Court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused

In the Supreme Court's case relied upon by both the Advocates it has been held as under :--

"The adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to all the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses."

"We may go further than Lord Denning and say that it is the duty of a Judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (section 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose caption is the Judge. The Judge, like the conductor of a choir, must, by force of personality, induce his team to work in harmony: subdue the raucous, encourage the timid, conspire with the young, fatter the old."

"The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding Judge. The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him.In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring, we may say. The principle of fair trial was abandoned. We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it impossible to accept any portion of the evidence of P.Ws. 8 and 9, the two alleged eye witnesses."

It is clear that even though the Court is not supposed to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence, and even though the Court is not supposed to be silent spectator to the examination-in-chief or cross examination,

the court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused.[Para No.8]

    It is true that u/s 165 of the Evidence Act ample powers have been given to the Court to have effective and proper control over the trial and Court can ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use.

For proving the offence of forgery u/s.465 of IPC, it must be proved as to who did it

To prove the offence of criminal conspiracy punishable under Section 120B, IPC, it is settled that a person cannot enter into a conspiracy with himself. In this case, the other two accused stands acquitted and were not convicted, and judgment of their acquittal has attained finality. [Para No.23]

    A perusal of the evidence proved by the prosecution does not prove the entrustment of the money to the convict. A person can misappropriate only that amount that is entrusted to him. Thus, to make out an offence punishable under Section 408, IPC, the foremost requirement is to prove that the property was entrusted to such person. However, there is not even an iota of evidence to prove the entrustment of alleged money to the convict-petitioner. [Para No.24]

    To prove the offence of forgery punishable under Section 465, IPC, in the counter-foils which

were retained with the company, tampering had taken place, and after that, none had rechecked it. Secondly, to prove such forgery, it was essential to prove that who did it, but, in this case, handwriting specimen is not legally admissible. [Para No.25]

    The counterfoils which the company retained are not proved to be tampered with by the petitioner. Consequently, the ingredients of Section 471, IPC, are also not made out. [Para No.26]

voluntary presents given at or before or after the marriage to the bride or the bridegroom, out of love and affection is not dowry

It is needless to say that in a case of cruelty and dowry death, direct evidence is hardly available. It is the circumstantial evidence and the conduct of the accused persons which are to be taken into consideration for adjudicating upon the truthfulness or otherwise of the prosecution case. In the instant case it is alleged in the FIR that the mother-in-law of the deceased (appellant No.2) used to abuse the deceased with filthy language as her father failed to give a gold chain at the time of marriage. The defacto complainant also alleged that the husband of the deceased (appellant No.1) used to assault her physically. It is not disputed that the witnesses on behalf of the prosecution did not see the occurrence. Allegation of cruelty and unnatural death of the deceased was made by the defacto complainant only after the death of the deceased. It is important to note that the defacto complainant did not state in the FIR as well as in course of his evidence that the accused persons demanded dowry as a consequence of marriage. The definition of the expression "dowry" contained in Section 2 of the Dowry Prohibition Act, 1961 cannot be applied merely to the "demand" of money, property or valuable security made at or after the performance of marriage.[Para No.23]

    The legislature has in its wisdom while providing for the definition of "dowry" emphasized that any money, property or valuable security given, as a consideration for marriage, before, at or after the marriage would be covered by the expression "dowry" and this definition as contained in Section 2 has to be read wherever the expression "dowry" occurs in the Act.[Para No.24]

    Under Section 4 of the Act, mere demand of dowry is not sufficient to bring home the offence to an accused. Thus, any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fail within the mischief of "dowry" under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage. Dowry as a quid pro quo for marriage is prohibited and not the giving of traditional

presents to the bride or the bride groom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression 'dowry' made punishable under the Act. The decision of the Hon'ble Supreme Court in the case of S. Gopal Reddy vs. State of Andhra Pradesh reported in AIR 1996 SC 2084 may be relied on in support of the above observation.[Para No.25]

Continuous and consensual sex between two adults cannot be considered as Rape

Upon considering the arguments and on perusal of the records, it goes to show that admittedly the victim and petitioner are major and they are Central Government employees. The petitioner is working as Superintendent of Central GST, West Commissionerate, Banashankari, Bangalore and the victim is working at the Office of the Central GST, East Commissionerate, Domlur, Bangalore. The introduction of the victim and the petitioner was in the year 2013 and the sexual assault started in the year 2014 at Bangalore. Thereafter till 2018 it was continued in Shivamogga and other various places. But the victim had not complained against the petitioner for having sexual abuse on her earlier. Learned counsel for the petitioner brought to the notice of this Court and relied upon the various judgments of the Supreme Court in the case of Pramod Suryabhan Pawar Versus The State of Maharashtra and Anr. and in the case of SIDDHARAM SATLINGAPPA MHETRE v. STATE OF MAHARASHTRA in respect of the principles for granting Anticipatory Bail. He also submitted that wife of the petitioner lodged a complaint against the very victim on 31.01.2019 at Kodigehalli Police Station. The victim was summoned by the police and she has given statement to the police she has never stated anything about sexual harassment on her by the petitioner and she gave a reply on 01.02.2019. The petitioner has also given a complaint to the Commercial Street Police on 30.10.2020 for making false allegations on him that he has cheated an amount even though the amount was refunded.[Para No.7]

    On perusal of the records, admittedly the petitioner alleged to have been sexually assault on the victim, of course with consent as both of them are major and officers of the Central Government. Though the victim came to know about the marital status of the petitioner before 2018 itself, but no complaint has been lodged by her either for cheating or for sexual assault on her. Even in the complaint she has stated that she has filed complaint against one Anthony Raj for sexual assault on her in the working place. On enquiry also she has stated that she has not lodged any complaint against this petitioner through out 2014 to 2018. On perusal of entire records, it appears, both, the petitioner and victim had sexual affairs with consent and it cannot be considered as rape as per the decision of Section 375 of the IPC

when both adults having continuous consensual sex which cannot be considered as Rape. This Court will not going to the other contention regarding sexual assault on the woman in work place and conducting an Departmental enquiry. The recent judgment of the Hon'ble Supreme Court Journalist Varun Hiremath vs. State of Delhi, where the Supreme Court has held that if the man and woman are in room, man makes a request and woman complies and it is stated no need to say anything more and for cancellation of the bail granted to the journalist has been dismissed by the Hon'ble Supreme Court.[Para No.8]

After lapse of previous rent agreement if fresh rent agreement is not created, then the landlord can recover last payable rent but not the enhanced rent

The finding by both the learned Courts below on issue no.3 has been taken up for examination. In this regard, at the outset it must be seen that how far the Agreement for House Rent dated 29.02.2000 (Ext.3, also marked as Ext.D) can be read to determine the quantum of monthly rent for which the petitioner and proforma respondent no.2 had committed default, if there be any. In this regard, as per the provisions of Section 17(d) of the Registration Act, 1908 it is provided that leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is required to be compulsorily registered. The consequences of non registration is prescribed in Section 49(c) of the said Act, which provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. However, as per the proviso appended thereto, such document may be received as evidence of any collateral transaction not required to be effected by registered instrument. Therefore, when both the Courts below were examining the issue of rent payable after 01.03.2003, there was no written agreement in existence commencing from 01.03.2003. However, the rent payable during the tenure of the agreement was the purpose of agreement, as such, for the purpose of the quantum of the

rent payable for the period commencing from 01.03.2003 onwards, the said rent agreement (Ext.3, also exhibited as Ext.D) cannot be read in evidence. After 28.02.2003, the petitioner and respondent no.2 were holding the status of statutory tenant. In view of the discussions above, the evidence to the effect that as per the terms of Ext.3/Ext.D, the rent last payable under the said agreement was Rs.2,640/- per month.[Para No.22]

Misuse and or abuse of powers by public servant is not a part of their official duties so no protection u/s.197 of CrPC is available

If the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C.

    In the light of the principles laid down in the judgment referred supra, this Court has to analyse the materials on record. I have already pointed out that the complainant's son was detained in illegal custody for a period of 2 days is not in dispute and also he was summoned to enquire is also not in dispute. It is also to be noted that I have already pointed out the medical evidence with regard to the fact that he was subjected to physical torture and document of Ex.P.28 is clear that he was subjected to man handling and as a result, he took treatment at Janatha Nursing Home. It is also important to note that on account of said humiliation, he took the extreme step of committing suicide as he was tortured, assaulted and detained in illegal custody for a period of 2 days in the police station. It is also apparent prima facie on record that departmental enquiry was conducted and at the fist instance the report was given against these petitioners vide report dated 25.06.2010 and the same would prima facie discloses that the police had excesses their powers. It is also not in dispute that ultimately the son of the complainant was not arraigned as an accused in the said case. It is also not in dispute that the very complainant in the said chain snatching case, has not identified the son of the complainant and there are no criminal antecedents against him. When such being the case, the protection envisaged under Section 197 of Cr.P.C. or Section 170 of KP Act cannot be extended to the petitioners herein.[Para No.27]

    Learned Magistrate, in detail considered the statement of witnesses, who have been examined i.e., 7 in number and also while passing a detailed order, assigned the reasons. Learned Revisional Judge also examined the legal aspect and also the factual aspect of the case and passed a detailed reasoned order and comes to the conclusion that there is no merit in the revision. The Court also while issuing the process against the petitioners herein considered the sworn statement as well as allegations made in the complaint and has rightly come to the conclusion that it is a fit case to proceed against the petitioners herein[Para No.28]

    This Court also would like to refer to the judgment of the Apex Court in the case of Choudhury Parveen Sultana v. State of West Bengal and Another reported in (2009) 2 SCC (Cri) 122 regarding Section 197 of Cr.P.C, wherein the object, nature and scope of Section 97 of Cr.P.C. has been reiterated. Wherein it is held that all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 of Cr.P.C. Further, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of Section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C.

and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.[Para No.29]

When counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter

Every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities

    In the said backdrop, if the decision in Smt. Garuda Sakuntala (supra), as relied upon by the learned advocate for the appellants - plaintiffs is taken into consideration, it held therein that, 'Past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non- appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed. The Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15.2.1993 only, and not the previous conduct of the appellant. Hence, the contention of the counsel for respondents, that in view of the previous conduct of the appellant in not attending the court the lower court is right in dismissing the suit for default, cannot be accepted'. It is further held that, 'Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/plaintiff. When the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the court below to that effect. On this ground also, the order under appeal is liable to be set aside'. The Court has observed that, 'Dismissal of a suit for default of the plaintiff shall always be resorted to by the courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural laws are intended to do substantial justice between the parties and not to penalize the parties'. Thus, as observed in the aforesaid decision, it is the

duty of the Court to issue notice to the party concerned before proceeding further in the matter and before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. In the case on hand also, the learned advocate representing the appellants - plaintiffs did not remain present as not keeping well and eventually, the suit came to be dismissed for default, however, no prior notice appears to have been issued to the appellants - plaintiffs.[Para No.6.2]

    Adverting to the facts of the present case, the learned trial Judge has dismissed the suit for default for want of prosecution and by way of impugned order, also dismissed the application for restoration of the said suit. It was the case of the appellants - plaintiffs that since the learned advocate representing the case of the appellants - plaintiffs before the trial Court was not keeping well, he did not remain present before the Court on the date so appointed, however, the learned trial Judge did not appreciate the said fact and considering the past conduct viz. non- appearance of appellants - plaintiffs dismissed the suit for default observing that the suit is aged 10 years. It is settled law as reflected in the decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, indisputably, the learned trial Judge has taken into consideration the past conduct of the appellants - plaintiffs while dismissing the suit for default and admittedly, no prior notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect.[Para No.6.5]

Cr.P.C. does not provide any provision for service of summons through Whatsapp

Going by Section 65 of Cr.P.C, if service could not be effected as provided under Section 62, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides. Thereafter, the court should make such enquiries as it thinks fit and either declare the summons to have been duly served or order fresh service in such manner as it considers proper. As per Rule 7 of the Criminal Rules of Practice, Kerala, summons issued to the accused and witnesses shall ordinarily be signed by the Chief Ministerial Officer of the Court and the words “By order of the Court” shall invariably be prefixed to the signature of the Ministerial Officer. [Para No.3]

    The above provisions do not provide for service of summons through WhatsApp.

No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be pertinent to note the insertion of Section 144 in the Negotiable Instruments Act (for short, 'the Act') for the purpose of overcoming the delay in serving summons on the accused in complaints under Section 138 of the Act. Section 144, providing for service of summons by speed post or by approved courier service, was inserted by Act 55 of 2002.[Para No.4]

Judicial discretion cannot be so liberally exercised as to condone the delay where no cause is made out or the cause ascribed is unworthy of acceptance

The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one

    A profitable reference in this context can be made to a judgment of the Supreme Court in the case of Balwant Singh (dead) Vs. Jagdish Singh and others, 2010(8) Supreme Court Cases 685, wherein after adverting to a number of precedents, including the judgment in the case of Perumon Bhagwathy Devaswom (supra), the Supreme Court cautioned against construing the provisions of the Order XXII of the Code and Section 5 of the Limitation Act in such a manner as to render them redundant and inoperative.[Para No.17]

    The observations of the Supreme Court in paragraphs 32 to 35 and 38 are instructive. They read asunder:

“32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.

    Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.

34. Liberal construction of the expression ‘sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect “sufficient cause” as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition 1997).

35. The expression “sufficient cause” implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.

36…………………………………………………………….

37…………………………………………………………….

38. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this,the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The 

statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.”[Para No.18]

No contract employee has any vested right to continue or to have his or her contract renewed

From the aforesaid observations which have been made by the Apex Court on the status of honorary employment in the service, it appears to this Court that it is not open for the petitioner to claim any relief, as tried to be sought in the present proceedings. Since throughout has accepted the status as honorary Medical Officer purely on contractual basis with open eyes and continued to discharge without any demur and throughout even during the extended period of his contract, the basic terms and conditions have remained unchanged. That being the position, it appears to this Court that hardly any case is made out by the petitioner to call for any interference to grant any relief as prayed for.[Para No.14]

    Additionally, it is a settled position of law that the contractual employment has no any vested right to continue

nor normally it is open for the Court to give any mandate to an employer to continue the contract or to change the status of the contractual employment in any manner. Once the same having been accepted by consent of both the sides without any demur and as such, the relevant observations contained in the following decisions of the Apex Court with regard to the status of even contractual employment, the Court would like to incorporate hereunder some of the relevant observations mentioned in the following decisions:

(1) In the case of Yogesh Mahajan Vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, reported in (2018) 3 SCC 218, Hon'ble the Apex Court has observed in para 6,7 and 8 as under:

6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.

7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.

8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so.

Even illegally obtained document is admissible in evidence if it is relevant and genuine one

The complaint was initially made in respect of acquiring huge immovable properties by respondent No. 2 in his name and in the name of his wife, and the Central Government had asked the State Government to conduct an inquiry into the said allegations. The complaint may be forged or fabricated, but it is nobody’s case that the copies of sale deeds annexed alongwith the said complaint were not genuine. While issuing direction to hold inquiry/investigation as to who had fabricated the said complaint and forged the signatures of Shri M.A. Khan, M.P., the allegations of acquiring properties by the respondent No.2 have been abandoned and unattended altogether.

    Even though the complaint was bogus, however, the sale deeds annexed alongwith the same though illegally collected by someone, have not been found to be fabricated documents.[Para No.26]

    It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant

and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).[Para No.27]

Non-production/withholding a vital document in order to gain an advantage on the other side tantamounts to playing fraud on the Court

No litigant is entitled to obtain the aid of the law to protect him in carrying out a fraudulent act

    The most sagacious judgments of our Courts define "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a sort of cheating intended to gain an advantage. Any litigant who approaches Court is bound to produce all the documents relevant, material and germane to the litigation. Non-production or non-mentioning or withholding a vital document in order to gain an advantage on the other side

tantamounts to playing fraud on the Court as well as the opposite party [S.P. Chengalvaraya Naidu vs. Jagannath & Ors (1994) 1 SCC 1 (paras-1,5 & 6), A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. (2007) 4 SCC 221 (paras 21-33), K.D. Sharma vs. Steel Authority of India & Ors. (2008) 12 SCC 481 (paras-26-28 & 34-52) and Dalip Singh vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114 (paras 1- 9)].[Para No.12]

    This fact of suppression assumes more significance in a writ proceeding which has been instituted under Article 226 of the Constitution. The very basis of writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted the very functioning of the Writ Courts would become impossible. The jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. It is well settled that a prerogative remedy is not a matter of course and it is thus of utmost importance that a petitioner approaching the Writ Court must come with clean hands and put forward all the material facts without concealment or suppression. It there is no frank and candid disclosure of the relevant and material facts or that the petitioner is guilty of misleading the Court and the petition is liable to be dismissed. In fact, the Courts have gone to the extent of saying that in such circumstances, a Court may refuse to enter into the merits of the case. A party whose hands are soiled cannot hold the writ of the Court. In such situations, the aid of the Court is denied in order to maintain respect for the law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination (Miscellany-at-Law by R.E. Megarry, 2nd Indian Reprint 2004 at page-144). The rule has evolved in public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. In the facts and circumstances aforesaid and in the light of the prayers in the petition, I am of the view that the petitioners are guilty of misleading the Court and have deliberately, intentionally and mischievously suppressed the order dated 28 January, 2011 passed in Misc. Case No.26/2009.[Para No.13]

Testamentary disposition by Will is not a 'transfer' as defined u/s.5 of the Transfer of Property Act

It is not necessary to obtain a probate in respect of properties which are not situated whithin the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay

    In view of the rival submissions made on behalf of the parties, it will be necessary to refer to some of the provisions of the Ceiling Act and the Succession Act. Section 29 of the Ceiling Act reads thus:-

"Section 29. (1) Without the previous sanction of the Collector, no land granted under Section 27 or granted to a joint farming society under Section 28 shall be -

(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any competent authority) or by way of gift, mortgage, exchange, lease or otherwise; or

(b) divided whether by partition or otherwise, and whether by a decree or order of a Civil Court or any other competent authority, such sanction shall not be given otherwise than in such circumstances, and on such conditions including condition regarding payment of premium or nazarana to the State Government, as may be prescribed;

    Provided that, no such sanction shall be necessary where land is to be leased by a serving member of the armed forces or where the land is to be mortgaged as provided in Sub-section (4) of Section 36 of the Code for raising a loan for effecting any improvement of such land.

(2) If sanction is given by the Collector to any transfer or division under Sub-section (1) subsequent transfer or division of land shall also be subject to the provisions of Sub-section (1).

(3) Any transfer or division of land, any acquisition thereof, in contravention of Sub-section (1) or Sub-section (2) shall be invalid; and as a penalty therefor, any right, title and interest of the transferor and transferee in or in relation to such land shall, after giving him an opportunity to show cause, be forfeited by the Collector and shall without further assurance vest in the State Government."

    This Court in the aforesaid case of Vimlabai vs. State of Maharashtra, cited supra, after considering the judgments on the point, has held that the transfers which are by act of parties made inter vivos or a result of a decree or an order of the Court, Tribunal or Authority, are alone covered by the said term as defined in Explanation (2) of Section 8 of the Ceiling Act. This Court has further held that it will not include the testamentary dispositions of the property not made inter vivos. Thus, this Court has taken a view that a testamentary disposition by Will is not covered by the word 'transfer' as per the provisions of Section 5 of the Transfer of Property Act. This Court has further while dealing with the certain provisions of the Ceiling Act has in unequivocal terms held that the transfer under the Ceiling Act would not include the testamentary disposition of the property not made inter vivos. In that view of the matter, insofar as the findings of the learned S. D. O. that the transfer is bad in law in view of provisions of Section 29(3) of the said Act is not sustainable in law.[Para No.6]

    The next question that arises is whether it is necessary to obtain a probate, so as to claim right as executor or legatee for the lands in question.[Para No.7]

    It would be appropriate to refer to certain provisions of the Succession Act. The relevant portion of Section 213 reads as under:-

"S. 213. Right as executor or legatee when established. - (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:

"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion

upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC. Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time

The following can be considered as "appropriate cases" for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :-

1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court;

2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits.

    The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only.

    When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.

3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in mear

proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant;

4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;

5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;

6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;

Signed carbon copy prepared in the same process as the original document assumes the character of the original document

This appeal is directed against the judgment dated 15.01.2009 passed by the Punjab and Haryana High Court dismissing the appeal holding that there is no substantial question of law involved. The High Court held that a carbon copy of a document which carbon copy is signed by both the parties cannot be termed as an original document under Section 62 of the Evidence Act. This finding of the High Court is absolutely incorrect and against the provision of Section 62 of the Evidence Act. This carbon copy was prepared in the

same process as the original document and once it is signed by both the parties, it assumes the character of the original document.[Para No.1]

Availability of civil or arbitral remedy for breach of contract, does not mean that initiation of criminal proceedings will be an abuse of the process

In the matter under consideration, if we try to analyse the guidelines of which a reference has been made, can it be said that the allegations in the complaint/FIR/charge-sheet do not make out a case against the 2nd respondent or do they disclose the ingredients of an offence alleged against the 2nd respondent or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the 2nd respondent.[Para No.29]

   In the instant case, the complaint/FIR/charge-sheet as noticed above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this stage, as noticed above, whether the allegations in the complaint were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. Vs. P. Radhakrishna and Others ought to be noticed. In para 3, this Court observed:-

“3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was

committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.”[Para No.30]

Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions

Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR 282, is also relevant on the point involved in the petition. Note of certain earlier decisions right from Privy Council were taken. In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that ;

"No doubt cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned".[Para No.14]

    In Yeshpal's case (Supra) it has been observed that, "While Courts will not ordinarily interfer with the proper exercise of the right of cross-examination the Courts have the power and authority to control the cross-examination of a witness".

    This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution; but then agree to the submission that the cross- examination need not be restricted to what the witness has stated in his examination-in-chief. A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may 

get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness. On any count learned Additional Sessions Judge will not be justified in entirely putting the shutter down while disallowing of the questions and asking the defence advocate to restrict himself while cross- examining P.W.18 to the post mortem examination report Exhibit 216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore, again clarified that neither the learned advocate for the accused has unfettered right to put any question to the witness in the cross- examination but at the same time the learned Additional Sessions Judge shall also not restrict him in putting questions in the cross to the above referred documents only. There might be certain questions which would be beyond those documents and as an expert they are required to be elucidated from him. No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal's case (Supra), and it is specifically laid down that, it may be advantages for the Appellate Court in future. He has to bear those advantages which have been laid down in para No.15 of the case, in mind while recording the evidence.[Para No.15]

Statement of witness recorded u/s.164 of Cr.P.C. is not substantial evidence

Section 164 of the CrPC , 1973 enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.[Para No.68]

    As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e., in George and others v. State of Kerala and another, AIR 1998 SC 1376:

"In making the above and similar comments the trial Court again ignored a fundamental rule of criminal

jurisprudence that a statement of a witness recorded under S. 164, Cr.P.C. , cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."[Para No.69]

    What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala, AIR 2013 SC 651:

"15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000 Air SCW 3150).

Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day

In Nathi Lal vs State of UP reported in 1990 Supp SCC 145, the Apex Court has succinctly held that the case and counter case should be tried by the same judge one after the other and both the judgments must be pronounced by the same Judge one after the other. Observation of the Apex Court in this regard is as under:

"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other"[Para No.9]

    The same law was reiterated by the Apex Court in Sudhir and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the Apex Court held as under:

"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable,

be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."[Para No.10]

    In the said judgment the Apex Court further held as under:

"12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:

"323.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

Deed of gift/hiba executed by a Mohammadan need not required to be registered

The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift;

such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.[Para No.27]

    Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :

"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."[Para No.28]

Plaint should contain exact details of the specific date, month, year, etc.of creation of the HUF for the first time; mere statement that HUF exists and property belongs to HUF is not sufficient

Reference may again be had to the judgment of a Coordinate Bench of this court in the case of Promod Kumar J ain & Ors. vs. Ram Kali J ain & Ors., (supra) where the court held as follows:-

"13. Reference on the aspect of HUF can be made to:

(i) Neelam Vs. Sada Ram MANU/DE/0322/2013, holding (i) that the Hindu Succession Act, 1956 did away with the concept of ancestral properties as existed prior thereto; after coming into force thereof, the property inherited by a male from his father is held as self-acquired property in which children of such male do not acquire any right by birth; (ii) that the plea of property being a joint family property owing to being jointly owned by members of a family, is not the plea of existence of a coparcenary or HUF; (iii) that HUF and coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same; (iv) that the law of succession, after coming into force of the Hindu Succession Act is governed thereby only; of course Section 6 thereof carves out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act; (v) however in the absence of any plea of existence of any coparcenary, merely on the plea of the property being of the joint family, no inference of a coparcenary arises; (vi) for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF, by virtue of Section 6 of the Act has been permitted to be continued.

(ii) Surender Kumar Vs. Dhani Ram MANU/DE/0126/2016 : AIR 2016 Del 120 holding as under:

"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, MANU/SC/0265/1986 : (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.

7. On the legal position which emerges pre 1956 i.e. before passing of the Hindu Succession Act, 1956 and post 1956 i.e. after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides

that all necessary factual details of the cause of action must be clearly stated.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.

9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.

Agreement of sale signed only by the vendor is valid and enforceable by the purchaser

We find that neither of the two decisions have addressed the real issue and cannot be said to be laying down the correct law. The observation in Md. Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is not correct. An unilateral contract refers to a gratuitous promise where only party makes a promise without a return promise. Unilateral contract is explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts (4th Edition Para 2-10(a) at pages 64-65):

If A says to B, 'If you walk across the Brooklyn Bridge I will pay you $ 100,' A has made a promise but has not asked. B for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no point is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classified as unilateral because only one party is ever under an obligation. All agreements of sale are bilateral contracts as promises are made by both -the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions . of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.[Para No.7]

    The defendant next contended that the agreement of sale in this case (Ex.2) was clearly in a form which required signatures of both vendor and purchaser. It is pointed out that the agreement begins as: "Agreement for sale between Kanika Bose and Parmatma Devi" and not an "Agreement of sale executed by Kanika Bose in favour of Parmatma Devi". Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus: "In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents." It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. We have carefully examined the agreement (Ex.2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer 'subscribe their respective hands and seals'. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention 

of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7.9.1979) by the vendor acknowledging the receipt of Rs. 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10.10.1979 by the vendor, acknowledging the receipt of a further sum of Rs. 2000 and confirming that the total earnest money received was Rs. 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgement thereon on 10.10.1979. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.[Para No.8]