Civil Litigation

​2017-4-LW 523,  2009-5-Ctc 558, 2007-13-Scc 210 and 2014-9-SCC 445

Unilateral cancellation of Deed of  settlement is bad in law and against public policy

Vishwasrao Satwarao Naik & Ors.  Vs  State of Maharashtra (SC) (25-04-2018)

Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption

Shivaji Yallappa Patil Versus Sri Ranajeet Appasaheb Patil & Others (SC) [16-04-2018]

Specific Performance- Section 20– The possibility of injury to the interest of third party does not, by itself, disentitle the plaintiff from specific performance but it depends upon the facts and circumstances of each case which will be considered by the court in the exercise of its discretion. The court may properly exercise discretion to decree specific performance, in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

HARITA SUNIL PARAB VERSUS STATE OF NCT OF DELHI AND OTHERS -SC

Mere inconvenience of the petitioner is not a ground for transfer. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the
prosecution, other accused, the witnesses and the larger interest of the society.

Chhotanben and Anr. v. Kiritbhai Jalkrushnabhai Thakkar and Ors. – Supreme Court (10-04-2018)

The limitation for challenging the Sale Deed is not from the date of Sale Deed, but from the date of knowledge. Further, this kind of question of limitation is a triable issue and the same cannot be dealt in an application under Order 7 Rule 11 of CPC.

DANAMMA @ SUMAN SURPUR & ANR. VERSUS  AMAR & ORS – AIR-2018-SC- 721

Amended Section 6 of Hindu Succession Act will be applicable to pending suits instituted prior to the amendment as the rights have been crystallised in 2005 irrespective of the death of father-coparcener.

Anar Devi & Ors. v. Parmeshwari Devi & Ors. (2006) 8 SCC 656. 

Hindu Succession Act- Sec.6-Explanation 1 defines the expression ‘the interest of the deceased in Mitakshara coparcenary property’ and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs.

PRAKASH & ORS. VERSUS PHULAVATI & ORS- 2016 2 SCC 36

The provisions of Hindu Succession Amendment Act, 2005 are prospective-Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law.

P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725

Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one’s as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.

Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619

The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto.(See Maxwell on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of anyone entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy.

Indira Bai v. Nand Kishore, (1990) 4 SCC 668

The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct.

Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229

The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.

Mangalore Electricity Supply Company Limited Versus  M/s. AMR Power Private Limited & Anr.-2016  AIR(SC) 4397

Withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty.

Vohra Sadikbhai Rajakbhai & Ors. Versus State of Gujarat & Ors. -2016-12-SCC-1

An act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. Generally, those acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated.