P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314. “It is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs’ title. It is settled rule of law that as being co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.

Vidya Devi v. Prem Prakash, (1995) 4 SCC 496.27. From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case5 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.

Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271. 31. In Vidya Devi v. Prem Prakash3 this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) “27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case4 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600. 10. In Mohaideen Abdul Kadir v. Mohd. Mahaideen Umma their Lordships held that no hard-and-fast rule can be laid down. But the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession, denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right.

Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791. 17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate4 wherein it was held: (AIR p. 117, para 8) “8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court’s judgment in Mohd. Baqar v. Naim-un-Nisa Bibi5. The Apex Court has very categorically held in para 7 as under: (AIR p. 550) ‘7. … The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.’ ” It was observed: (AIR p. 117, para 10) “10. … Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-settled law.”

S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if “the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the Trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set-up. Therefore, we do not see any infirmity in the said finding recorded by the Trial Court.

Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434. 24. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that: (SCC p. 505, para 28) “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Rajashekar vs State by Banavasi PS. Criminal Petition 8846/2015 decided on 3 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347381/1/CRLP8846-16-03-11-2020.pdf

Relevant Paragraphs: 12. In the instant case, the second respondent who  is a defacto complaint initiated criminal prosecution against the petitioner who is arraigned as accused by registering private complaint in PCR No.13/2015 based upon which Crime No.111/2015 came to be registered by the first respondent for the aforesaid offences. As already stated in detail that the petitioner/accused when he presented cheque which was issued by the second respondent for a sum of Rs.6,60,000/- at his banker Corporation Bank, Shiralakoppa branch, Shikaripura Taluk, Shimoga, the said cheque was returned with a  shara stating “ insufficient fund” and “signature differs”. This ground was also urged in this petition for seeking intervention of the criminal prosecution initiated against the petitioner/accused. The petitioner/accused is a close relative of second respondent and also a progressive agriculturist who approached the second respondent offering to cultivate the land belonging to him.

13. Further the offence alleged against the petitioner under Section 418 of IPC that the petitioner has cheated the second respondent is also not correct as  the  allegations made in the complaint does not attract the ingredients of Section 418 of IPC. Similarly the ingredients of Sections 420 and 468 of IPC also does not attract in the present case. These are all the facts that reveals in the materials available on record.

14. It is relevant to refer the scope and object of Section 482 of Cr.P.C. which deals with the inherent powers of the Court which has to be exercised judicially, judiciously, sparingly and cautiously, if not, there shall be miscarriage of justice and so also, abuse of process of law. While exercising the jurisdiction under Section 482 of Cr.P.C. the Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not  or whether on a reasonable appreciation of it, the accusation would not be sustained.  Section 482 Cr.P.C it is only to intervene with judicially and judiciously in order to avoid the abuse of process of law and also to secure the ends of justice.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Syed Asif Ali and another vs The State of Karnataka and another. Criminal Petition 2614/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347386/1/CRLP2614-17-05-11-2020.pdf

Relevant Paragraphs: 9. Section 482 of Cr.P.C. include powers to quash  FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and  are of wide magnitude and ramification. Such powers can  be exercised to secure ends of justice, prevent abuse of the process of  any court and to make such orders as may  be necessary to give effect to any order under this Code, depending upon the facts of a given  case.  The  Court  should take note of any miscarriage of justice and prevent the same by exercising its powers under  Section  482  of  the Code. However, such inherent powers are to be exercised judicially, judiciously, sparingly and cautiously.

10. Even though the case against these accused have been proceeded with facing of trial for the aforesaid offences, it is nothing but formalities and closing of the case. Therefore, circumstances warrant this court to intervene by exercising the inherent power under Section 482 of Cr.P.C., if not, there shall be miscarriage of justice and also abuse of process of law. However, consciously the materials have been looked into and rescanning has been done. When once the co- accused have been acquitted, the same benefit shall be accrued to these petitioners also. Then only constitutional protection under Article 21 of Constitution of India shall be enshrined, if not, certainly there shall be miscarriage of justice.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

Eswaraiah v. B.S. Siddalingappa. ILR 1999 Kar 3037

Full Judgment below.

