 C5
ILR (1953) 5 Assam 115 DB

Appointment of a `sole agent` does not preclude the principal
from acting himself in the business of the agency without being
accountable to the agent. Only an express prohibition would have
that efect.
--Contract Act Pollack & Mulla on Contract Act and
Specifc Relief Acts X Edition 1986 page 844
(1931) I KB 253
(1934) 2 KB 436
(1941) AC 108
(1953) CPL 652 CA

Whenever a court passes an order directing the preservation of
`status quo` it should by the same order state in unequivocal
terms what the `status quo` is, otherwise, the court will be failing
to to its duty.
--Srinivasan J. 1988-2 L.W. Part 13 342

Sec.19(b) of Hindu Succession Act
Tenancy in common -
This interest is created where two or more persons have individual
possession but distinct interest estates in any subject of property,
in equal or unequal shares and either by the same or by diferent
titles. On the death of a tenant-in-common, his share goes to
his representative.

Joint tenancy - (co-parcener)
An estate held by two or more, jointly with an equal right in all,
to share in the enjoyment of the land during their lives. On the
death of one, his right accrues to others by survivorship. In this
tenancy, there are four units, viz. of possession, interest, title
and time.
In a per stirpes distribution, a group represents a deceased
ancestor. The group takes the proportional share to which the
deceased ancestor would have been entitled if still living.
For example, a man died intestate; his wife predeceased him. He
had four children, three of whom are still living at the time of his
death. The deceased child had three children, all still living. These
three grandchildren will share equally in one-fourth of their
grandfather's estate, the share the deceased parent would have
taken if still alive. The three living children will also each receive
one-fourth of the estate.
Per stirpes difers from per capita, in which an equal share is given
to each of a number of persons who all stand in equal degree of
relationship to the deceased.
In a per capita distribution, an equal share of an estate is given to
each heir, all of whom stand in equal degree of relationship from a
decedent. For example, a woman died intestate, that is, without a
will. Her husband and three children predeceased her, and her
only living heirs are her ten grandchildren. These grandchildren
will take per capita. In other words, each grandchild will receive
one-tenth of the estate.
Per capita difers from per stirpes, where persons do not inherit in
their individual capacity but take as part of a group represented by
a deceased ancestor closer in line to the decedent.
Power of Trustee to sell
Unless trustees are given express power to sell, mortgage,
exchange, or partition, by the instrument of trust or by some
statutory provision or by orders of court, it would not be
competent for them to do so The normal duty of the trustee is to
preserve the property in specie and not to convert it. The general
authority of a trustee would not therefore include a right to sell
the trust property which must be decided from the investment of
trust or from directions of a court.
ILR 1952 Bom. 266
AIR 1952 Bom 106
53 BLR 883
u/s. 34 Petition to be fled for sale of trust property ILR
(1954) Mad 537 DB

Where the trust estate consisted of house properties was under a
set back due to need for urgent repairs at heavy costs, so that it
would be more prudent to sell them than to rehabilitate them, it
was held that in the absence of a power of sale express or
implied conferred by the instrument of trust, the trustee must
invoke the extra ordinary jurisdiction of the court to sanction a
sale.
43 Bom 519
Bom LR 41
49 IC 882

Sec.36 of the Trusts Act Sec.34

Page 251, 259 N. Suryanarayana Iyer`s Indian Trusts Act
1882 IV Edition 1992

Sec.34 of the Trusts Act provides better forum a court, superior to
the court of sub judge Where a trustee enters into an agreement
for sale of trust property there being nothing in the trust deed
expressly authorising him to do so, dispute regarding his right to
do so has to be referred to Court under Sec.34 of Trusts Act and
not to court u/s.90 CPC.
AIR 1982 Cal. 14 DB

Principal Civil Court of Original Jurisidction superior to sub
court Decree obtained on behalf of an idol - subsequent
creation of trust is a private transaction afecting idol - Decree
can be executed either by the original Decree Holder or by the
President and the Trustee acting together under the Trust Deed
after taking steps under Or.21, R.16 AIR 1978 All. (1)
AIR 1935 All. 1001

AIR 1954 Patna 175
-Bequeath under Will vests with Executor, immediately on the
death of Testator. Executor need not wait till obtaining probate -
which is must See AIR 1959 rAJ 243 (Jaipur Succession Act)
1955-II M.L.J. Reports 27
Supreme Court - Respondent dies after arguments and before
delivering judgment in the appeal. L.R. need not be brought on
record, in that appeal. It is enough that L.Rs. of the deceased are
impleaded eo nominee, in the further appeal proceedings, to
represent the estate of the deeased. The date when the plaintif
gets the knowledge of the defendantis not relevant under Art.177
(now Art. 120 r/w Or.22, R. 4 CPC.)
AIR 1964 SC 215

Under Or.22, R.4(3) CPC abatement of suit as against defendant
is automatic and no separate order is necessary for declaring AIR
1976 Goa 11

Or.22, R.3 applicable for bringing on record L.Rs. of deceased
applicant
AIR 1979 Cal. 182
AIR 1980 SC 64
AIR 1978 Del. 129

Sec.44 of C.F. Act Claim of future mesne profts/damages
is based on future cause of action In view of Or.20, R.12 CPC.
the said relief can be claimed in the present suit but need not be
valued and court fee paid now. AIR 1967 SC 155

Vakalath and appearance are fled for a particular court. It is
for a suit or proceeding in that court, the advocate is authorised
and obliges himself to appear If a matter was to be transferred
from one court to a totally distinct court, it appears that the
authority given to advocate would come to an end.

AIR 1977 Bom. 36

Transfer of a suit would not involve the collection of extra court
fee leviable in the transferee court or refund of excess court fee,
according to the scale prescribed for the transferee court. AIR
1955 Cal. 258

1991-I L.W. 256
After disposal of suit and before fling of appeal, if defendant dies,
when appeal is sought to be fled, cause title to be amended.

One of the liquidators acting on behalf of a registered company
died. The plaintif was still alive. The application for adding the
name of the successor liquidator in the title of the suit was a
technical one, meant merely to keep the record of the suit straight
and such application was not governed by the law of limitation,
since there was no abatement.
AIR 1971 All. 407

A bonafde application to bring the L.Rs. (though wrong persons) of
a deceased defendant on record is an application made to the court
within the meaning of Or.22, R.4, as not to cause the suit to
abate.
20 MLJ. 398

a few L.Rs. AIR 1973 Pat 399

Or.22 applies to pending appeals AIR 1980 SC 64

The value of the subject matter contemplated u/s 15 of the City
Civil Court Act cannot possibly take in the value of the counter
claim. Plaintif`s value determines jurisdiction
1975-I MLJ 6 = 88 L.W. 547

Suit can be decreed based on the evidence adduced by the
defendant
AIR 1965 All. 223
AIR 1951 SC 177

Judicial Ofcers should not be made parties in the writ
proceedings questioning the judgments/orders 1999-3 L.W. 277
Supreme Court
Counsel reporting no instructions - Duty of court and duty of
counsel - Notice should be given to the party concerned
2000 TLNJ 65

Statutory suit - other suit 1999 T.L.N.J. 110

Or.2, R.3 CPC.
There is no provision in the Code enabling the plaintifs who
have separate causes of action against the same defendant to
join themselves and their causes of action in one suit
ILR 18 All. 432
ILR 15 All. 380
ILR 4 All. 261

The plaintifs can only join in suing several defendants in one
suit for several causes of action when both the plaintifs and
the defendants are jointly interested in each or all of such causes
of action.
ILR 18 All. 131

Partner dies - frm - suit against frm - not abated AIR 1973 Patna
441

Even a limited company, liability of Director may be unlimited
vide Sec.322, 323 of Companies Act.

The omission to cancel any stamp may result in the document
being taken to be unstamped to that extent.
The drawing of two lines crossing each other across the face of the
stamp is an efectual cancellation AIR 1961 Raj. 43
ILR 1960 Raj 808

An illiterate person can direct the scribe of the promissory note
or any one else to sign across the adhesive stamp on his own
behalf. Such signature will be quite as good as his own signature
for the purpose of cancellation. Where a pronote requiring four
annas stamps bears only three cancelled one anna stamps and
one uncancelled stamp, it should be considered.
AIR 1934 Lah. 606
AIR 1981 Ker. 86

In a suit by the indorsee, the right of action is directly
dependent on the indorsement, and that form part of the cause
of action so as to give the court of the place of indorsement to
entertain a suit, not only against the indorser but also against the
drawer.
22 Cal. 451
31 MLJ 816
5 L.W. 246
AIR 1933 Lah. 940

AIR 1953 Mad. 767
1953-I M.L.J. 825
Sec.5 of Limitation Act not applies to appln. for leave to defend
Or.37 CPC.
Companies Act
Sec.51 service of company
54 document execution by company
47,48 execution of deeds
446 suits stayed against wound up company
632 payment of suit costs by company
125 Registration of charge
332 unlimited liability of Director

Generelia specialibus non derogant: It is well known proposition
of law that where a matter falls under any specifed provisin, then
it must be governed by that provision AIR 1985 46

Summoning of Document from another court R.358 CRP
R.75 CRP

Probate of Will
AIR 1954 Patna 175

Petition under Sec.482 Cr.P.C. after exhausting the remedy by
way of Revision, is not maintainable.
1990 SCC Crl. 537

Successor Judge can perform duty of his predeessor Sec.35 CPC. /
Cr.P.C.

Civil matters - lower court to be the forum Sec.15 CPC.

Vested remainder in immovable property is present interest in
property and can be sold AIR 1947 Bom 185
AIR 1917 Pat. 163

Mortgage also not forbidden ILR (1940) 2 Cal. 436 (PC)
AIR 1940 RC 134
45 CWW 253
Wrong quoting of provision will not invalidate order AIR 1985 SC
470

Firm is not a legal entity, nor is it a person. Order of adjudication
against a frm is an order against the individual partners AIR 1927
Lah. 234
AIR 1926 Sind 31
AIR 1932 Sind 62

Omission to implead Insolvency Court is fatal for the enforcement
of mortgage security AIR 1962 All 256
Sec.28 of Prov. Ins. Act.
Sec.17 Pre. Ins. Act.
Plaintif a secured creditor - in summary suit, amount deposited
as a condition for grant of leave - plaintif can lodge claim with A.
only for balance AIR 1993 Bom.112

