7. BEST OF THE REST

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$MD\6LQJK6XFKLWUD.DPEOHAdvocates
BEST OF THE REST
1. Will – Execution – Validity –
Cumulative effect of all suspicious/
unnatural circumstances – Exclusion
of sons from Will – Not suspicious
circumstance when exclusion is stated
in Will to be made as they were
settled Succession Act, 1925, S. 63
The issue is related to the validity and legality
of a Will executed by mother of the Appellant
and the first respondent. The Trial Court
dismissed the probate proceedings instituted
by the first respondent by holding that the
execution of the Will is surrounded by a host
of suspicious circumstances rendering the
same legally unacceptable. The High Court set
aside the view of the Trial Court.
The Supreme Court observed that a Will
may have certain features and may have
been executed in certain circumstances which
may appear to be somewhat unnatural. Such
unusual features appearing in a Will or
the unnatural circumstances surrounding
its execution will definitely justify a close
scrutiny before the same can be accepted. It
is the overall assessment of the Court on the
basis of such scrutiny; the cumulative effect
of the unusual features and circumstances
which would weigh with the Court in the
determination required to be made by it.
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The judicial verdict, in the last resort, will
be on the basis of consideration of all the
unusual features and suspicious circumstances
put together and not on the impact of any
single feature that may be found in a Will
or a singular circumstance that may appear
from the process leading to its execution or
registration.
In the present case, a close reading of the
Will indicates its clear language, and its
unambiguous purport and effect. The mind
of the testator is clearly discernible and the
reasons for exclusion of the sons is apparent
from the Will itself. The stand of the plaintiff
that the original Will has lost while in the
custody of her mother and her knowledge of
such loss on the day of her mother’s death
cannot be disbelieved merely because no
report in this regard was lodged before the
police. The Court further observed that an
appeal to Supreme Court can be lodged only
upon grant of special leave to appeal would
indicate the highly circumscribed nature of the
jurisdiction of the Supreme Court. In contrast
to an statutory appeal, an appeal lodged upon
grant of special leave pursuant to a provision
of the Constitution would call for highly
economic exercise of the power which though
wide to strike at injustice wherever it occurs
must display highly judicious application
thereof. Determination of facts made by
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the High Court sitting as a first appellate
court or even while concurring as a second
appellate court would not be reopened unless
the same give rise to question of law that
require a serious debate or discloses wholly
unacceptable conclusions of fact which plainly
demonstrate a travesty of justice. Appreciation
or re-appreciation of evidence must come to a
halt at some stage of the judicial proceedings
and cannot percolate to the constitutional court
exercising jurisdiction under Article 136.
the said application, the trial court allowed
the application subject to payment of cost
and adjourn the case. The wife moved
the High Court and invokes supervisory
jurisdiction for setting aside order of trial court
whereby stating to set aside the ex parte
proceedings.
The High Court observed that the question
arising in the petition is no more res integra
as far as the High Court is concerned. An
application by the defendant setting aside ex
6JG5WRTGOG%QWTVCHſTOGFVJGXKGYQHVJG parte proceedings, which lies under Order
High Court and dismissed the appeal.
9, Rule 7, CPC can be moved during the
course of hearing of the suit, that is, after
Leela Rajagopal & Ors. vs. Kamala Menon
the defendant is set ex parte till hearing of
Cocharan & Ors. AIR 2015 Supreme Court 107
ſPCNCTIWOGPVUKPVJGUWKV*QYGXGTPGKVJGT
an application under Order 9, Rule 7, CPC
2. Ex
parte
proceedings
– would lie nor ex parte proceedings can be
Application for setting aside UGVCUKFGCHVGTſPCNCTIWOGPVUKPVJGECUGCTG
of – It would not lie after final heard and order reserved. Remedy available
arguments have been heard and to the defendant in that case is only to file
an application for setting aside the ex parte
reserved – Civil P. C., 1908, O. 9 judgment and decree against him. This view
R. 7
is ascertainable from the judgment of the
The issue raised in this petition is whether Supreme Court in Arjun Singh vs. Mohindra
an application for setting aside ex parte Kumar AIR 1964 SC 993. Thus the High Court
proceedings would lie and ex parte set aside the order of the trial court and
proceedings can be set aside after final directed to pronounce the final judgment in
arguments in a suit have been heard and the petition.
judgment reserved?
Jyoti Devi vs. Learned Munsiff, Basohli & Anr.
The facts of the case are that the petition AIR 2015 Jammu and Kashmir 6.
was filed by the wife under Section 13(2) of
Hindu Marriage Act against her husband.
Devolution of property –
The husband appeared on some dates of 3.
hearing but the matter was proceeded ex Property of female Hindu which
parte. The trial court recorded wife’s evidence she inherited from her parents
ex parte, closed her evidence and listed the
on her death – Would devolve
case for final arguments. Final arguments
were heard and concluded and the judgment simultaneously on her husband and
was reserved. However, immediately after the her issue(s). Hindu Succession Act,
conclusion of the arguments and reserving the 1956, Ss. 15 (1), 16
judgment an Advocate appeared on behalf The appeal involves the questions as under:
of the husband and filed an application for
When the admitted facts are that the
setting aside the ex parte proceedings against
deceased wife died leaving behind one
the husband. The wife filed objections to
son and her husband and the property
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was inherited by her parents, whether the
courts can give finding that the property
will not devolve upon her husband
simultaneously with her son under Section
15(1)(a) of the Hindu Succession Act but it
shall devolve upon her son only?
And
if the property will devolve
simultaneously on father and son, whether
Section 8 of the Hindu Minority and
Guardianship Act, 1956 will operate against
the transfer of the property made by the
father?
The High Court observed that Section 15
has to be read in conjunction with Section
16 which evolves a new and uniform order
of succession to her property and regulates
the manner of its distribution. The order of
succession in case of property inherited by
her from her father or mother, its operation is
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son, a daughter or children of any predeceased
son or daughter. Sub-Section (2) of Section 15
craves out an exception in case of a female
dying intestate without leaving son, daughter
or children of a predeceased son or daughter.
In such a case, the rule prescribed is to find
out the source from which she has inherited
the property. If it is inherited from her father
or mother, it would devolve as prescribed
under Section 15(2)(a). If it is inherited by her
from her husband or father-in-law, it would
devolve upon the heirs of her husband under
Section 15(2)(b). If there is no son or daughter
including the children of any predeceased son
or daughter, then the property would devolve
upon the heirs of her father. It was further
observed that “basic aim of Section 15(2) is to
ensure that inherited property of an issueless
female Hindu dying intestate goes back to the
source. It was enacted to prevent inherited
property falling into the hands of strangers.”
While Section 15(1) lays down the ordinary
rule of succession, sub-section (2) which
starts with a non-obstante clause carves out
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two exceptions: (i) if the female dies without
leaving any issue, then the property inherited
by her from her father or mother would
devolve not according to the general rule laid
down in sub-section (1) but upon the heirs of
her father, and (ii) if the female dies without
leaving an issue, the property inherited by her
from her husband or from her in-laws would
devolve not according to the general rule laid
down in sub-section (1) but upon the heirs of
the husband. In case of Radhika vs. Aghnu Ram,
(1995) 2 East LJ 13 (SC) it was held that for the
property inherited by a female Hindu from her
father or mother, in the absence of her son or
daughter, the succession opens to heirs of the
father or mother and not to Class–I heirs in the
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QH5GEVKQP
and in the order of Section 16 of the Act.
Thus the High Court held as regards first
question that in the presence of any issue
the Hindu female’s property which she
inherited from her parents would devolve
simultaneously on her husband and her issue
(s) in accordance with Section 15(1) read with
Section 16 of the Act. And about the second
question on the applicability of Section 8 of the
Hindu Minority and Guardianship Act, 1956,
the law is settled that the interest of a minor
in the joint family property is kept outside
the ambit of Sections 6 and 12 of the Hindu
Minority and Guardianship Act. In respect
of minor’s undivided interest in joint family
property the natural guardian of the minor
can deal with it in accordance with the Hindu
Law.
Laxmindhar Sahoo & another v. Batakrushna Sahoo
AIR 2015 ORISSA 1
4.
Forfeiture of earnest money –
Contract not concluded – No work
order issued – Terms of contract
cannot bind tenderer. Contract Act,
1872, Ss. 5, 10, 74 –
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There was tender but same having not been
successful, the petitioner was called upon
for negotiation and in such negotiation
certain amount was settled. Accordingly
petitioner deposited the said amount. But the
Board wanted to have further negotiation for
enhancement of the bid amount and finally
settled certain amount which the petitioner
was required to be deposited within certain
period pursuant to the acceptance order. In
compliance with the said acceptance order,
admittedly the petitioner neither deposited
the balance amount nor executed any
agreement or any work order was issued in
his favour. On the contrary the petitioner
expressed his desire not to proceed with
the contract. Admittedly no agreement
was executed between the parties nor the
petitioner had deposited the balance amount
and as a consequence thereof no work order
was issued in his favour. Thereby the basic
norms of the contract were not complied
with. Without entering into an agreement,
its terms and conditions cannot bind the
petitioner and any action taken pursuant to
such agreement cannot have effect as the
parties had not entered into any contract
by signing agreement. Before entering into
an agreement as a token of acceptance of
the tender, the tenderer can also express
his view not to accept the tender what has
exactly happened in this case. As per the
provisions of the Contract Act there must be
an acceptance and that acceptance has to be
made by executing an agreement between the
parties. When the parties enter into agreement
the same is binding on them. In absence of
such agreement and expression of willingness
to accept the tender by way of acceptance
order, the amount deposited by the tenderer
cannot be/could not have been forfeited by the
opposite party.
5. Bamboo sticks used in Agarbattis
– Are not forest produce. Forest Act,
1927, Ss. 2(4)(b)(i), 2(7)
Dibakar Swain vs. Cashew Development
Corporation, Odisha & Another AIR 2015 Odisha
6.
The State of Tripura & Others vs. All Tripura
Bamboo Sticks Merchants and Suppliers
Association, Kumarghat & Others. AIR 2015
Tripura 4.
The question arose in writ petition as to
whether bamboo sticks which are used to
make Agarbattis are forest produce or not.
The High Court held that a bamboo stick is
not a distinct article. The only manufacturing
process is that the bamboo is cut down into
smaller pieces. It retains the essential character
of being a bamboo. Once the bamboo has
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out whether it was found or brought from a
forest or not. At this stage, it cannot be said
that the bamboo which the petitioners used
had come from the forest. Therefore, though
bamboo sticks used for making Agarbattis can
be treated to be forest produce, the State must
also prove that either they were produced out
of bamboo which was growing in a forest. If
the Agarbatti sticks have been fashioned out
of bamboo growing in homestead or private
land which is not forest, then it cannot be
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of “forest produce”, clause (b) will apply when
the goods are shown to have been either found
in, or brought from a forest. The goods falling
in Clause (b) of sub-section (4) of Section 2 can
be treated to be forest produce only if they are
found in the forest or if they are found to have
been brought from a forest.
The High Court further observed that State
can lay down certain guidelines and procedure
whereby the maker of the bamboo sticks will
have to show from where they procured the
bamboo and the transportation of bamboo
being a forest produce must be kept strictly in
control as has been laid down by Apex Court
in case of T. N. Godavarman’s case 2001 AIR
SCW 4590.
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