T.N. VALLINAYAGAM, J.:—Defendant No. 2 is the appellant who is aggrieved by the grant of injunction against him alone by the Courts below.

2. The facts are not in serious dispute. The plaintiffs who are the sons of one Siddamallaiah have filed a suit against their uncle Siddappa. Siddamallaiah and Siddappa being the brothers, Defendant No. 2 Eswaraiah is the person who purchased the share of Siddappa in the suit property. Claiming the entire property as joint family property belonging to joint family of Siddappa and Siddammallappa the suit for injunction came to be filed. The first defendant claim that there was a partition in the family on 16.2.76 and on the basis of the partition he is in possession of the suit property and only on that basis he has sold the property to the second defendant. Consequently, neither Siddamallaiah nor Siddappa the owners are entitled to any share in the property. The first defendant resisted the suit contending that in view of the fact that he is entitled to the value of the property there cannot be any injunction against him or against his purchaser. The second defendant claim that his purchase is valid in the eye of law and he is in possession consequently no injunction shall follow.

3. The Courts below despite holding that the possession of the suit property between the plaintiff and the first defendant deemed to be in joint possession, granted the relief of injunction on the ground that defendant No. 2 has failed to prove partition. Hence, the second appeal.

4. The question to be considered before this Court is whether the second defendant who claims under first defendant can be treated as co-owner and if that be the case whether injunction can be issued against such co-owner.

5. Even according to the learned Counsel for the appellant there is no difficulty in getting into general proposition of law that there shall not be any injunction against co-owner or persons in joint possession. Infact, the finding of the Trial Court, in respect of such a possession is as follows:

“These documents and evidence show that plaintiff is in joint possession and enjoyment of the suit schedule property by the plaintiff and defendant No. 1.”

The appellate Court confirmed and maintained the finding as follows:

“The plaintiffs contend that themselves and defendant-1 have been in lawful possession and enjoyment of the suit land and in its entirety.”

Therefore, so long, as there is joint possession even according to the claim of the plaintiff, there can never be an injunction against defendant-1.

6. Now what is the position of the second defendant. Even the I prayer for injunction is against the defendant or anybody claiming under them. Now, certainly the second defendant claims under him and this factum cannot be disputed because he is the purchaser under the registered sale deed. It is also claimed by him that he is in exclusive possession of the portion purchased by him. Therefore, prima facie on general principle of law, which is not disputed by the learned Counsel for the appellant and which cannot be disputed no injunction can lie against either defendant No. 1 or defendant No. 2.

7. There was one document Ex. D.1 which has come into operation. This is what the appellate Court says against Ex. D.1.

“It is true that there is Ex. D.1 which acknowledges the contention regarding partition and separate possession of half suit land by defendant No. 2. But, in this regard, it has to be stated that this document has come into existence in the Police Station on account of the dispute that arose between the plaintiffs and defendant-2. Having regard to its origin in the Police Station and having regard to the other documentary evidence, discussed above, in the foregoing paragraphs, this is a stray document which cannot over-weigh the other documentary and oral evidence and the circumstances discussed in the foregoing paragraphs. Therefore, from this document, defendant-2 cannot derive any benefit to contend that he has been in possession and enjoyment of half share in the suit land.”

Simply because the document is executed, it does not lose its evidentially value. So long as the document is disputed for a period of nearly 9 years this document has not been challenged. In any event, that will only go to show that the possession of the second defendant in respect of that particular portion of the property which the first defendant claim to have been in enjoyment was not disputed atleast before the authority who is there to maintain law and order.

8. Looking at any point of view, there can never be injunction against the second defendant as well. The question whether there is a partition or not is not necessary to decide in this case. In any event, the learned Counsel for the appellant relies upon the following passages in Rustomji on Registration 4th edition 104.

“But a document which is not itself the instrument of partition but is merely an acknowledgment or statement of fact that there had, in time past, been a partition between the parties, is not compulsorily registrable.”

“Thus, a mere written memorial or recital of a partition that had already taken place (i.e. of a previously completed transaction) does not require registration.