Mere attachment does not make creditor secured (1935) 41 Bom
L.R. 506
AIR 1933 Nag. 229, AIR 1929n Cal. 524 , ILR 26 Mad. 673 , ILR 39
Mad. 903
Exparte merely means in the absence of the other party. The
passing of the order that the suit be heard exparte does not
debar the defendant to appear on subsequent hearings and
conduct his case from the date of his appearance (Venkatasubbiah
vs. Lakshminarayasimhan AIR 1925 Mad. 127 approved in
Sangram vs. Elec Tribunal AIR 1955 SC 425
Where good cause is not shown by the defendant for his earlier
absence and the application under Order 9, Rule 7 C.P.C. is
rejected, it is still open to the defendant to join and participate in
the proceedings at a later stage accepting the events which have
taken place in the interregunam, as they stand (Lotus
International vs. Chandrabhujadas Karnani Textiles (P) Ltd. 65
(1997) DLT 300, 306 DB.
Thiruppathy - Judge case - 2004-3-L.W. 230 S. Thirupathy vs.
State of Tamilnadu and the Registrar General, High Court
2004 (3) CTC 754 Techmo Car SPA vs. the Madras Aluminium
Company Ltd. Madras High Court DB per P. Sathasivam J.
The words `court` has been defned in Section 2(l) of the
Arbitration and Conciliation Act, 1996 as follows:
2(l)(e) Court means the principal Civil Court of original
jurisdiction in a district, and includes the High Court, in exercise
of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject matter of the arbitration
if the same had been the subject matter of a suit, but does not
include any Civil Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
Section 12 of the Tamilnadu Civil Courts Act, 1873 as it stood
prior to the Amendment Act 1/2004 shows that the jurisdiction
of a District Judge or a Subordinate Judge extends, subject to the
rules contained in the Code of Civil Procedure, to all original suits
and proceedings of a civil nature. Accordingly, as rightly claimed,
inasmuch as the petition under Sec.9 having been fled on
12.3.1993, i.e. prior to Act 1/2004, the proper Court is either the
District Court or the Sub ordinate Judge`s Court concerned.
However, as per Section 15 of the Code of Civil Procedure, suit
shall be instituted in the Court of the lowest grade competent to
try it. Accordingly, at the relevent time, Subordinate Judge`s Court
is the competent court to try the petition fled under Sec.9 of the
Act. As per Section 10 of the Act, the Arbitral Tribunal shall not
be bound by the Civil Procedure Code, 1908 or the Indian Evidence
Act, 1872. The said provision cannot come into operation when a
petition under Sec.9 is fled before the competent Civil Court.
hold that the Additional District Judge, Salem who passed the
impugned order, was not having jurisdiction on the date when the
petition was fled.
`Court of Record` is not defned in the Constitution. This
expression is well recognised in the judicial world. In Jowitt`s
Dictionary of English Law, `Court of Record` is defned as
A court whereof the acts and the judicial proceedings are enrolled
for a perpetual memorial and testimony, and which has power to
fne and imprison for contempt of its authority.
In Wharton`s Law Lexicon, court of record is defned as
Courts are either of record where their acts and judicial
proceedings are enrolled for a perpetual memorial and testimony
and they have power to fne and imprison, or not of record being
courts of inferior dignity, and in a less proper sense the King`s
Courts---and these are not entrusted by law with any power to fne
or imprison the subject of the realm, unless by the express
provision of some Act of Parliament. These proceedings are not
enrolled or recorded.
In Words and phrases (Permanent edn, Vol 10. p. 429) `court of
record` is defned as under:
Court of Record is a court where acts and judicial proceedings are
enrolled in parchment for a perpetual memorial and testimony,
which rolls are called the `record` of the court, and are of such
high and superiminent authority that their truth is not to be
questioned.
Halsbury`s Law of England, 4th Edn. Vol 10 , para 709, p 319
states:
Another manner of division is into courts of record and courts of
not of record. Certain courts are expressly declared by statute to
be courts of record. In the case of courts not expressly declared to
be courts of record, the answer to the question whether a court is
a court of record seems to depend in general upon whether it
has power to fne or imprison, by statute or otherwise, for contempt
of itself or other substantive ofences. If it has such power, it
seems that it is a court of record. The proceedings of a court of
record preserved in its archives are called records, and conclusive
evidence of that which is recorded therein. [Delhi Judicial
Service Assn. vs. State of Gujarat (1991)4SCC406 at 437-438,
AIR 1991 SC 2176, 1991 Crl.L.T.3086 (1991)3JT (SC)617, 1991
AIR SCW 2419]
(2002)I M.L.J. 760 Rengasami Reddiar (died) and others vs. M.K.
Mummachi Reddiar (died) and others - Mrs. Prabha Sridevan
Partition should be stamped and registered otherwise not
admissible in evidence.
But a Memorandum evidencing a family arrangement already
entered into and prepare as a record, need not be stamped or
registered. (2000) 2 T.L.N.J. 315 A.C. Lakshmipathy vs. A.M.
Chakrapani Reddiar. See also AIR 1966 S.C. 292 Tek Bahadur
Bhujil vs. Debi Singh Bhujil and others Family arrangement
essentials Arrangement when brought by document, registration
necessary Memorandum of arrangement - Registration not
necessary.
2004-4 L.W.429 Tirupati Balaji Developers Pvt. Ltd. & others vs.
State of Bihar & others - Supreme Court Judgment
Relationship between Supreme Court and High Court Remarks
called for by Supreme Court from Patna High Court Aversion
shown by Patna High Court - Such response expunged
Sec.34 of C.P.C. will not apply to a suit on mortgage. Interest has
to be fxed only under Order 34, Rule 11 CPC. at such rate as the
court may think ft. 1998-2 L.W. 26 N.M.Veerappa vs. Canara
Bank (Supreme Court DB)
2000 SCC (Cri) 1962 In the matter of `RV` a Judicial Ofcer -
High Courts shall have restraint, care and circumspection while
exercising its power of superintendence lest those who dispense
judge to others should themselves sufer injustice. The higher
tiers are provided in the judicial hierarchy to set right the errors
which could possibly have crept in, in the fndings, orders, or
proceedings of the courts at the lower tiers. It is well to remember
the words of a jurist that ` Judge who has not committed any
error is yet to be born`.
A.I.R. 1952 SC 317 State of Bombay vs. Purushottam Jog Naick
-
Paragraph 16 -
(16) We wish however to observe that the verifcation of the
afdavits produced here is defective. The body of the afdavit
discloses that certain matters were known to the Secretary who
made the afdavit personally. The verifcation however states that
everything was true to the best of his information and belief. We
point this out as slipshod verifcations of this type might well in a
given case lead to a rejection of the afdavit. Verifcation should
invariably be modelled on the lines of Order 19, Rule 3 of the Civil
Procedure Code, whether the Code applies in terms or not. And
when the mater deposed to is not based on personal knowledge the
sources of information should be clearly disclosed. We draw
attention the the remarks of Jenkins C.J. and Woodroofe J. in
`Padmabati Dasi vs. Rasik Lal Dhar` 37 Cal 259 and endorse the
learned Judges` observations.
(17) In fairness to the Home Secretary, we deem it right to say
that his veracity was neither doubted nor impugned by the High
Court, but only his means of knowledge. He was speaking of the
satisfaction of the Minister and the High Court was not satisfed
regarding his knowledge of the state of Minister`s mind. The
learned Judges considered that the Minister himself would have
been a more satisfactory source of information, but as we say, this
is not a question of law. As a matter of abstract law, of course,
the state of man`s mind can be proved by evidence other than that
of the man himself, and if the Home Secretary has the requisite
means of knowledge, for example, if the Minister had told him that
he was satisfed or he had indicated satisfaction by his conduct
and acts, and the Home Secretary`s afdavit was regarded as
sufcient in the particular case, then that would constitute legally
sufcient proof. But whether that would be enough in any given
case or whether the best evidence rule should be applied in
strictness in that particular case, must necessarily depend upon
its facts.

AIR 1970 SC 652 A.K.K. Nambiar vs. Union of India and another
The appellant made allegations against the Chief Minister of
Andhra Pradesh and other persons of whose names were disclosed
and some of whose names were not disclosed. Neither the Chief
Minister nor any other persons was made a party. The appellant
fled an afdavit in support of the petition. Neither the petition
nor the afdavit was verifed. The afdavits which were fled in
answer to the appellant`s petition were also not verifed. The
reasons for verifcation of afdavits are to enable the Court to fnd
out which facts can be said to be proved on the afdavit evidence
of rival parties. Allegations may be true to knowledge or
allegations may be true to information received from persons or
allegations may be based on records. The importance of
verifcation is to test the genuineness and authenticity of
allegations and also to make the deponent responsible for the
allegations. In essence, verifcation is required to enable the Court
to fnd out as to whether it will be safe to act on such afdavit
evidence. In the present case, the afdavits of all the parties sufer
from the mischief of lack of proper verifcation with the result
that the afdavits should not be admissible in evidence.
AIR 1978 Goa 12 Caetano Dias vs. Caetano Rodrigues -
Afdavits must be duly verifed. Ordinarily any conclusion of
the Court should be arrived at upon evidence, subject to cross
examination, if any. An exception is made by Or.19 of the C.P.C.
by allowing proof of certain facts to be made by afdavits. It
therefore stands to reason that those afdavits should strictly
abide with the prescribed form. Order 19, Rule3(1) states that
afdavits shall be confned to such facts as the deponent is able,
of his own knowledge to prove. An exception is made in case of
interlocutory applications. In such applications, statements of his
belief may be admitted .. To my mind in view of the
specifc provisions of R.3(1) a verifcation is necessary. Rule 3(1)
makes it incumbent upon the parties swearing afdavits to state
that the deponent is able , of his own knowledge, to prove the facts
stated in the afdavit. The main reason why a verifcation of an
afdavit must be strictly made is that the deponent must be
made responsible for the statements made by him. .Such
proof is however allowed with a view to expediting proceedings. It
would well-nigh impossible to dispose of interlocutory applications
within a short time if proof by afdavits was not allowed. For all
these reasons, verifcation of afdavits is of paramount
importance. Absence of such verifcation is fatal to the afdavit
and the evidence contained therein should not be admitted, nor
relied upon.
..The High Court observed that the words that the contents
of the afdavit are true and correct to the best of my knowledge
and belief carry no sanctity and such a verifcation cannot be
acted upon.
AIR 1955 Punjab 164 State vs. Dittu Ram Pritam Dass - While
dealing with applications under Sec.5 of the Limitation Act, Courts
are always infuenced by the consideration whether extension of
the period of limitation is likely to afect the rights which have
come to vest in the opposite party by efux of time. If therefore a
convict `s appeal is out of time it is the practice of the Punjab High
Court to condone the delay as no right can be said to vest in the
State to have the conviction of an innocent person upheld. But
it is not so in the case of State fling petition under Sec.5 of the
Limitation Act to condone delay in fling appeal against acquittal of
a person.
Lord Denning in his benchmarking style had maintained:
When a Judge sits to try a case .he himself is on trial - before
his fellow country men. It is on his behaviour that they will form
their opinion of our system of justice. He must be dignifed so as
to earn the respect of all who appear before him. He must be alert
to follow all that goes on. He must be understanding - to show
that he is aware of the temptations that beset everyone. He must
be merciful so as to show that he too has that quality which
droppeth as the gentle rain from heaven upon the place beneath.
2005-1- Law Weekly Journal Section - Speech of Chief Justice
Mr. Justice R.C. Lahoti while inagurating the additional building of
Gauati High Court on 7.8.2004
Verifed Petition
Or.VI, Rule 14A(2) CPC.
Rule 56 (6) CRP
Petitions with supporting afdavits
Rule 48(2) CRP Transfer Petition
Rule 82 CRP Commissioner
Order 38, Rule 1 CPC.
Order 39, Rule 1 CPC
Order 32, Rule 3 Afdavit verifying facts
Order 41, Rule 3A condone delay
Sec.408 r/w 407(3) Cr.P.C. Transfer Petition
Rule 196 Crl.R.P. condone delay
Onerous condition while granting bail (1980) 1 Supreme Court
Cases 81 Hussainara Khatoon and others vs. Home Secretary,
State of Bihar Imposing of onerous condition while granting bail
Bail system oppressive and discriminatory against the poor.
Afdavit - AIR 1988 SC 1381 Smt. Sudha Devi vs. M.P. Narayanan
and others - Sec.3 of Evidence Act - Afdavit is not included as
evidence in the Evidence Act. Unless court permits, it cannot be
treated as evidence.
Afdavit AIR 1956 Calcutta 496 Biskha Rani Chose vs. Satish
Chandra Reddy Verifcation of afdavit that to the best of my
knowledge means nothing. This kind of verifcation cannot be
accepted.
Sec.47 CPC. appeal AIR 1994 AP 334 B. Nookaraju vs. M.S.N.
Charities and others Under the unamended Code, all questions
decided by the Executing Court and covered by Section 47 were
treated as decrees as defned under Sec.2(2) of the unamended
Code and therefore they were not appealable orders. Now, in view
of exclusion of òrders` passed under Sec.47 of the unamended
Code from the defnition of `decree` as per the amended Code,
orders passed under Section 47 of unamended Code are not more
`decrees` and they are only àppealable orders` not attracted by
Section 96 of the Code. Only CMA will lie, even against deemed
decrees.
Joint Family property 2001-L.W. 1 700 Mohanraj vs Vallachi
Ammal and 8 others Madras High Court S. Jagadeesan J. -
heirs after his death, so far as male heirs are concerned it will
assume the character of joint family property. - In the case of
disposition by father the property will assume the character in the
hands of the son, depending on the recital. Section 8 of the Hindu
Succession Act has no application, where father dies leaving sons
as well as female heirs, entitled to inherit jointly with the sons.
No natural guardian under Sec.6 of the Hindu Minority
Guardianship Act.
AIR 2002 Madras 296 Mr. Justice V. Kanagaraj Govindammal vs.
Bhuvaneswari Financing Corporation - Estate of deceased
whether actually have vested on the heirs Must be pleaded and
Issued should be framed while suing heirs of a deceased
Afdavit - AIR 1988 SC 1381 Smt. Sudha Devi vs. M.P. Narayanan
and others - Sec.3 of Evidence Act - Afdavit is not included as
evidence in the Evidence Act. Unless court permits, it cannot be
treated as evidence.
Afdavit AIR 1956 Calcutta 496 Biskha Rani Chose vs. Satish
Chandra Reddy Verifcation of afdavit that to the best of my
knowledge means nothing. This kind of verifcation cannot be
accepted.
Sec.47 CPC. appeal AIR 1994 AP 334 B. Nookaraju vs. M.S.N.
Charities and others Under the unamended Code, all questions
decided by the Executing Court and covered by Section 47 were
treated as decrees as defned under Sec.2(2) of the unamended
Code and therefore they were not appealable orders. Now, in view
of exclusion of òrders` passed under Sec.47 of the unamended
Code from the defnition of `decree` as per the amended Code,
orders passed under Section 47 of unamended Code are not more
`decrees` and they are only àppealable orders` not attracted by
Section 96 of the Code. Only CMA will lie, even against deemed
decrees.
Joint Family property 2001-L.W. 1 700 Mohanraj vs Vallachi
Ammal and 8 others Madras High Court S. Jagadeesan J. -
heirs after his death, so far as male heirs are concerned it will
assume the character of joint family property. - In the case of
disposition by father the property will assume the character in the
hands of the son, depending on the recital. Section 8 of the Hindu
Succession Act has no application, where father dies leaving sons
as well as female heirs, entitled to inherit jointly with the sons.
No natural guardian under Sec.6 of the Hindu Minority
Guardianship Act.
Page 296 Mulla Code of Civil Procedure (abridged) 14th Edition
Section 2(2), before 1976, provided that the determination of any
question under S.47 is a decree unless it is appealable as an order.
. Such a determination when it is between the parties to the
suit or their representatives falls under Sec.47 but is nevertheless
subject to one appeal only as an order under S.104. ..All other
decisions in execution under S.47 were decrees and subject to
frst and second appeal. .Orders passed under special statutes
had been held to be appealable under this section if they related
to execution, discharge or satisfaction thereof. (AIR 1953 Mad. 56
Desikachariar vs. Ramachandra) . The position has been altered by
amendment of 1976 which has amended S.2(2) by deleting the
portion which included determination under S.47. Under the
present position, such determination will no longer be appealable.
As regards appeal, therefore, orders in execution proceedings may
be divided into three classes:
(1) Order under this section which are determinations of
questions. after 1976, they are not appealable.
(2) Orders, which whether they fall under this section or not,
are declared to be orders under O.43, R.1 and are subject to one
appeal only.
(3) Non-appealable orders, generally of an interlocutory nature.
----------------------------------------------------------------------------------
The words `Section 47 or` have been omitted by the Amending
Act 104 of 1976. The joint committee of the Parliament was of
the view that the inclusion of Section 47 in the defnition of the
expression `decree` is mainly responsible for the delay in the
execution of the decree.

----------------------------------------------------------------------------------
Comments by Sarkar`s The Law of Civil Procedure Tenth Edition
2002 page 502,503
S.99-A was inserted in the original bill on the recommendation of
Law Commission (vide 54th Report P.74) adopting the principles of
S.99 specifcally with regard to appeals against fnal orders under
S.47. Joint Committee recommended amendment of the defnition
of decree in S.2 (2) by excluding therefrom determination of any
question under Sec.47 to make the fnal under order under S.47
non-appealable in order to reduce the delay in the execution of
decree, but did not recommend any consequential relief any
consequential amendment to delete this section: and the bill as
such was passed by the Legislature. The result has been that, as
there will no appeal against fnal order under S.47, this section
remains in the statute as those serving no useful function.
Comments by Sarkar`s The Law of Civil Procedure Tenth Edition
2002 page 319.
An order determining any question under Sec.47 not being a
decree within S.2(2), no appeal lies against it. Revision will be
entertainable under S.115 CPC., provided the conditions laid
down by that section are satisfed. Orders, in execution
proceedings (not falling within S.47) which have been declared to
be appealable under Sec.104 are appealable as order (eg. Or.21, rr
34, 72, 92 and 106(1). Besides, some orders have been
specifcally made appealable as decrees under provisions relating
thereto (eg. Or.21, rr 43A, 46B, 46C, 46E, 51, 58, 98 and 100). In
view of exclusion of òrders` passed under Sec.47 of unamended
code, from the defnition of `decree`` as per amended code, and
they are only appealable orders not attracted by sec.96 of the
Code. (B. Nookaraju v. MSN Charities AIR 1994 AP 334, 336).
Revision is maintainable against order of executing court rejecting
an application under S.47 (Dhusan v. Dhadi AIR 1983 Orissa
127).
By removing Section 47 CPC from the ambit of Section 2(2)
by amendment any order order Section 47 does not automatically
become apppealable. The Court will have to decide the matter of
maintainability by assessing if the order fnally disposes of the
controversy and afects the rights of the parties fnally [National
Jute Manufacturers Corporation Ltd. vs. Ramnagar Cane & Sugar
Co. Ltd. 1999 CWN 540]. In certain circumstances an order
under Section 47 is appealable only at the choice of the judgment
debtor. [National Jute Manufacturers Corporation Ltd. vs.
Ramnagar Cane & Sugar Co. Ltd. 1999 CWN 540].
Afdavit
Sec.5 of the Limitation Act does not require any afdavit
specifcally.
In this connection, it has to be pointed out that Rule 34 of Civil
Rules of Practice provides for swearing of the afdavit before an
Àdvocate` also, [other than the advocate appearing for the
deponent]. This `clause` appears to have been subsequently
included. But, such a clause including Àdvocate` has not been
included in the list of persons before whom afdavit is to be
sworn, and this is clear from Rule 34 of the Criminal Rules of
Practice.
Sec.120 of the Evidence Act speaks about competency of
witnesses. It says that a husband can swear for wife and, a wife
can swear for husband.
2005 SCC (Crl) 435 Sunita Devi vs. State of Bihar and another
[refers to State of Ratan Lal Arora (2004) 4 SCC 590 = 2004 SCC
(Crl) 1353 - where in a case the decision has been rendered
without reference to statutory bars, the same cannot have any
precedent value and shall have to be treated as having been
rendered per incuriam. Incuria literally means
carelessness. In practice per incuriam is taken to mean per
ignoratium.
AIR 1985 All. 12 Bishambar Dayal vs. Vishwanath Promise to
pay time barred debt Execution of promissory note in lieu of such
debt mention of factum of debt being time-barred not required .
AIR 1975 Mad 164 Kapaleeswarar Temple vs. Tirunavukkarasu -
Con tract t pay time-barred debt Tenant giving an undertaking to
landlord to pay of arrears of rent (part of arrears time-barred
debt) Landlord is entitled to recover entire arrears - Section
25(3) of the Contract Act is far wider in scope than the
acknowledgment contemplated in Sec.18. The contract under
Section 25(3) is an independent and enforceable contract.
2005(2) CTC 582 (Supreme Court Per R.C. Lahoti, C.J.I. D.B)
Vithalbhai Pvt. Ltd. vs. Union of India - No Cause of action at the
time of institution of suit Sec.111 of T.P. Act. Para 23 In the
case at hand, the act of the plaintif fling the suit before 25.6.1984
cannot be said to be malicious or intended to overreach the Court.
The defendant`s reply dated 8.11.1983 prompted the plaintif in
fling the suit inasmuch as the plaintif reasonably thought that a
cloud was already cast on his entitlement to recover the property
and he should promptly approach the Court. True, the defendant
could have changed his mind and thought of delivering the
possession of the property to the plaintif n or after 25.6.1984 the
date whereafter only the suit could ordinarily have been fled and
in that case there would have been no occasion at all for fling the
suit. The defendant fled its written statement much after that
date. The objection as to maintainability of the suit was taken in
the written statement. If only it would have been pressed for
decision and the Court would have formed that opinion at the
preliminary stage, then the plaintif could have withdrawn the suit
or the Court could have dismissed the suit as premature. In
either case, the plaintif would have fled a fresh suit based on the
same cause of action soon after 25.6.1984. By the time the suit
came to be decided on 12.2.1992, the dismissal of the suit on the
ground of its being premature would have been a travesty of justice
when the plaintif was found entitled to a decree otherwise. The
learned Single Judge rightly overruled the defendant`s objection
and directed the suit to be decreed. The Division Bench ought not
to have interfered with the judgment and decree passed by the
learned Single Judge.
2005-1 L.W. Crl. 83 State of Orissa vs. Nalinikanta Muduli -
Counsel should not cite over-ruled judgments and should not mis-
lead the courts
Delay in fling written statement after 90 days Time prescribed is
directory and not mandatory May be enhanced 2005(3) CTC
355 Kailash vs. Nanhu & other ( Supreme Court)
Printed clause that Bombay Court alone shall have jurisdiction
is a void stipulation and such a question will arise, only where
there is a choice of forum of instituting the suit. 1998-3-L W 71
1989-1 L.W. part 20 page 543
Jurisdiction - AIR 2005 Karnataka 94 Globe Cogeneration Power
Ltd. vs. Sri Hiranyakeshi Sahakari Sakkere Karkhane Niyamit,
Sankeshwar, Karnataka - Parties by consent cannot confer
jurisdiction on court if such court has no jurisdiction.
Jurisdiction AIR 2003 SC 1127 Modi Entertainment Network and
another vs. W.S.G. Cricket Pte. Ltd. - Para 10 In regard to
jurisdiction of Court under the Code of Civil Procedure (CPC) over
a subject-matter, on or more Courts may have jurisdiction to deal
with it having regard to the location of immovable property, place
of residence or work of a defendant or place where cause of action
has arisen. When only one Court has jurisdiction it is said to
have exclusive jurisdiction; where more Courts than one have
jurisdiction over a subject-matter, they are called Courts of
available or natural jurisdiction. The growing global commercial
activities gave rise to the practice of the parties to a contract
agreeing before hand to approach for resolution of their disputes
thereunder, to either any of the available courts of natural
jurisdiction and thereby create an exclusive or non-exclusive
jurisdiction in one of the available forum or to have the disputes
resolved by a foreign court of their choice as a neutral forum
according to the law applicable to that Court. It is well settled
principle that by agreement the parties cannot confer jurisdiction,
where none exists, on a Court to which CPC applies, but this
principle does not apply when the parties agree to submit to the
exclusive or non-exclusive jurisdiction of a foreign Court; indeed, in
such cases the English Courts do permit invoking their
jurisdiction. Thus it is clear that the parties to a contract may
agree to have their disputes resolved by a foreign Court termed as
a `neutral Court` or `Court of choice`, creating exclusive or non-
exclusive jurisdiction in it.
Srinivasan J. V.P. Nagarajan vs. Prabhavathi 19 and R.2 CPC.
Advocates Act Sec.49(c) and R.13 Advocates fling afdavits
without realising implications and consequences and taking up
the responsibility of a witness and liability to be cross-examined,
unhealthy practice - Vain glory to think that as the members
of the legal profession occupy a high status, his afdavit will be
accepted on its own weight without any corroboration.
CPC. 19, R.2
Rule 13 in Chapter V in Part III of the Rules framed by the Bar
Council of India, under Sec.49(c) of the Advocates Act, 1961:

"An advocate should not accept a brief or appear in a case in
which he has reason to believe that he will be a witness, and if
being engaged in a case, it becomes apparent that he is a witness
on a material question of fact, he should not continue to appear as
an advocate if he retires without jeoparadising his client`s
interests."

Advocate can fle afdavit. No doubt, it is true that each and
every afdavit has got to be fled by the concerned party or by their
authorized person, agent or attorney or person who knows the
facts of the case also. Here, the advocate on record fled the
afdavit wherein he has specifcally stated that he was well aware
of the facts of the case and only in the said circumstances, he has
fled an afdavit to set aside the exparte decree and also an
application to condone the delay. The circumstances under which
the defendant was set exparte, explained by the deponent and it
was only within the knowledge of the advocate on record and he
knows the facts of the case and only in the said circumstances he
had fled the afdavit That apart, the concerned advocate holds
vakalat for the defendant and hence, he is entitled to represent his
party. The petitions have been fled only to safeguard the right
and interest of the party and it is not prejudicial to the interest of
the party, and hence, it cannot be said that the advocate on record
is not entitled to fle the afdavit and petitions on behalf of his
party, when especially the said petitions have been fled to
safeguard the interest of the party. by Mr. K. Gnanaprakasam J.
in The Airport Director, Air Port Authority of India, Chennai vs.
Gnanasekaran (2004) 2 M.L.J. 701
An advocate`s clerk can fle afdavit. Why I am extracting the
contents of the afdavit is that the afdavit is sworn to by a person
who is acquainted with the facts of the case and who is
acquainted with the proceedings of the Court. He narrated what
transpired before the court on that date. . The clerk by
himself has not fled the petition. It is well settled that any person
who is conversant with the facts of the case and who is a witness
as to what transpired before the Court is competent to fle
afdavit. --by Mr. S.S. Subramani J. in L.C. Saptharishi vs. E.D.
Balasubramaniam (2000-1 L.W. 130)
The relationship between advocate and client is based only on
confdence and trust. Legal profession is considered to be a noble
profession and if an advocate is allowed to give advice to one party
and appear for the opposite party in Court, the confdence reposed
on him will be lost and his conduct will amount to prostitution of
profession. Counsel appearing for one party is not expected to
please both his party and opposite party and if he dose so, it will
amount to professional misconduct and breach of trust. -- by Mr.
Justice S.S. Subramani J. in S.V. Duraiswamy vs. Dayalan and
others (2000-1 L.W. 132)
Hand-writing expert opinion -A.I.R. 1996 SC 1140 - Comparison
of handwritings - by court - without the assistance of Handwriting
Expert - not proper. - also verify AIR 1997 SC 3255
Hand-writing Expert (2002) 2 M.L.J. 365 Gopal and another vs.
Ambiga and others Practise of sending original documents to
Forensic Laboratory deprecated Handwriting Expert can only
take photographs of the original for comparison.
Hand writing expert opinion - (2005)3 M.L.J. 268 Chinnappan
and another vs. Chinnammal - says : In Venkatalakshmiah vs.
Venkatappa and another (1991)1 M.L.J. 383 this court (Madras
High Court) has held thus: The decision in R.Ramaswamy vs.
Seethamma (1990)2 L.W. 15 only says that it is not essential that
the Handwriting Expert must be examined to prove or disprove a
writing and that the Court is competent to compare the disputed
writing with the admitted writing. But that does not that in no
case, the court could allow a party to establish his case by having
the disputed handwriting examined by a Handwriting Expert. Ma
be the court also can do the comparison of the disputed signature
with any admitted signature and arrive at a decision in that
regard. But when the defendants choose to have the beneft of the
handwriting expert also to prove their case, they cannot be
prevented unless their attempt is very much belated or with any
ulterior motive.
Hand writing expert opinion -In Kothandapani Padayachi vs.
Ranganatha Padayachi (1997) 1 M.L.J. 304, Madras High Court
has held: This Court as well as the Supreme Court have been
indicating that although there is no legal bar to the judge using his
own eyes to compare the disputed writing with the admitted
writing, he should, as a matter of prudence and caution, hesitate
to base his fnding solely on comparison made by himself. The
prudent course is said to lie in obtaining the opinion and
assistance of the expert also. It is equally reiterated that prudence
demands that the court should be extremely slow in venturing an
opinion on the basis of mere comparison since a comparison of
handwriting is at all times a mode of proof hazardous and
includive and especially when it is made by one not conversant
with the subject and without such guidance as might be derived
from the evidence of experts.
Hand writing expert opinion -In Dhanakodi Pandayachi vs.
Muthukumaraswami (1997) 2 M.L.J. 37 the Madras High Court
has held that the role of the court while exercising the powers
under Sec.73 of the Evidence Act and method of approach to be
adopted would vary also depending upon the relative facts and
circumstances of the case. In the light of the principles laid down
by the Apex Court in the latest pronouncement referred above, one
of the reasons assigned by the learned frst appellate Judge in this
case to reverse the fnding of the learned trial Judge which has
been recorded on undertaking a comparison by himself of the
disputed signature with the admitted signatures cannot be said to
be wholly erroneous in law or an unjustifed criticism of the
method of test adopted by the learned trial judge in the case.

Hand writing expert opinion - In Somasundaram vs. Palani
(2001) L.W. 511 it has been held that even though the court may
have the power to compare the signatures, there must be some
admitted signature of the defendant, on the basis of which a
comparison will have to be made. In this case, a comparison has
been made on the basis of signatures afxed by defendant in the
vakalath and written statement, which are documents that have
come into existence after the dispute arose and after the
promissory note in question was fled into court along with the
plaint. A comparison should not have been made on he basis of
those signatures.
Amendment of pleading Or.6, Rule 17, Proviso CPC. will not
apply to pleadings fled before the commencement of the
Amendment Act and hence proviso will not apply to plaint or
written statement fled before 1.7.2002. Amendment Acts 1999
and 2002 - Rethinam @ Anna Samuthiram Ammal vs. Syed Abdul
Rahim (2005)3 M.L.J. 94 P.K. Misra J. of Madras High Court
(Madurai Bench)
Amendment of pleading Chinnakkal vs. Marakkal (2005)3 M.L.J.
577 Relief of mandatory injunction sought to be included
original suit for permanent injunction proposed amendment
seeks to amend the plaint for mandatory injunction and the court
is called upon to adjudicate an entire diferent case.
C.P.C. Amendment - Analysis by Supreme Court - (2005) 6
S.C.C. 344 Salem Advocate Bar Association, T.N. vs. Union of
India
Order 1, Rule 10 C.P.C. - Impleading of party - in Specifc
Performance Suit - Only parties to the contract or their L.Rs. can
be parties and not a party setting up title over the property
adverse to the vendor. - Decree can be passed, in the absence of
such third party setting up title - (2005) 6 S.C.C. 733 -
"The ordinary rule of civil law is that .the decree in a suit should
accord with the rights of the parties as they stood at the
commencement of the lis. However, the Court has power to take
note of subsequent events and mould the relief accordingly
subject to the following conditions being satisfed: (i) that the
relief, as claimed originally, has, by reason of subsequent events,
become inappropriate or cannot be granted, (ii) that taking note of
such subsequent event or changed circumstances would shorten
litigation and enable complete justice being done to the parties;
and (iii) that such subsequent event is brought to the notice of the
court promptly and in accordance with the rules of procedural law
so that the opposite party is not taken by surprise." -- Om
Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256. Also see
Sasitnagjee Purushotham & Co. vs. Vimalabai Prabhulal and
others (2005) 8 SCC 252, and Kedarnath Agarwal (dead) and
another vs. Dhanaraj Devi (dead) by L.Rs. and another (2004) 8
SCC 76

Any person aggrieved with an order/judgment can fle appeal
against the same and such person need not be a party to the suit
or proceedings in the trial court - M.P. Kanoi vs. Palani 2001(3)
C.T.C. 452 per David Christian J. (Madras High Court) -
Mariasilvar vs. Srikumari Amma 1998 II C.T.C. 218 per Sampath
(Madras High Court) - Adi Pherozshah vs. H.M. Seervai A.I.R.
1971 S.C. 374
A sale deed executed prior to attachment before judgment, though
registered subsequently, will prevail over attachment before
judgment (Hamda Ammal vs. Avadippa Pathar 1991(1) SCC 715)
Not only a sale deed but even an agreement of sale will prevail over
attachment before judgment made subsequent to the agreement of
sale. (Vannarakkal Kallalthil Sreedharan vs. Chandramaath
Balakrishnan 1990(3) SCC 291)

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14.

Rule against perpetuity (Transfer of Property Act)

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