1. Execution of Will – Proof – Suspicious circumstances

There was refusal by plaintiff propounder of having any direct knowledge about execution of Will. The said refusal not believable especially since propounder lived with testator in same house for about five decades and testator had wanted to bequeath all his properties to propounder, her daughter and grand children to exclusion of his only sister. Attempt of plaintiff to suppress her involvement in execution of Will was suspicious circumstances. Scribe of will not being acquainted with testator, not believable that testator would request him to prepare will. Evidence of attesting witness stating that will was read over at office of scribe, inconsistent with evidence of scribe that he did not read over will to anyone. It was held that execution of will surrounded with several suspicious circumstances. The execution of Will, not proved.

Tresa Xavier v. Mrs. Mary Simon and Others AIR 2015 (NOC) 305 (Ker)

2. Petition for setting aside ex parte decree – Condonation of delay

In a suit for specific performance of agreement of sale the defendants had engaged counsel who had appeared in suit and filed written statement. Thereafter, no one appeared before subordinate court for more than three years. Suit was decreed ex parte. Belated petition filed for restoration No sufficient reasons pleaded and proved for abnormal delay in filing petition. Held delay cannot be condoned.

C. R. Boopathy and Nother v. V.S. Thirunavukarasu AIR 2015 (NOC) 308 (Mad.)

3. Instrument – Definition – It covers any instrument relating to sale of immovable property – Agreement of sale covered under Article 5(e) of Schedule 1-A.

The words “relating to sale of immovable property” are very wide. These are wider than “agreement for sale”. A conjoint reading of section 2(14) which defines “instrument” with Entry (e) Article 5 makes it clear that it is wide enough to cover a document by which any right or liability is either created or purported to be created, transferred, limited, extended, extinguished or recorded. As per the text and context, in which the words “instrument” in relation to sale of immovable property are used same are very wide and covers any “instrument”, which is relating to sale of immovable property. A microscopic reading of document in question shows that it is relating to sale of immovable property. Entry (e) does not confine it only to the “instrument” in which the persons are in the capacity of purchaser and seller. Its horizon is much beyond it and covers any “instrument” which is relating to sale of immovable property.

Rejendra Syal v. Hari Prasad Agrawal and Others AIR 2015 (NOC) 315 (MP) (Gwalior Bench)

4. Recovery of defaulted loan amount – Deduction from salary

Loan availed of by petitioner from society and before period of repayment was over, petitioner suspended from service. He was reinstated in service after more than 10 years of his suspension. Soon thereafter, proceedings initiated against petitioner for deduction of salary in order to recover loan amount is proper, plea of petitioner that proceedings initiated against him were bad as society had not obtained award under S. 69 of Act. Not tenable as S. 37 of Act is non obstante provision providing that if there is agreement between borrower and society/creditor regarding deduction of salary for satisfaction of debt, then employer of borrower obliged to deduct salary and pay amounts demanded by creditor on default being committed.

Sasikumar J. v. Branch Manager, Chittur Govt. Servants Co-op. Society Ltd. Kollengode & Ors. AIR 2015 (NOC) 232 (Ker.)

5. Execution of Will – Proof – Succession Act of 1925, S. 63

The Testator had died one day after execution of will. The will was scribed by father of witness who was stamp vendor . According to witness, contents of will were read over to testator and testator thereafter had put his thumb impression on will. Statement given by nephew of testator that he was looking after testator and that he had performed last rites of testator. Merely because mutation was attested few years after execution of will would not render will invalid also merely because time of death of testator was not known, it would not render will suspicious. Execution of will, proved.

Tek Ram v. Smt. Bali and Others AIR 2015 (NOC) 239 (HP)

6. Stamp paper – Defect description of executants – Effect – In absence of any specific provision in Act regarding defect as to description, stamp affixed was to be treated as valid

In absence of any specific provision in Act, it is not open to Collector to treat an instrument without any stamp duty if the stamp paid there contains description of a person other than the vender or vendor or a wrong description of any of the parties to the document. Such power can be exercised by Collector only if it has been provided in the statute and not otherwise. The purpose of Act, 1899 is that the appropriate revenue must come to the State Exchequer and also to get an instrument prepared which would have appropriate evidentiary value but this by itself will not confer a power upon Collector, either to impound the document to declare an instrument having no stamp duty or insufficient stamp duty, only for the reason that the description of purchaser in the stamp duty is not correctly stated or the purchaser of stamp duty is not one of the parties to the instrument.

Hakim Singh v. State of UP and Others, AIR 2015 (NOC) 321 (All)

7. Revision – Case decided – Unless issue or controversy is determined finally, it cannot be said that case has been decided – Revisional power conferred by S. 115 cannot be invoked: Code of Civil Procedure sub-section (3) of sec. 115

A plain reading of sub-section (3) of sec. 115 reveals that an order of the subordinate court may be set aside under revisional jurisdiction apart from other grounds on the ground that if it is allowed to stand would occasion to failure of justice and cause irreparable injury to the party against whom it is made. The amendment done in sub-sec. S. 115 cannot be read in a piecemeal but the entire section should be read as a whole.

Ajay R. Singh

Posted in May.

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