 “In dealing with cases relating to partition, the question to be determined is in effect, does the document constitute the bargain between the patties (i.e. is it a deed of partition effected in praesenti) or is it merely the record (or recital) of an already completed transaction (i.e. Partition).

According to him, if what is recorded is past transaction no registration is necessary of such record. He also relied upon the ditcum in Roshan Singh v. Zile Singh1 to the following effect.

“It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction, it is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow; (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872, (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”

There can be no dispute that whenever the past transaction is recorded in a document and so long as the document by itself does not create any right between the parties such a document does not require registration; but only those documents under which right is created are hit by Section 17(1) of the Registration Act. In this case a reference is made by the learned Counsel for the appellant to a sale deed which he wanted to file as additional document wherein the factum of partition has been recorded and it has been made clear that what has been sold by the first defendant was a divided portion of the property. Therefore, prima facie I am satisfied that the factum of partition as relied upon by the first defendant evidences the fact that partition has taken place. But it has got to be decided between the parties if the plaintiff disputes such factum of partition. Therefore, the plaintiff is given right to question such memorandum or to claim partition in respect of the property. In any event, I am convinced that the defendant is in possession of the property which has been sold to him by the first defendant and there can be no injunction against him at the instance of the plaintiff.

9. In this view, setting aside the judgment and decree of the Courts below and answering the question in favour of the appellant this second appeal is allowed and the suit is dismissed with costs.

*          R.S.A. No. 612/1996.

1.        AIR 1988 SC 881.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Ningappa and others vs The State of Karnataka. Criminal Appeal 100059/2018 decided on 19 August 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342132/1/CRLA100059-18-19-08-2020.pdf

Relevant Paragraphs: 86. Whenever prosecution invokes Section 34 of IPC, it must be established that the criminal act  was  done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- “(i) there was common intention on the part of several persons to commit a particular crime and ii) the crime was actually committed by them in furtherance of that common intention.”

87. The essence of liability under Section 34 IPC thus can be summarized as simultaneous conscious mind of persons participating in the criminal action to bring about a particular result by a  pre-arranged  plan and acting in concert pursuant to it.

88 & 93. Judgments in Suresh v. State of U.P., (2001) 3 SCC 673 paragraphs 39, 40, 42, 44, 46, 51 relied on. Asif Khanv.StateofMaharashtra,reportedin(2019)5SCC 210 paragraphs 22 relied on. Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC 305, paragraphs 12, 13, 14 relied on.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

ಉದಾಹರಣೆ-. ಸ್ವತ್ತಿನ ಹಕ್ಕು ಬಿಡುಗಡೆ (ರಿಲೀಸ್) ದಾಖಲೆ ಖಡ್ಡಾಯವಾಗಿ ನೊ೦ದಣಿ ಆಗಬೇಕು. ಇದು ನೊ೦ದಣಿ ಆಗದಿದ್ದರೆ, ಇದನ್ನು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಸ್ವೀಕರಿಸುವ೦ತಿಲ್ಲ. ಆದರೆ ಈ ದಾಖಲೆಯಲ್ಲಿ ನೊ೦ದಣಿ ಆಗಬೇಕಾಗಿರದ ಮರಣ ಶಾಸನದ ಬಗ್ಗೆ ಉಲ್ಲೇಖವಿದ್ದರೆ, ಈ ಒ೦ದು ಅ೦ಶವನ್ನು ಸಾಬೀತು ಪಡಿಸಲು, ನೊ೦ದಣಿ ಆಗದ ಹಕ್ಕು ಬಿಡುಗಡೆ (ರಿಲೀಸ್) ಅನ್ನು ಹಾಜರು ಪಡಿಸಿ ಸ್ವೀಕರಿಸಬಹುದು. ಆದರೆ ನ್ಯಾಯಾಲಯ ಈ ಒ೦ದು ಅ೦ಶಕ್ಕೆ ಮಾತ್ರ ದಾಖಲೆಯನ್ನು ಸ್ವೀಕರಿಸಬಹುದು. ಹಾಗೂ ಇದರ ಬಗ್ಗೆ ನ್ಯಾಯಾಲಯ ನಮೂದಿಸಬೇಕಾಗುತ್ತದೆ.

Gangamma vs Rangaiah and others. Writ Petition 15209/2015 decided on 21 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346526/1/WP15209-15-21-10-2020.pdf

Facts: In a suit for declaration, the plaintiff wanted to produce unregistered release deed in which there was an admission regarding the will under which the plaintiff claimed ownership. The trial court rejected the prayer.

Relevant Paragraphs: 11. It is trite law that any document which purports or operates to create, declare, assign, limit or extinguish  any right, title or interest, in respect of an immovable property having a value of more than one hundred  rupees is compulsorily required to be registered as envisaged under Section 17 of the Registration Act, 1908 (for short, hereinafter referred to as ‘the Act’).

17. As could be seen from Section 49 of the Act, any document which is required to be registered under  Section 17 of the Act shall have no effect on any immovable property nor will it confer any power  to  adopt.

18. Sub-section (c) of Section 49 of the Act bars receiving a document which is not registered  as  evidence, if it is required to be compulsorily registrable under Section 17 of the Act or under the provisions of   the Transfer of property Act.

19. Section 17 of the Act mandates that documents relating to gift of immovable property or non testamentary instruments which create a transfer of interest in an immovable property having a value  of  more than Rs.100/- will have to be compulsorily registrable.

21. However, Sub-section (c) of Section 49 of the Act is subject to the proviso that an unregistered document affecting immovable property and required by the Act or by the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. The said proviso also states that an unregistered document can be received as evidence of any collateral transaction not required to be effected by registered instrument.

22. In other words, an unregistered document which normally cannot be received in evidence  can  nevertheless be received as evidence of any collateral transaction, which by itself, is not required to be effected by way of a registered instrument. To put it differently, if an unregistered document contains two transactions, one of which is required to be effected by means of a registered instrument and another transaction which is not required to be effected by any registered instrument, then the said unregistered instrument can be received as evidence of that collateral transaction. It is  therefore clear that only to this limited extent, an unregistered instrument can be received in evidence i.e., to evidence   a collateral transaction which by itself is not required to be effected by a registered instrument.

26. In my view, since the sub-section (c) of Section 49 of the Act and its proviso consciously uses the phrase ”evidence of any transaction affecting such property” and “evidence of any collateral transaction not required to be effected by registered instrument” it will have to be held that the only possible interpretation is that an unregistered document can be received as evidence in respect of any other fact which does not involve a  transfer of property (which would otherwise require registration    compulsorily).        In other words, an unregistered document can be received as evidence of some other fact which does not relate to a transfer of an interest in an immovable property.

28. Thus, if an unregistered instrument is to be  received in evidence, then, the document  can  be received in evidence only for the limited extent  of  proving a transaction or a fact which does not relate to a transfer of an interest in an immovable property.

29. I may, however, add that the Court, while receiving the said unregistered document would have to  necessarily specify that the document was  being  received only for the purpose of proving some other fact which was unrelated to the transfer of interest in an immovable property and the Court should specifically mark only that portion of the unregistered document and also specify the purpose for which it was being marked. The Court should also specifically record that the document cannot and should not be used as proof of anything connected to the transfer of an immovable property.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Ganesh Rao vs Sumana K and another. RPFC 22/2016 decided on 23 September 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343536/1/RPFC22-16-23-09-2020.pdf

Relevant portion: It is perhaps well to observe that the proceedings under Section 125 of Cr.P.C is summary in nature. In a proceeding under Section 125 of Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into.

I would observe, further, that a normal healthy person, may be fairly educated, is presumed to be capable of earning. The presumption does not extend to conclude that such earning would be sufficient to maintain such a person.

