Insurance company not liable when vehicle is driven by unauthorized driver

Motor Vehicle Accident  Petition - Sec. 165, 168, 174, 149(2) of The Motor Vehicle Act - Accident by unauthorized driver - breach of policy - liability of Insurance Company

   Mere producing of valid insurance certificate, in respect of offending truck is not enough for the owner to make insurance company liable to discharge liability arising from rash and negligent driving by the driver of the vehicle. The insurance company can be fastened with the liability on the basis of the valid insurance policy only after basic facts are pleaded and established that the vehicle was not only duly insured but also that it was driven by anauthorized person having a valid driving license. The insurance company would become liable only after such foundational facts are pleaded and proved by the other side.

Photocopy of documents can not be impounded by civil court

Suit for eviction of tenant - tenant in his evidence produced photocopy of rent agreement - Landlord denied the same and objected - notice to produce the document was issued, but, landlord denied the very existence of rent agreement - document is not exhibited - Appellate court  impounded the photocopy of agreement to the payment of requisite stamp duty and penalty thereon and further ordered that after payment of the requisite stamp duty and penalty on the said document it be exhibited for the collateral purpose.

   Section 2(l) of the said Act, defines "instrument" and it reads as follows :

"instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;"

   A perusal of the said definition makes it clear that an "instrument" under the said Act is a document by which any right or liability is created or extinguished. Such a document would necessarily be the original of the said document and in this context, when Section 32(A) of the said Act is perused, it refers to "instrument" of conveyance, exchange, gift, etc. In a situation, where there is a short fall in payment of stamp duty, the Collector of the District has to give the parties concerned a reasonable opportunity of being heard and then determine the difference of amount of duty payable along with penalty and on payment of such amounts, "instrument" received shall be returned to the officer or the person concerned.

Better financial resources of a parent, though relevant, cannot act as sole criteria for determining the claim of the custody of the child

While considering the claim of custody of a child, the Court acts in parens patriae jurisdiction and is to be governed solely by the consideration of the welfare of the child. In claim of custody of a child, the claim of Guardianship under Section 6 of the Act or better financial resources of a parent or lack of any adverse material against a parent or the fact that the parent truly loves the child and has the welfare of the child in mind, though relevant, cannot act as sole criteria for determining the welfare of the child and consequently the claim of the custody of the child.[Para No.18]

No bar of res judicata to second suit for eviction of tenant

Landlord filed suit for eviction on the grounds of bona fide requirement, erection of unauthorized permanent structures, change of user, and unlawful subletting - Suit dismissed - Appeal  was also unsuccessful - After less than three months, the landlord issued a "notice for possession" to the tenant and again filed second suit for eviction on the grounds of bona fide requirement, arrears of rent, and permanent construction on the suit premises

Is the second suit stand barred by res judicata and Section  12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act")?

True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.[Para No.54]

   Default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action.

Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action.

Third party objector to execution of eviction decree, shall pay the arrears and rent to the landlord

   Eviction Suit - Decreed in favour of Landlord - Execution proceeding - Third party, who has been a witness in the original suit, obstructed execution under order 21 Rule 97 of C.P.C. - Such obstruction pertition dismissed - Appeal - Judgment Debtor Tenant directed to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive.

The Court cannot go behind the language of the statute so as to add or subtract a word

   The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate. [Para No.43] 

Rule of natural justice need not be observed where fraud or misrepresentation is played

Petitioner was appointed as Distributor of LPG - Submission of "Residence Certificate" was essential eligibility criteria for awarding the distributorship - Distributorship awarded to him -  Unfettered power to the Oil Company were given in the Dealership Agreement for termination, in case, any information found to be untrue or incorrect - Upon a complaint made by one of the unsuccessful complainants it was discovered that the furnished "Residential Certificate" to be false and incorrect - Oil Company, without issuing show cause notice terminated his distributorship. Therefore he claimed that absence of show-cause notice tantamount to absence of the opportunity of being heard and hence termination hits the soul of justice violating Article 14 of the Constitution of India and on this ground alone the said termination letter deserves to be quashed.

Held:

   A Contract is like a written form of the law or like a private legislation that legally binds the parties, hence the aforementioned clause derives utmost sanctity from the agreement. The doctrine of 'Pacta sunt servinda' governs the contractual relationship and the clauses of the contract are the law between the parties. This doctrine presupposes strict compliance of the terms enumerated in the termination clauses of the agreement, otherwise it destroys the sanctity of the contract and eludes the future performance. [Para No.17]

   Fraud and justice cannot go together. It is a settled law that "Fraud" vitiates every solemn act. In Lazarus Estate Ltd. v. Beasley, Lord Denning observed "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud "vitiates all transactions known to the law of however high a degree of solemnity.

Scope of powers of remand by Appellate Court under Rules 23, 23A and 24 of Order 41 of C.P.C.

A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.

Remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court. [Para No.25.4]

Principles governing the proof of a Will

As per Section 63 of the Succession Act, inter alia, requires that the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution.

    A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring.

     The propounder has to prove the legality of execution of the Will as also the genuineness thereof by proving the testamentary capacity of the testator as also his signatures and further by proving absence of suspicious circumstances.

    When there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.[Para No.10.3]

Principles governing the adjudicatory process concerning proof of a Will could be broadly summarized as follows:–

• 1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 
•  2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 
•  3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 
•  4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 
•  5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 
• 6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind. 
•  7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 
•  8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
•  In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.

Does Family Court have jurisdiction in respect of dispute where marriage is not solemnized as per law

Love relationship developed between Male petitioner and female respondent belonging to different cast. They without actually performing marriage secured a false certificate from an institution indicating that they have solemnized the marriage. On the basis of such certificate they obtained marriage certificate from Municipal Corporation. After disclosure to their respective families FIR for the offences punishable under Sections 464, 465, 466, 468, 471 read with 34 of the Indian Penal Code as well as for the offence punishable under the Maharashtra Regulations of Marriage Bureau and Registration Act, 1998 came to be registered.

 Applicant-male filed petition in Family Court for seeking declaration that he is unmarried and that the marriage certificate to be null and void. The prayer is not objected by Respondent-female; still Family Court  observed that the jurisdiction of Family Court can be invoked if someone is married as per law and dismissed that petition on the ground ground that it lacks jurisdiction to entertain the petition.

Held:

   Conjoint reading of sections 7 and 8 of the Family Courts Act makes it clear that the jurisdictions covered under section 7 of the Act are excluded from the purview of jurisdiction of civil court.

Can adverse inference be drawn against prosecution for non examination of Investigating Officer?

The investigating officer was not brought before the Court for the reasons best known to it.

Thus, the defence was deprived of the opportunity of proving this material omission for want of presence of investigating officer. In such a situation an adverse inference must be drawn against the prosecution.

Plea of adverse possession without admitting ownership of real owner is not tenable

In law there is presumption in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse. Furthermore, the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latter's title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. [Para No.37]

   The question of adverse possession without admitting the title of the real owner is not tenable.[Para No.41]

How to prove a WILL?

At least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator.

    Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. [Para No.23]

Every procedure is permitted to the court for doing justice unless expressly prohibited

Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application.

Burdon of proof is on the party who claims the property to be joint property of Hindu Undivided Family

The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same.[Para No.10]

It is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. [Para No.19]