unregistered and unsigned will / judgment / Supreme Court of India

 

Supreme Court of India

NARINDER SINGH RAO VS AVM MAHINDER SINGH RAO & ORS.

on 22 March, 2013

Author: ………..……………............J.

Bench: R.M. Lodha, Anil R. Dave

NON-REPORTABLE

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6918-6919 OF 2011

J U D G M E N T

ANIL R. DAVE, J.

1. Being aggrieved by the Judgment delivered in Civil Regular Second Appeal No. 3937 of 2005 and Cross Objection No. 9-C of 2005 dated 21st May, 2010 by the High Court of Punjab & Haryana at Chandigarh, these appeals have been filed by original defendant No.1.

2. The facts giving rise to the appeals in a nutshell are as under: Rao Gajraj Singh and his wife Sumitra Devi were occupiers of the suit property. The property appears to have been constructed somewhere in 1935 and as per the municipal record, it belonged to Rao Gajraj Singh. A document was executed by Rao Gajraj Singh to the effect that upon death of himself or his wife, the suit property would be inherited by the survivor. The said writing was attested by Rao Devender Singh, the son of Rao Gajraj Singh’s real sister.

Rao Gajraj Singh expired on 29th March, 1981 and thereafter Sumitra Devi, who had eight children, started residing at Ranchi with the appellant.

Somewhere in 1980s, Sumitra Devi got constructed some shops in the suit premises and the said shops were given on rent.

On 1st June, 1989, Sumitra Devi executed a Will whereby she bequeathed the suit property to one of her sons, namely, Narinder Singh Rao (the present appellant and original defendant No.1) and she expired on 6th June, 1989.

3. After the death of Sumitra Devi, her four children, one of them being the present respondent No.1, filed a suit for declaration claiming their right in the suit property. Subsequently, the plaint was amended so as to make it a suit for partition. According to the case of the said children, the Will was not genuine and therefore, the said Will could not have been acted upon and as Sumitra Devi was survived by eight children, the suit property would be inherited by all the children. Thus, each child had 1/8th share in the suit property.

4. Even after death of Rao Gajraj Singh, the suit property continued to remain in his name because nobody had got the property mutated in the names of his heirs/legal representatives after his death.

5. The said suit was dismissed and therefore, the original plaintiffs, along with others, preferred an appeal. After hearing the learned advocates and considering the facts of the case, the lower appellate court dismissed the said appeal though allowed the appeal on the question of court fee.

6. Being aggrieved by the judgment delivered by the lower appellate court, original plaintiff No.1 filed a second appeal, being Civil Regular Second Appeal No. 3937 of 2005. On the issue with regard to court fee, cross objection was filed by the present appellant. The said appeal was partly allowed whereas the cross objection was dismissed on 25th May, 2010 and being aggrieved by the judgment delivered in the said appeal, the present appeal has been filed by the appellant, who is original defendant no.1.

7. It is pertinent to note as to how the High Court has decided the Second Appeal and for that purpose let us look at the findings, which are as under:

The ultimate findings arrived at by the court below are to the effect that the writing executed by Rao Gajraj Singh, which stated that upon death of himself or his wife, the suit property would be inherited by the survivor, was neither in the nature of a Will nor in the nature of transfer of the property because the said writing was neither registered as required under the provisions of the Indian Registration Act, 1908 nor was attested by two witnesses as it should have been done, had it been a Will. Thus, the writing executed by Rao Gajraj Singh, in the eyes of law, was only a piece of paper, having no legal effect. Factually also, the said writing was not a Will because it was not attested by two attesting witnesses as is required to be done for execution of a valid Will. It is also a fact that the said writing had not been registered and by virtue of the said writing either complete ownership or share of Rao Gajraj Singh was not transferred to Sumitra Devi, thus, the High Court in its impugned judgment rightly ignored the said writing executed by Rao Gajraj Singh.

8. Upon the death of Rao Gajraj Singh, no mutation entry was made in the Municipal Corporation records to show as to who had inherited the property in question and the said property continued to remain in the name of late Rao Gajraj Singh.

9. By virtue of the Will executed by Sumitra Devi, whereby the property had been bequeathed to the present appellant, the appellant claims complete ownership over the suit property.

10. So far as inheritance of the suit property by the present appellant in pursuance of the Will dated 1st June, 1989 executed by Sumitra Devi is concerned, the finding of the lower appellate court is to the effect that the Will was validly executed by Sumitra Devi, which had been attested by two witnesses, one being an advocate and another being a medical practitioner. Though there was an allegation to the effect that Sumitra Devi was not keeping good health at the time when she had executed the aforesaid Will and she was not having sound and disposing mind at the time of execution of the Will, the said submission made before the courts below was not accepted. Upon appreciation of evidence adduced, it was held that the Will was validly executed and Sumitra Devi was competent to execute the Will which had been duly attested by two competent witnesses. In the circumstances, the courts below came to the conclusion that the Will was validly executed. The question with regard to the state of mind of the testatrix and execution of the Will being a question of fact, the High Court rightly accepted the findings arrived at by the lower appellate court. As the said finding has been accepted by the High Court, in our opinion, even this Court would not re-appreciate the said fact. In the circumstances, so far as the validity of the Will is concerned, it is treated to have been executed properly. The next question which was to be considered by the High Court was with regard to the ownership right of the suit property. The property was in the name of Rao Gajraj Singh and no evidence of whatsoever type was adduced to the effect that the property originally belonged to Sumitra Devi. Looking to the said fact, the findings arrived at by the High Court that the suit property belonged to Rao Gajraj Singh cannot be disturbed. As Rao Gajraj Singh died intestate and was the owner of the property at the time of his death, the suit property should have been inherited by his widow, namely Sumitra Devi and his eight children in equal share, as per the provisions of the Hindu Succession Act, 1956. In that view of the matter, the High Court arrived at the conclusion that the suit property would be inherited by all the 9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi had inherited only 1/9th of the right and interest in the suit property whereas 1/9th of the right and interest in the suit property belonged to each child of Rao Gajraj Singh.

11. Though the Will executed by Sumitra Devi has been treated as a validly executed Will, Sumitra Devi, who had only 1/9th of the right and interest in the suit property, could not have bequeathed more than her interest in the suit property. If Sumitra Devi was not a full-fledged owner of the suit property, she could not have bequeathed the entire suit property to the present appellant- Narinder Singh Rao who has claimed the entire property by virtue of the Will executed by Sumitra Devi. At the most Sumitra Devi could have bequeathed her interest in the property which was to the extent of 1/9th share in the said property. So the High Court rightly came to the conclusion that the 1/9th share in the suit property belonging to Sumitra Devi would be inherited by the present appellant - Narinder Singh Rao by virtue of the Will executed by her. In addition to his own right and interest in the suit property to the extent of 1/9th share, which the present appellant had inherited from his father, the present appellant would get 1/9th share in the suit property as he also inherited share of his mother Sumitra Devi whereas all other children of Rao Gajraj Singh would get 1/9th share each in the suit property. Thus, the present appellant would be having 2/9th share in the suit property.

12. In our opinion, the afore stated findings arrived at by the court below are absolutely just and proper. So far as findings of facts are concerned, the same have been finally decided by the court below and therefore, we would not like to interfere with the findings of the fact.

13. So far as legal issues are concerned, in our opinion, the court below did not make any error while coming to the afore stated conclusions after applying law to the facts of the case.

14. The learned counsel appearing for the parties had made lengthy submissions, however, in our opinion not a single submission made on behalf of the appellant is impressive.

15. On behalf of the appellant, the submissions were made to the effect that the suit property in fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh. The provisions of Benami Transfer (Prohibition) Act, 1988 had been referred to by the learned counsel appearing for the appellant. The question whether the suit property in fact belongs to an individual i.e. whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the afore stated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act, 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.

16. The submissions made with regard to the mental capacity of Sumitra Devi at the time of execution of the Will cannot also be looked into at this stage because the mental capacity of the testator to execute a Will being a question of fact, we would like to accept the findings arrived at by the court below and all allegations with regard to soundness of mind of Sumitra Devi at the time of execution of the Will or allegation with regard to undue influence of the present appellant with whom Sumitra Devi was residing at the time of her death cannot be looked into by this Court as they are the issues pertaining to fact. We, therefore, do not accept the submissions made with regard to validity of the Will executed by Sumitra Devi.

17. As we have come to the conclusion that the Will executed by Sumitra Devi was just and proper, the consequences of the Will would be like this: Rao Gajraj Singh was survived by his eight children and his widow –Sumitra Devi. As Rao Gajraj Singh died intestate, according to the provisions of the Hindu Succession Act, his property would devolve upon all his nine heirs i.e. his widow and eight children. So, everyone would get 1/9th share in the property of Rao Gajraj Singh. Though Sumitra Devi had executed her Will and had bequeathed the entire property in question to the present appellant namely Narinder Singh Rao, Sumitra Devi could not have bequeathed under her Will what she did not own. She was only 1/9th owner of the suit property so she could have bequeathed only her share i.e. 1/9th share in the suit property. As a result of the Will of Sumitra Devi, Narinder Singh Rao - the appellant would not only inherit his own share in the property, which he had inherited from his father Rao Gajraj Singh but he would also inherit share of his mother Sumitra Devi as per her Will. Thus, the present appellant would become the owner of 2/9th share of the suit property. In our opinion the final finding of the High Court that the appellant is the owner of 2/9th share of the suit property is, therefore, absolutely correct.

18. The averments with regard to court fee are not of importance at this stage as looking to the facts of the case, the court below has rightly come to the conclusion that the issue with regard to the court fee was a matter between the litigant filing the suit and the court and the defendants need not have bothered about the same.

19. The learned counsel appearing for both sides have cited several judgments. The propositions laid down in the said judgments cannot be disputed, however, the fact remains that the said judgments do not render any assistance to the appellant in view of the afore stated facts.

20. In view of the findings of fact arrived at by the courts below and the legal position clarified hereinabove and by the High Court, in our opinion, the High Court has committed no error and therefore, we see no reason to interfere with the impugned judgment.

21. For the afore stated reasons, the appeals are dismissed with no order as to costs.

………..……………............J.

(R.M. LODHA)

………..……………............J.

(ANIL R. DAVE)

New Delhi

MARCH 22, 2013.

 

Judgment on nominee and legal heirs - clarification ascertained by the Supreme Court of India

 

Supreme Court of India

Shipra Sengupta vs Mridul Sengupta & Ors on 20 August, 2009

Author: D Bhandari

Bench: Dalveer Bhandari, Mukundakam Sharma

REPORTABLE

 

 

 

IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.809 OF 2002

 

Shipra Sengupta                               .. Appellant

Versus

Mridul Sengupta & Others                       .. Respondents

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 12.9.2000 passed by the High Court of Madhya Pradesh at Jabalpur in Miscellaneous Civil Case No. 1209 of 1998.

2. The appellant is the wife of Late Shri Shyamal Sengupta who was a Head Clerk in the State Bank of India, Bhopal, Madhya Pradesh. He was initially an employee of the Imperial Bank of India and after constitution of the State Bank of India under the State Bank of India Act, 1955, the business of the Imperial Bank of India was taken over by the State Bank of India as per the provisions of the State Bank of India Act, 1955. Shyamal Sengupta died issueless on 8.11.1990 at Bhopal. He left behind him his widow Smt. Shipra Sengupta, his mother Niharbala Sengupta, his brothers Pushpal Sengupta and Mirdul Sengupta.

3. It may be pertinent to mention that Shyamal Sengupta was unmarried at the time when he joined the service of the bank and he nominated his mother as his nominee.

4. The appellant herein Smt. Shipra Sengupta filed an application under section 372 of the Indian Succession Act, 1956, in which she claimed that she was entitled to her share of insurance, gratuity, public provident fund etc. etc. According to the appellant, her claim was based on the principle that any nomination made by Shyamal Sengupta prior to his marriage would automatically stand cancelled after his marriage.

5. The appellant submitted that after the death of her husband both, she and mother of the deceased Niharbala Sengupta, were Class-I heirs under the schedule of the Hindu Succession Act, 1956 and consequently she was, therefore, equally entitled to succeed to the property along with her mother-in-law Niharbala Sengupta.

6. The Trial Court granted succession certificate to the appellant and the mother of the deceased in respect of total amount of life insurance, gratuity, public provident fund and general provident fund due to Shyamal Sengupta. The Trial Court held that both of them shall be entitled to half share in the aforesaid amounts due to Shyamal Sengupta from different heads. As to rest of the items mentioned in paragraph 6 of the application, the Trial Court held that the appellant alone was entitled to a succession certificate.

7. In an appeal jointly filed by the mother of the deceased Niharbala Sengupta and brother of the deceased Pushpal Sengupta, the Appellate Court rejected the contention of the applicants that on account of nomination made in favour of Niharbala Sengupta, in respect of the aforesaid items, the appellant Smt. Shipra Sengupta would not get any share in the amount credited or payable to Shyamal Sengupta. The learned District Judge held that the nomination did not confer any beneficial interest in the amount due towards life insurance, gratuity, public provident fund and general provident fund.

