May 2024 - The Law Literates

25May, 2024

Family Courts Act Section 19 Hindu Marriage Act Section 13(B)(1) Contempt of Courts Act Divorce by Mutual consent Dismissal of Contempt Petition Appellant-husband appealed against the dismissal of his contempt petition for the respondent-wife’s failure to comply with a Memorandum of Understanding (MoU) for mutual divorce

HIGH COURT OF DELHI AT NEW DELHI

VARINDER JEET SINGH vs GURPREET MATAPPFC 89/23 14/09/23

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Family Courts Act Section 19 Hindu Marriage Act Section 13(B)(1) Contempt of Courts Act Divorce by Mutual consent Dismissal of Contempt Petition Appellant-husband appealed against the dismissal of his contempt petition for the respondent-wife’s failure to comply with a Memorandum of Understanding (MoU) for mutual divorce – Respondent stated that she needed time to reconsider her decision and _ claimed misrepresentation – Court ruled in favor of the respondent, emphasizing her right to withdraw consent and the lack of contemptuous behavior – Withdrawal of consent by wife at the stage of second motion cannot be termed as contempt of Court.

Relevant Paras

9. It is significant to observe that though the respondent had asserted that her signatures on the MoU were obtained by misrepresentation by the counsel engaged by the appellant during the First Motion, but pertinently not only both the parties appeared before the learned Judge, Family Courts but also reaffirmed the terms of settlement contained in MoU dated 28.09.2020 and also gave their statements accordingly. The custody of the child in compliance of the terms of MoU, was also handed over to the appellant. Moreover, the appellant gave Rs.2 lakhs to the respondent as was agreed in the MoU. In these circumstances, when the terms of the MoU had been duly complied with by the parties and that too, before the learned Judge, Family Courts, it cannot be said that there was any misrepresentation made to the respondent at the time of signing of MoU. As noted above, the terms of settlement are essentially in regard to the payment of Rs.4 lakhs towards all the claims for alimony etc., divorce by mutual consent and the permanent custody of the minor child to be handed over to the appellant/father.

10. In view of the Statute and the observation in the case of Rajat Gupta (supra), the respondent’s withdrawal of consent to come forth for second
motion for divorce by mutual consent cannot be termed as contempt.

12. The learned counsel for the appellant has also relied upon the recent Judgment of learned Single Judge of this Court in Anurag Goel Vs. ChhaviAgarwal decided on 09.08.2023 wherein the wife was held to be guilty of Contempt of Court since she failed to abide by the terms of MoU. However, a perusal of the Judgment shows that the respondent-wife therein had
refused to execute the final version of Gift Deed in favour of the appellant which was one of the terms of MoU entered between them. It was thisconduct of the respondent wherein she refused to abide by the terms of settlement by which she had assumed a civil liability, that was held to be contemptuous and accordingly, was held to be guilty under Contempt of
Courts Act, 1971. Nowhere does the said Judgment gives a finding that the withdrawal of the party to give consent to the Second Motion amounts to contempt. The Judgment is clearly distinguishable on its facts and is not applicable to the present case. The only alleged act of contempt being non-
signing of the Second Motion petition by one of the party, does not make it a case of contempt as has been held in the case of Rajat Gupta (supra).
13. Before concluding, we may observe that the primary objective of the matrimonial laws, be it under the marriage laws or the Family Courts Act, is
to make sincere endeavour for reconciliation between the parties. Here, the parties mutually entered into a settlement without initiating any divorce
proceedings in the Court. The MoU was submitted by the parties at the time of First Motion. The respondent in her cooling off period after First Motion, has had second thoughts and decided against taking divorce. The approach of the Family Courts being reconciliatory, it cannot compel the parties to
take divorce if not mutually acceptable. Pertinently, the respondent has no inclination to grant divorce since she has already filed a petition under
Section 9 of the Act, 1955 for Restitution of Conjugal Rights and has also filed a Guardianship Petition for seeking permanent custody of the minor.

To read the judgment click here

VARINDER JEET SINGH VERSUS SMT. GURPREET KAUR THE LAW LITERATES JUDGMENT

16May, 2024

Kapil Sibbal has became New President Of Supreme Court Bar Association

Kapil Sibal has won the election for the presidency of the Supreme Court Bar Association (SCBA). This victory marks his return to the position after over two decades. Sibal, a senior advocate and former Union Minister, previously served as SCBA president between 1995 and 2002 . His recent win follows a competitive election against notable candidates, including current SCBA President Adish Aggarwala and other senior advocates

Below are the votes secured by President

Kapil Sibal – 1,066;

Pradeep Kumar Rai – 689;

Adish Aggarwala – 286.

10May, 2024

Amendment of the written statement – Proposed amendment is only to clarify the contents of the gift deed – All these details were known to the defendant, however, the fact remains that she being illiterate and pardanashin lady, was unable to understand the intricacies of the pleadings and the requirement thereof

HASINABI vs MOHMAD SHARIF WP 1608/21 07/03/24

[ JUSTICE B.P. DESHPANDE, J.] [ BOMBAY HIGH COURT]

Amendment of the written statement – Proposed amendment is only to clarify the contents of the gift deed – All these details were known to the defendant, however, the fact remains that she being illiterate and pardanashin lady, was unable to understand the intricacies of the pleadings and the requirement thereof – Application for amendment needs to be bona fide filed and that there should not be any mala fide intention – Proposed amendment would not cause any prejudice to the plaintiff which cannot be compensated adequately in terms of money – Admittedly, the appeal is pending and therefore, it is clear that the defendant is challenging the findings of the Trial Court which referred to absence of pleadings of the gift deed – Petition allowed.

Relevant Paras

25. Thirdly, the proposed amendment would not cause any prejudice to the plaintiff which cannot be compensated adequately in terms of money. Admittedly, the appeal is pending and therefore, it is clear that the defendant is challenging the findings of the Trial Court which referred to absence of pleadings of the gift deed. At the most, by imposing some costs, the plaintiff could be compensated while allowing the amendment application.
26. As against this, by refusing such amendment, it would in fact lead to injustice or to multiple litigation for the simple reason that the plaintiff though referred in the plaint about the gift deed, alleged that it was a false and fabricated document, without challenging it in the suit. Thus, on one hand, the plaintiff asked for declaration of the entries in the Revenue Records as null and void, conveniently avoid to challenge the gift deed as null and void. Thus, the gift deed remains without any declaration which could lead to multiplicity of litigation.

27. The fact remains that the proposed amendment is not changing the nature and the character of the defendant and thus, this aspect is also in favour of the defendant. Finally, the proposed amendment cannot be considered as barred by limitation as the defendant is not seeking any relief by incorporating such defence which is only by way of clarification to her earlier pleadings. It is no doubt true that such amendment has been filed at the appellate stage and therefore, if considered necessary, could be allowed by imposing some costs.
28. In Chakreshwari (supra), the Hon’ble Apex Court in para-16 observed that in appropriate cases the parties are permitted to amend their pleadings at any stage not only during the pendency of trial but also at the first and second appellate stage with leave of Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of parties involved in the lis. Thus, the observations are applicable to the present matter.
29. In the case of Shivshankara (supra), the Hon’ble Apex Court has observed in para-14 that it is settled that while dealing with the prayers for amendment of the pleadings, the Court should not apply hyper technical approach, but at the same time, the Court must keep in mind that such amendment cannot be granted on a mere request specifically at the appellate stage and when the judgment and decree passed by the Court is in appeal. Only in exceptional circumstances and when the amendment is necessary to adjudicate the dispute effectively, could be allowed in rare circumstances.

30. The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected.

For read the judgment click here

Hasinabi Versus Mohammad Sharif the law literates

5May, 2024

Issue with regard to ownership and possession of the suit land, particularly whether the defendant acquired ownership through adverse possession

Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

Specific Relief Act Section 34 – Limitation Act Articles 64 and 65 – Issue with regard to ownership and possession of the suit land, particularly whether the defendant acquired ownership through adverse possession – Plaintiff asserts that the suit land was allotted to her father in a family partition, and she inherited exclusive ownership – Defendant claims to have purchased the land from the plaintiff’s father, Mainee, for a consideration and asserts ownership by way of adverse possession – Plea of adverse possession will not be available to defendant in absence of pleadings and proof regarding denial of title of real owner – Adverse possession was asserted by defendant for first time in September, 2013 – Suit was filed in May 2014 – Statutory period for acquisition of title on adverse possession was not completed – Moreover, title of plaintiff was not in dispute – Plea of adverse possession, not tenable – Furthermore, defendant had claimed to be in possession by way of an agreement to sell – Agreement to sell was not proved – Even agreement does not show that possession was delivered to the defendant pursuant to said agreement – Defendant had no right to retain possession – Order of First Appellate Court in granting decree of possession in favour of plaintiff held, proper.

Relevant Paras

14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
15. Plaintiff Watuli Devi admitted in her cross- examination that an orchard exists over the suit land which has been yielding crops for the last ten years. This orchard was raised by the defendant. It was submitted that the existence of the orchard is not in dispute; therefore, the plaintiff should have valued the suit land on the market value of the orchard. This submission is not acceptable. It was laid down by this Court in Niram Dass vs. Hirda Ram ILR 1975 HP 659 that the raising of the orchard is immaterial to determine the court fee and jurisdiction in a suit for possession of the vacant land. It was observed:
“8. The real question is whether the value of the land alone is to be considered for determining the value of the suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit

refers to the land only and the relief also relates to the land only. The orchard was planted by the petitioner soon after the land was gifted to him. Learned counsel for the petitioner relies on Shanti Prasad vs. Mahabir Singh(A.I.R. 1957 All. 402.), where a Full Bench of the Allahabad High Court has held that although the plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the plaintiff along with the land. In the circumstances, it was laid down that the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out that even if the suit was deemed to be a suit for possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be added to the value of the land in order to determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land, the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of Rule 3 (e). Such a provision is absent in the Act before me. My attention has been drawn to Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh vs. Daut and Ors (A.I.R. 1968-S.C. 612.), but in that case, the definition of land included orchards standing thereon.
9. In Kewal Kishore vs. Hamad Ahmad Khan (A.I.R. 1959 Pun. 181) a Division Bench of the Punjab High Court held that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in such a suit would not depend on the defence which mightbe raised but would be measured by the value of the land alone. In Durga Das vs. Nihal Chand (A.I.R. 1928 Lah. 852.), Jai Lal, J. held that in a suit for declaration, the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the plaintiffs claimed possession of the land and not of the building on the land.
10. It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of Section 7 of the Court Fees Act such an inference is not easily possible. Section 7 (v) speaks separately of land houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly. Where, however, it is a suit for land only, it is the land alone which must be valued.
11. I am of the opinion that in a case such as this, the value of the land for the purposes of court fee and jurisdiction should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.”

19. Thus, the plea that the plaintiff is not the exclusive owner of the suit land and the suit was bad for the non-joinder of other co-owners is not acceptable.
20. The plaintiff was recorded to be the co-owner of the suit land. It was laid down by this Court in Dharam Singh Vs. Jagdish AIR 2005 Himachal Pradesh 10 = 2005(1) Civil Court Cases 823 (HP) that a co-owner can always file a suit for recovery of the possession and such a suit is not bad for non-joinder of other co-owners. It was observed:-
“5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co-sharers is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal,AIR 1970 Patna 1 and it was held that such a suit by a co- sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.R.’s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co- sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. In view of the said ratio, learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff.”

25. A similar view was taken by this court in Sarvi Devi v. Ran Singh, 2012 SCC OnLine HP 8003 : (2012) 114 AIC 460 wherein
“13.In the present case, the respondent came in possession of suit land on the basis of agreement Ex. PA which was executory in nature. On the basis of Ex. PA no suit for specific performance or independent sale-deed was executed in favour of the respondent. The possession of respondent remained permissive since his entry over the suit land was under agreement Ex. PA. The two Courts below have not appreciated this vital question of law which has a bearing on the ultimate result of the case. The respondent in his statement has not stated even a word that he is in adverse possession of the suit land. This clinches point on adverse possession against the respondent. The learned District Judge has noticed Achal Reddy (supra) in the impugned judgment from another Journal, but he has not applied the law laid down by the Supreme Court in Achal Reddy properly. The impugned judgment and decree are not sustainable. The substantial question of law No. 1 is decided in favour of the appellants.”
26. Therefore, the plea of adverse possession will not be available to the defendant in the absence of the pleadings and proof regarding the denial of the title of the real owner.

_*Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

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Banka Dei (since deceased) through her LRs Versus Watuli Devi Court Judgment The Law Literates