The object of Section 24 of the Hindu Marriage Act, 1955, is to enable the husband or the wife, as the case may be, who has no independent income sufficient for his or her support and the necessary expenses of any proceeding under the Hindu Marriage Act to obtain maintenance and expenses pendente lite. The proceedings under Section 24 of the Hindu Marriage Act are summary in nature. Its object is ad hoc and duration is temporary. It is not necessary to record evidence. Moreover, Sections 24, 25 of the Hindu Marriage Act and Section 18 of the Hindu Adoption and Maintenance Act, 1956, do not stand in the way of a Magistrate granting relief under Section 125 of the Cr.P.C. Section 24 of the Act is not Pari materia with Section 125 of the Cr.P.C.

It is perhaps well to observe that that Section 125 of Cr.P.C is the measure of social justice and is specially enacted to protect women and children and falls within  the   constitutional   sweep   of   Article   15(3)  re-in forced by Article 39 of the Constitution.

It will not be out of context to observe further that under Hindu Law, the maintenance of a wife by her husband is, of course, a matter of personal obligation which attaches from the moment of marriage. From the date of marriage, her home is necessarily in her husband’s home. He is bound to maintain her. The doctrine of maintenance of a wife can be traced to the smritis, and the principal Hindu commentaries upon them. These texts enjoin a mandatory duty upon the husband to maintain his wife. It imposes a personal obligation on him enforceable by the sovereign or state.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Anjanappa and another vs United India Insurance Company Ltd and others. Writ Petition 6098/2014 decided on 8 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346289/1/WP6098-14-08-10-2020.pdf

Relevant Paragraphs: 7. Chapter XII of MV Act, 1988 deals with Claims Tribunals. Section 166 relates to Application for Compensation and Section 173 relates to Appeals. There is no provision of review. Even though some of the provisions of the Code of Civil Procedure, 1908 is provided however, Order XLVII Rule 1 of CPC is not reflected in Rule 254. Therefore, one has to draw inference that MACT has no power to review its own order.

9,10,11 Union of India Vs. Smt.Shamim and others reported in 2009 ACJ (4) 2785, Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and  others  reported in 2009 ACJ (1) 276, D.P.Sharma Vs. State Transport Authority reported in  the  ILR  1987 KAR 3255, Naresh Kumar and Others Vs. Government (NCT of  Delhi)  reported in (2019) 9 SCC, (2007) 5 SCC 85 in the case of Kunwar Pal Singh (Dead) BY LRs. v. State of U.P. and  Others. 416 referred to.

12. Therefore in the absence of any provision to review judgment and award, MACT has erred in reviewing its own judgment and award.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

M. Suresh vs Mahadevamma and others. Regular First Appeal 1560/2011 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347178/1/RFA1560-11-23-10-2020.pdf

Relevant Paragraphs: 20. The Specific Relief Act, 1963 (‘Act’ for short) has been amended by the Specific Relief (Amendment) Act, 2018 by Act No.18 of 2018, whereby Section 20 of the Act has been substituted inter alia doing away with the wider discretion of the Courts to grant specific performance introducing substituted performance of contract. In terms of the amended Act, the  concept of the jurisdiction to decree specific performance, which was discretionary, is no more available to the cases seeking relief for the breach of contracts etc., The old Section 20 of the Act has been substituted by the new amended Section 20 by Act No.18 of 2018 with effect from 01.10.2018 vide SO  4888(E)  dated  19.09.2018. 

22.The effect of the phrase ‘substitution’ has been subjected to judicial scrutiny in catena of judgments  of  the  Hon’ble  Apex  Court  and  this  Court. The same is collated to analyze the effect of the Amendment Act 18 of 2018 by way of substitution with effect from 01.10.2018, in particular to decide whether the amended Act is applicable to the pending matters.

23, 24. 25, 26, 27, 29, 30, 31 Judgments in Shamrao V. Parulekar  vs.  District  Magistrate, Thana, Bombay AIR 1952 SC 324, C. Gupta Vs. Glaxo-Smithkline Pharamaceuticals Limited (2007) 7 SCC 171, Shyam  Sunder  and  others  vs.  Ram Kumar   and   another (2001) 8 SCC 24, Govardhan M vs. State of Karnataka and Others (2013) 1 Kant LJ 437, Adhunik Steels Ltd., vs. Orissa ManganeseandMinerals(P)Ltd (2007) 7 SCC 125, Ferrodous Estates (Pvt.) Ltd., vs. P. Gopirathnam(dead)and others Civil Appeal No.13516/2015 (D.D. 12.10.2020), Girdhar Das Anandji and another vs. Jivaraj Madhavji Patel and others 1970 SCC Online Patna 10, Moulvi Hossain Mian vs. Raj Kumar Haldar AIR 1943 Calcutta 417, State of Punjab vs. Mohar Singh (1955) 1 SCR 893 referred to.