8. The learned District Judge relied on the decision of this Court in Smt. Sarbati Devi & Another v. Smt. Usha Devi (1984) 1 SCC 424 and on Om Wati v. Delhi Transport Corporation, New Delhi & Others 1988 Lab. I.C. 500 and modified the order of the Civil Judge in respect of other items holding that the mother of the deceased Niharbala Sengupta being the Class-I heir under the Hindu Succession Act, 1956 was equally entitled to the half share along with the appellant Smt. Shipra Sengupta. Accordingly, the learned District Judge modified the order passed by the Civil Judge and directed him to issue succession certificate in accordance with the modifications made by him in the order of the Civil Judge.

9. Niharbala Sengupta and Pushpal Sengupta, aggrieved by the order of the District Judge, filed a Civil Revision before the High Court. During the pendency of the said civil revision, Niharbala Sengupta died and her other son Mirdul Sengupta was substituted in her place on the basis of an alleged Will executed by her prior to her death in favour of Mirdul Sengupta. The Will expressly dealt with the amount to which she was entitled to receive as a consequence of grant of a succession certificate.

10. Pushpal Sengupta did not challenge the Will by which he was affected. Therefore, the position that emerged was that the court must presume for the purpose of this revision that the Will is validly executed in favour of Mirdul Sengupta.

11. In the impugned judgment, the High Court relied on the judgment of Sarbati Devi (supra) and observed that the nomination did not confer any beneficial interest on the nominee. The High Court passed the following order:

"(i) The amount of General Provident Fund deposited in the name of Shyamal Sengupta declaring that Mirdul Sengupta shall be entitled to entire sum due to Shyamal Sengupta together with interest to which he is entitled as per rules of deposit by the Bank till he is paid in full.

(ii) So far as rest of the items mentioned in paragraph 6(a) of the application under section 372 are concerned it is declared that after the death of Niharbala Sengupta, Mirdul Sengupta  is entitled to succession certificate along with Shipra Sengupta. Both of them shall be entitled to 1/2 share each as directed by the District Judge.

(iii) The Civil Judge shall also direct non-applicant No. 2 or any other authority to pay the interest on the amount mentioned in paragraph 2 till that is paid to them at the usual rate of 9% from the date of death of Shyamal Sengupta or the usual rate available to the depositor/subscriber whichever is less."

12. The appellant, aggrieved by the impugned judgment of the High Court, preferred this appeal. The following questions have been raised by the appellant in this appeal:

"I. Whether nomination of mother by a member of a Provident fund governed by the Imperial Bank of India Employees' Provident Fund Rules before his marriage confers ownership on the nominee and destroys right of succession of the widow under Succession Act?

II. Whether nomination only indicates the hand which is authorized to receive the amount on the payment of which trustees of the provident fund get a valid discharge?

III. Whether the provident fund can be claimed by the heirs of the member of the provident fund in accordance with the law of succession governing them?

IV. Whether it was proper for the High Court to rely upon a forged and fabricated Will which was not even signed by Niharbala?

 V. Whether it was proper for the High Court to accept the alleged Will on record in its revisional Jurisdiction, in absence of any application to that effect?

VI. Whether the High Court was entitled to take Will on record without giving fresh opportunity to lead evidence on it?

VII. Whether the High Court was right in interpreting and relying upon section 3(2) of Provident Fund Act, 1925?"

13. The appellant submitted that according to the settled legal position crystallized by the judgment of Sarbati Devi (supra), the principle of law is that the nomination is only the hand which accepts the amount and a nomination does not confer any beneficial interest in the nominee.

14. In Sarbati Devi (supra), this Court has laid down that a mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the life insurance policy, on death of the insurer. The nomination only indicates the hand which is authorized to receive the amount on payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession.

15. The appellant also placed reliance on the judgment of this Court in Vishin N. Khanchandani & Another v. Vidya Lachmandas Khanchandani & Another (2000) 6 SCC 724, wherein this Court held that the law laid down in Sarbati Devi (supra) holds the field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of National Savings Certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those in whose favour the law creates a beneficial interest, subject to the provisions of sub- section (2) of Section 8 of the Act.

16. Learned counsel for the appellant also placed reliance on a Division Bench judgment of the Delhi High Court in Ashok Chand Aggarwala v. Delhi Administration & Others (1998) VII AD (Delhi) 639. This case related to the Delhi Co- operative Societies Act. The High Court while following Sarbati Devi case (supra) held that it is well settled that mere nomination made in favour of a particular person does not have the effect of conferring on the nominee any beneficial interest in property after the death of the person concerned. The nomination indicates the hand which is authorized to receive the amount or manage the property. The property or the amount, as the case may be, can be claimed by the heirs of the deceased, in accordance with the law of succession, governing them.

17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession.

18. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same.

19. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956. The State Bank of India is directed to release half of the amount of general provident fund to the appellant now within two months from today along with interest.

20. The appeal filed by the appellant is accordingly allowed and disposed of, leaving the parties to bear their own costs.

............................................J. (Dalveer Bhandari)     ...........................................J(Dr. Mukundakam Sharma)

New Delhi; August 20, 2009.

 

 

Essentials of a Valid Contract

 

A contract is a consensus of mind of two parties to an agreement. Indian Law of Contract is governed by Indian Contract Act, 1872. The word 'contract' had its origin from a Latin term "Contractum" which means 'drawn together'. The word Contract is defined in the Indian Contract Act in Section 2(h). It is an agreement enforced by law as per the definition. So only agreements enforced by law are termed Contract. This means that there should be backing of law. An unlawful agreement will not be considered valid according to Indian Contract Act. Hence we can say that there are certain requirements or ingredients which forms a valid contract. Section 10 of the Indian Contract Act defines that "all agreements are contracts if they are made by the free consent of parties, competent of contract for a lawful consideration and with a lawful object and are not hereby expressly declared to be void". The requirements of a valid contract are as stated in the above definition. They are as noted below:

(1)Agreement

An agreement is defined in Section (e)of the Indian Contract Act. To constitute an agreement two parties are necessary viz the offeror and acceptor. There must be a promise and acceptance. There must be valid consideration also.

(2)Free Consent of parties

Free Consent is one of the essential ingredient required for a contract to be valid in the eye of law. It must be made with a free mind. As per Section 13 of the Act two or more persons are said to consent when they agree upon the same thing in the same sense. There must be 'consensus ad idem' or meeting of minds which are identical. Section 14 of the Act further says that consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation and mistake. This means that the contract should not be entered upon as a result of the above things. If it is so entered it is not with a free mind and not a valid contract.

(3) Competency of Parties

The parties must also be capable in the eye of law to enter into a contract. This rule is contained in Section 11 of the Act. It says that every person who is of the age of majority according to the law to which he is subject and of sound mind and is not disqualified from contracting by any law to which he is subject is competent to contract. The parties must be capable of understanding and forming a rational judgement of the effect of the contract.[Sec.12]

(4) Lawful Consideration

There must be consideration to make a contract valid. The term is defined in Section 2(d) of the Contract Act. If a person has done anything according to the wish and requirement of another or promises to do so, such act or promise forms a consideration. A contract without consideration is a nullity.[Section 25]

(5) Lawful object

The purpose of the contract must be to do something lawful. There must not be an intention to do an illegal act. The object must capable of lawful achievement. According to Section 24 of the Act unlawful agreements are void. 

(6) Not expressly void

There are some agreement in the Act which are expressly declared void. Agreement in restraint of marriage[Sec.26], agreement in restraint of trade[Sec.27], agreement in restraint of legal proceedings[Sec.28], agreements whic are uncertain[Sec.29], Agreements by way of wager[Sec.30] etc. An agreement must be one apart from the above to form a valid contract.

Thus a Contract to be valid must contain the above requirements. Unless they will either be void or voidable as per the Indian Contract Act.

 

judgment on professional misconduct

 

Citation : 1997 SOL Case No. 320

SUPREME COURT OF INDIA

Before :- S.C. Agrawal and Sujata V. Manohar, JJ.

Civil Appeal Nos. 3917-18 of 1986. D/d. 4.2.1997

V.P. Kumaravelu - Appellant

Versus

The Bar Council of India, New Delhi - Respondents

For the Appellant :- Mr. A.T.M. Sampath and V. Balaji, Advocates.

For the Respondent Nos. 2 and 3 :- Mr. A. Mariarputham, Ms. Aruna Mathur and Mr. V. Krishnamurthy, Advocates.

A. Advocates Act, 1961, Section 36B(1) - Professional misconduct - Moral turpitude - Client suffering ex-parte decree due to negligence of Government Pleader - Negligence contributed his staff also - No finding of mala fide or any deliberate inaction on part of pleader - Negligence without moral turpitude or delinquency may not amount to professional misconduct. [Paras 12 and 14]

B. Advocates Act, 1961, Section 36B - Professional misconduct - Moral turpitude - Whether negligence on part of an Advocate will amount to professional misconduct or not will depend upon facts of each case - Conduct which amounts to dereliction of duty by an Advocate towards his client or towards his case would amount to professional misconduct - But negligence without moral turpitude or delinquency may not amount to professional misconduct. [Paras 12 to 14]

JUDGMENT

Mrs. Sujata V. Manohar, J. - These appeals arise from a common order dated 15.5.1986 passed by the Disciplinary Committee of the Bar Council of India in D.C.I.T. Case Nos. 48 and 49 of 1985. These two cases pertain to the appellant and were transferred to the Disciplinary Committee of the Bar Council of India under the provisions of Section 36B(1) of the Advocates Act, 1961 as the Disciplinary Committee of the Bar Council of Tamil Nadu could not dispose of these cases within the prescribed period of one year.

2. On or about 21st of October, 1978, the appellant was appointed as City Government Pleader in all the Civil Courts constituted in Madras other than the High Court of Madras. The work was spread over several courts in Madras and the appellant as the city Government Pleader was required to conduct all the civil matters pending in the civil courts of Madras except the High Court, on behalf of the Government and also to give his opinion on these matters from time to time when required. The appellant was allowed the assistance of juniors who were not appointed by the Government. The respondent was provided with staff.

3. The first complaint which was filed by the Commission and Secretary, Government of Tamil Nadu against the appellant before the Disciplinary Committee of the Bar Council of Tamil Nadu bearing D.C. Case No. 48/1985 was in respect of Suit No. 400 of 1978 on the file of the City Civil Court at Madras. The Government Pleader was instructed to appear on behalf of the State Government in that case. The Memo of Appearance had been filed by the earlier Government Pleader. The records of the case had been sent to the Office of the Government Pleader and he had also been asked to prepare a written statement. However, when the appellant was appointed as Government Pleader, a fresh Memo of Appearance on his behalf had not been filed in the said suit nor were the papers put up before him. As a result, on 28.6.1979, the suit was decreed ex parte against the State. An application was thereafter moved by the appellant to set aside the ex parte order. The court set aside the ex parte order on condition that the Government should pay Rs. 20/- as costs. However, the cost was not deposited. As a result the application to set aside the ex parte order was dismissed on 27.9.1979. Consequently the suit was decreed ex parte with costs.

4. This suit had been filed by the Travancore Textiles Pvt. Ltd. against the State of Tamil Nadu relating to a lease of land admeasuring 1240 sq. ft. forming part of a channel. The plaintiff had prayed for a declaration that the annual rent of Rs. 3609.66 as also the Municipal taxes levied were illegal. The plaintiff had also made a prayer for refund of Rs. 25,575.40 with interest at the rate 12% p.a. and for a further declaration that he need not pay any rent after 30.6.1974. The complainant alleged that as a result of the gross negligence on the part of the appellant the Government of Tamil Nadu had suffered substantial loss.

5. The appellant contended that since the office staff had not put up the papers of this case before him, it was through inadvertence that the suit was decreed ex parte. The Bar Council of India has, however, noted that at the time when an application for setting aside the ex parte order is filed the appellant must have known about the pendency of the case, and the serious consequences that would follow if the order for payment of costs were not complied with. The Bar Council has held that for this lapse the appellant cannot raise the plea that the staff was negligent. Now, although the application for setting aside the ex parte order is filed by the appellant, it is not clear from the record whether the appellant had personally appeared in court for setting aside the ex parte order or was personally aware of or was appraised of the order of costs which had been passed while setting aside the ex parte order.

6. In fact, the Bar Council of India has noted mitigating circumstances which go to show that blame cannot be attached solely to the appellant. It has noted that from the correspondence which is brought on record, it is clear that at no point of time the papers pertaining to the case were placed before the appellant except for moving an application for setting aside the ex parte order. It is also not known whether the application was actually moved by the appellant himself or through a junior. It is not clear whether the order which was passed on this application for payment of costs was brought to the notice of the appellant either. The Bar Council has also noted that after the summons in the case was served on the State of Tamil Nadu through the Secretary to the Government of Tamil Nadu in June, 1978, a letter was sent on 27th of June, 1978 by the then Government Pleader. Thereafter the Collector of Madras vide his letter dated 20th of September, 1978, sent details and office remarks on the plaintiff's claim. At this time the appellant was not Government Pleader. These papers were received by his predecessor who made an endorsement on the letter of the Collector of Madras to the effect that remarks/statements be prepared. It is also not clear to whom this matter was assigned. According to the distribution of work, copy of which has been placed on record by the appellant, it was the duty of G. Jagannathan, the then Assistant to submit the records of the case to the City Government Pleader for preparation of the written statement. In the letter addressed by the Collector of Madras he had directed the Executive Deputy Tehsildar, Egmore to meet the Government Advocate with the concerned file and to render necessary assistance in preparing the draft written statement. But it appears that no one attended the office of the Government Pleader with the concerned file for preparing the written statement.

7. After the appellant took charge as the Government Pleader, he had also notified that representatives of the departments of the Government should remain present personally with files on various dates of hearing so that suitable instructions can be made available to the Government Pleader for conducting the case. But this instruction also does not seem to have been followed. It is in these circumstances that the case of the State went unrepresented.

8. The Bar Council has said that the office staff of the appellant was also responsible for misleading the appellant and keeping him in the dark. The Government also did not care to depute a responsible officer to attend the office of the Government Pleader.

9. After noting these circumstances the Bar Council of India has imposed a ``lighter'' punishment of severe reprimand after noting that the appellant is a fairly senior Advocate in the State of Tamil Nadu and has a good reputation and a good standing at the Bar.

10. The next complaint No. 17 of 1984 is in respect of a suit filed by an employee of the Directorate of Education of the State of Tamil Nadu challenging his date of birth. Summons was forwarded to the appellant along with a letter dated 24.9.1979 informing him that the date of hearing in the case was 10.10.1979. There is an endorsement made by the office of the Government Pleader on that letter. Thereafter another letter of 25.9.1979 was received by the office of the Government Pleader from the Directorate of Education, Madras on which an endorsement was made, ``remarks/written statement to be prepared''. These remarks are in the same handwriting in which the endorsement on the previous letter is made. However, no memorandum for appearance was filed in that suit on behalf of the State of Tamil Nadu. On 26.10.1979 an ex parte decree came to be passed in that suit.

11. The appellant has contended that the office had not put up these papers before him. Therefore, there had been a lapse in attending to this case. Here also the Bar Council of India has accepted that there was no deliberate lapse on the part of the appellant. His only lapse was not to have kept the office in order. The Bar Council has held, ``It may be that due to rush of work office might have kept him in dark and the papers might not have been put up.....''. The finding against the appellant, therefore, is that he was not able to control his office on account of rush of work and also because the staff which was allotted to him had been negligent in the performance of its duties and had not put up the papers in the concerned cases before him to enable him to take appropriate action. The appellant has been held guilty of ``constructive negligence'', and the Bar Council of India has reprimanded him.

12. Looking to all the circumstances the appellant was negligent as he had failed to attend to the two cases. His client had to suffer ex parte decrees. There is, however, no finding of any mala fides on the part of the appellant or any deliberate inaction on his part in not attending to the two cases. Will his negligence or ``constructive negligence'' as the respondent- Bar Council puts it, amount to professional misconduct ? Whether negligence will amount to professional misconduct or not will depend upon the facts of each case. Gross negligence in the discharge of duties partakes of shades of delinquency and would undoubtedly amount to professional misconduct. Similarly, conduct which amounts to dereliction of duty by an Advocate towards his client or towards his case would amount to professional misconduct. But negligence without moral turpitude or delinquency may not amount to professional misconduct.

13. In the case of In re a vakil, 1926 ILR 49 Mad. 523, Coutts Trotter, C.J., said, ``negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are, therefore, able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.'' In the case of P.K. Khandekar v. Bar Council of Maharashtra and others, AIR 1984 SC 110 at 113, this Court said, ``There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct......For an Advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an Advocate is entrusted with a brief he is expected to follow norms of professional ethics and try to protect interests of his client in relation to whom he occupies a position of trust. Counsel's paramount duty is to the client. When a person consults a lawyer for his advice he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests.''

14. In the present case, there is failure on the part of the appellant to discharge his duties towards his client. This failure, however, is not deliberate. It is on account of heavy pressure of work coupled with lack of diligence on the part of his staff as well as on the part of his client in not sending a responsible person with papers to the office of the Government Pleader. However, while the appellant cannot be held responsible for his client's failure to attend the office, the appellant cannot shift the blame entirely on his staff. As the head of the office it was his responsibility to make sure that the work is properly attended to and the staff performs its functions properly and diligently. The appellant has, therefore, rightly been held guilty of negligence. However, in the absence of any moral turpitude or delinquency on his part, we cannot sustain the finding of the Bar Council of India that his conduct in the facts and circumstances of his case amounts to professional misconduct. In fact the various mitigating circumstances have been noted by the Bar Council of India itself. The negligence on the part of the appellant in these circumstances cannot be construed as professional misconduct.

15. The appeals are, therefore, allowed. There will, however, be no order as to costs.

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Doctrine of Res Judicata applicability to interlocutory orders

 

Doctrine of Res Judicata _ applicability to interlocutory orders.

 

Principle of res judicata depends upon the facts and circumstances of each se and the nature of the order passed at an earlier stage of the proceedings.

 

ILR  2010 PAGE NO: 2446

 

The terms “Interlocutory Orders” and “ Res Judicata” discussed-HELD, According to Balck’s dictionary, the word “ interlocutory” means provisional, interim, not final, something intervening between the commencement and end.  According to Shorter Oxford Dictionary, the word “ inter” means pronouncements during the course of action, not finally decisive.  The term “interlocutory order” has not been defined in the CPC.  An order may be a step in the direction of final disposal of the suit or proceedings.  For example, orders regarding impleadment of parties, maintainability of a suit, jurisdiction of the court, grant of TI, appointment of receiver or commissioner etc., can be said to be interlocutory orders._ further held, the doctrine of res judicata is based on the need of giving finality to judicial decisions.  If any interlocutory order decides a controversy in part between the parties such decision would bind the parties there to operate as res-judicata at all subsequent stages of the suit and the court will not permit the party to “ set the clock back” during the pendency of the proceedings.  The test whether doctrine of res judicata is applicable or not, depends upon the facts and circumstances of each cas and the nature of order passed at an ealier stage of the proceedings.  IOW the question whether an order passed at one stage would not attract the general principle of res judicata depends upon the facts and circumstances of each case and the nature of the order passed at an earlier stage of the proceedings.

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FORM OF REGISTERED ADDRESS OF A PARTY

 

High Court Form No. (J) 17

FORM OF REGISTERED ADDRESS OF A PARTY

(Or. 6, r 14A C. P. Code)

 

IN THE COURT OF THE LEARNED DISTRICT JUDGE AT BARASAT, NORTH 24 PARGANAS

Ref:  MATRIMONIAL SUIT NO.____________/2010

SRI. PRAVAKAR GUPTA

……Petitioner No.1

- AND -

SMT. SWATI GUPTA NEE PAL

……Petitioner No.2

Name	Plaintiff or Defendant	Residence (Town or village, Post Office, Thana and District	Remarks
SRI. PRAVAKAR GUPTA, S/o. Sri. Ramjanam Gupta,         SMT. SWATI GUPTA NEE PAL, W/o. Sri. Pravakar Gupta, D/o. Sri. Basudev Pal,	Petitioner No. 1                   Petitioner No. 2	46, S.N.Banerjee Road,   Post Office: Barrackpore, Police Station: Titagarh, District: 24 Pgs (N)       CMDA Nagar, Barrackpore – Barasat Road, Flat No. C 3 M 1 122, Post Office: Telinipara, Police Station: Titagarh, District: 24 Pgs (N).

 

Application U/O.14.R.2 CPC for disposing the Case on a preliminary issue on behalf of defendant

 

 

In The Court Of Sh. Parshant Rana, Civil Judge(Jr.Div.) Kaithal

 

Jai Bhagwan                       Vs.                                Jitender Gulati etc.

 

                         Application U/O.14.R.2 CPC for disposing the

                         Case on a preliminary issue on behalf of defendant

                         No.1 & 3.

R/Sir,

                 The defendants/respondents submit as under:-

1.        That the above noted case is fixed for today for filling written statement.

2.            That this hon`ble court has no territorial jurisdiction to try and entertain the present suit on the following grounds :-

i)         That at the time of filing of the suit, the answering defendants were/are not actually and voluntarily residing, carying on the business and personally working for gain.

ii)         That no cause of action wholly or in part had/has been arisen between the parties with in the local territorial jurisdiction of this Hon`ble court as every document has been executed and attested at Delhi.

iii)             That the answering defendants have no subordinate office with in the local jurisdiction of this hon`ble court.

iv)          That as per agreement dt.6-1-2009, it was agreed between parties that all legal proceedings pertaining to and in respect of said films/albums/ live programms shall be subject to jurisdiction of appropriate courts at Delhi only.

v)            That as per agreement dt.6-1-2009, it was agreed that all disputes arising from these present agreement shall be referred to Arbitration`s as per provision of law relating to arbitration and decision of the arbitrators shall be binding on both the parties.

 

                                                                                                COntd-2-

                                                -2-

3.          That in view of the above facts, it is necessary to dispose of the suit on a preliminary issue by making the preliminary issue of territorial jurisdiction.

                  It is therefore prayed that the preliminary issue regarding the territorial jurisdiction may please be framed and the suit may please be dispose off accordingly, in the interest of justice.

Kaithal

Date:                                                            Submitted by

                                                                    Defendants/respondent no.1 & 3.             

 

                         Through Counsel