33. In the light of the aforesaid judgments, it is clear that ordinarily, the effect of amendment by ‘substitution’  is  that,  the  substituted  provision  stands repealed and the amended provision is substituted in the place of earlier provision from the date of inception of the enactment, but it is not absolutely applicable in all circumstances. If the amendment Act expressly specifies that the substituted provision shall come into force from a particular date subsequent to the date of amendment/the date the amendment come into force, the said amendment is prospective in nature notwithstanding such amendment is by way of ‘substitution’.   The   intention   of   the   legislature   being clear, no retrospective effect could be given from the date of inception of the statute. There may not be any cavil on this legal proposition relating  to  substantial law. It is well settled that the interpretation  of provisions must depend on the text and context. The  real intention of the legislature has to be gathered from the text and context. The amendment Act contemplates that  the  said  amendment  by  way  of  ‘substitution’  would come into force on such day the Central  Government may, by Notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act, 1st October 2018 is the date appointed for the amended provisions to come into effect.

35. Accordingly, we are of the view that Section 6 of the General Clauses Act, 1897 would apply to the case on hand. As discussed earlier, the right or privilege accrued to the defendant/s under the unamended Act is a substantive right. Indisputably, such rights/privileges vested with the defendants at the time of breach of contract alleged, while filing the suit. Appeal is continuation of original suit. Thus, in our considered opinion, amendment to Section 20 being prospective in nature enforceable with effect from 01.10.2018, the same is not applicable to the pending proceedings governed and continued under the unamended provisions.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Arshad Ispat and Others vs Union of India and others. Writ Appeal 395/2020 decided on 10 July 2020. Author Justice M. Nagaprasanna.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/335508/1/WA395-20-10-07-2020.pdf

Relevant paragraphs: 13. …..Jurisdiction of the High Court under Article 226 is always equitable and discretionary. In this appeal, we are testing an order made in exercise of discretionary jurisdiction under Article 226. Therefore, the conduct of the appellants who invoked the discretionary jurisdiction under Article 226 is very relevant.

18. If the prayers sought in writ petition Nos.9687- 89/2017 are juxtaposed with the prayers sought in W.P. No.51184/2017, it becomes unmistakably clear that the reliefs sought in both the writ petitions were substantially the same. In the garb of raising a challenge to the constitutional validity of Section 6(c) of the Amendment Act of 2012, the relief sought was to quash the order of the District Magistrate dated 16^th October 2017 and confirmation of sale in favour of 6^th respondent dated 24^th August 2016. The prayer (d) in earlier W.P.Nos.9687-89/2017    and   the   prayer   (a)   in   the   later W.P.No.51184/2017 are one and the same.

20. The Amendment Act of 2012 was promulgated on 3^rd January 2013. The 1^st writ petition in W.P.Nos.9687- 89/2017 was filed by the appellants on 2^nd March 2017. This ground of challenge to the constitutional validity of the Amendment Act of 2012 was always available when they filed a writ petition at the earliest point of time.

21. Now, after all the aforestated sequence of events, entertaining this appeal will be opposed to the principles of public policy. It is in the interest of public at large that a finality should attach to the decisions pronounced by the Courts of competent jurisdiction and is also in public interest that none should be vexed twice over the same kind of litigation. Parties should not be permitted to bring fresh litigations because of new views that they may entertain every time. If this were permitted, litigations would have no end except when legal ingenuity is exhausted. The appellants filing another writ petition substantially for the same relief, substantially on the same allegation cannot be permitted, as the previous decision of this Court which has became final cannot be reopened in the present case as the earlier order passed will govern the rights and obligations of the parties.

Writ Appeal Dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal