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Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi. Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses. The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. Last Testament - though unregistered, last will prevails the earlier registered will deed = Indeed, a perusal of Ex.A-5-Will would show that the testatrix referred to Will dated 11-3-1990 and rescinded the same. From the evidence of appellant No.1, who was examined as DW-1, it is clear that he had admitted the signature of the testatrix while denying the execution of Ex.A-5 Will. In the face of the evidence of PW-3 to PW-5, which remained unshaken, it needs to be held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true and valid. Even if PW-1 and PW-2 did not have personal knowledge of the manner in which Vasantha Devi executed the Will, the same would not in any manner affect its genuineness No Equities = When the sale deeds are hit by Doctrine of Lis Pendency, cannot claim any Equities=, but he has also sold Ac.5-00 of land which was bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to defendant Nos.8 and 9. It is also not in dispute that these properties were sold after the suit was instituted. In these facts and circumstances, defendant Nos.8 and 9 cannot claim any equities against respondent Nos.1 and 2. At the most, they can proceed against appellant No.1 for recovery of the money paid to him and also for damages, if any. - 2015 A.P. MSKLAWREPORTS

Proof of Will – mere expressed ignorance of the manner in which the Will was executed by each of them pleading that the other person has personal knowledge, that is hardly of any significance. – does not make the will invalid as the signature on the Will was admitted = A perusal of the cross-examination of the plaintiffs witnesses, and in particular that of PW-3 and PW-4, who are the attestors to Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is elicited to discredit their testimony regarding the execution of the Will by Vasantha Devi.  Except the suggestion consistently put to both the attestors and the scribe that the Will was fabricated using the    signatures of Vasantha Devi, nothing of significance which would cast a shadow on the genuineness of the Will has been extracted from these witnesses.  The evidence of these witnesses, in my opinion, completely satisfies the requirements of Section 63 of the 1925 Act. Though respondent Nos.1 and 2 have expressed ignor…

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Trade Mark - Sec.34 and Sec.47 - First User rule & Abandonment of right for not using for a period of 5 years 3 months from the date of registration - Interim Injunction pending suit - Apex court held that since the Plaintiff-Respondents have alleged, and have prima facie supported with proof, that they had already been using their trademark well before the attempted user of an identical or closely similar trademark by the Defendant-Appellant, the former would be entitled to a temporary injunction, in light of the abovementioned ‘first in the market’ test. We find that the Plaintiff-Respondents have made out a prima facie case. The two other factors in an interim injunction, namely the balance of convenience and an irreparable loss, are both in favour of the Plaintiff- Respondents, given the potential loss of goodwill and business they could suffer should an injunction be denied. The Defendant-Appellant has been injuncted from using the mark ROFOL since 2005, after having launched products bearing the mark only in the previous year, so the balance of convenience is in favour of allowing the injunction to continue. - Appeal dismissed-2015 S.C.MSKLAWREPORTS

Trade Mark - Sec.34 and Sec.47 - First User rule & Abandonment of right for not using for a period of 5 years 3 months from the date of registration - Interim Injunction pending suit - Apex court held that since  the Plaintiff-Respondents have alleged, and  have  prima  facie  supported  with proof, that they had already been using  their  trademark  well  before  the attempted  user  of  an  identical  or  closely  similar  trademark  by  the Defendant-Appellant,  the  former  would  be   entitled   to   a   temporary injunction, in light of the abovementioned ‘first in the market’  test.  We find that the Plaintiff-Respondents have made out a prima  facie  case.  The two  other  factors  in  an  interim  injunction,  namely  the  balance   of convenience and an irreparable loss, are both in favour  of  the  Plaintiff- Respondents, given the potential loss of goodwill and  business  they  could suffer should an injunction be  denied.  The  Defendant-Appellant  has  been injuncte…

Suit for Specific Performance of contract - defendant pleaded that it is only executed as security for debt - already executed an agreement of sale infavour of third party - plaintiff never pleaded that he is always ready and willing to perform nor pleaded that he is ready to redeem the mortgage debt nor pleaded that he has got already redeemed the mortgage debt - as per sec.20 (2)(a) of Specific relief Act , the plaintiff is not entitled for specific performance of the contract and on the other hand it is a fit case for refund of the amount of Rs.4 lakhs with 18 % per annum, failing which Trail court decree would be confirmed - 2015 S.C. MSKLAWREPORTS

the suit for specific performance of contract.- in a suit filed by the plaintiff/respondent No.1. -    It  was further agreed between the parties that the land  in  suit,  mortgaged  with defendant No.2/respondent No. 2  Gurgaon  Gramin  Bank,  Nagina,  would  be redeemed by the appellant before execution of the sale deed. -  since the answering defendant was in the need of  money,  he  had  taken  loan  of Rs.1,50,000/- from the plaintiff on 21.06.2004, on interest at the  rate  of
1.5% per month. The appellant specifically denied  having  received  rupees four lacs, as alleged by the plaintiff.  It is  further  pleaded  that  when respondent No. 1 made demand for repayment of Rs.1,50,000/-  with  interest, and created pressure, the answering defendant asked  Pravin  Kumar  to  make payment of Rs.1,80,000/- to the  plaintiff.   It  is  further  alleged  that after said payment was made to the plaintiff on 10.11.2005 by Pravin  Kumar,the alleged agreement dated 21.06.2004, which was …

Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.?- Admission can not be withdrawn but can be clarified or explained by way of amendment = We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Smiarup (supra) that a categorical admission made in the pleadings cannot be pertted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that: “11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. The defendant No.5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the defendant no.5 Kusum and Bina (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations.” In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows: “The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written.” In the above circumstances, we do not intend to make the suit filed in the year 2005 otherwise infructuous. The application for amendment withdrawing the admissions made in the written statement on relinquishment of the claim to the suit property by Defendant Nos. 5 and 12 is rejected. However, we, in the facts and circumstances of the case, are of the view that Defendant Nos. 5 and 12 should be given an opportunity to explain/clarify the admissions made in the written statement. Accordingly, Defendant Nos. 5 and 12 are permitted to file an application within one month from today limiting their prayer only to the extent of explaining/clarifying the disputed admissions in the written statement which will be considered on its merits and in the light of the observations made herein above.-2015 S.C.MSKLAWREPORTS

Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.?- Admission can not be withdrawn but can be clarified or explained by way of amendment = We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Smiarup (supra) that a categorical admission made in the pleadings cannot be pertted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that: “11. …. Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 whe…

The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately. -2015 S,C,MSKLAWREPORTS

The proof of demand of  illegal  gratification,  thus,  is   the gravamen of the offence under Sections 7 and  13(1)(d)(i)&(ii)  of  the  Act and in absence thereof, unmistakably the charge therefor, would fail.   Mere acceptance of any amount  allegedly  by  way  of  illegal  gratification  or recovery thereof, dehors the proof of demand, ipso facto, would thus not  be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove  the  demand for illegal gratification would be fatal and mere  recovery  of  the  amount from the person accused of the offence under Sections 7 or  13  of  the  Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS   In reiteration of the golden principle which  runs  through  the web of administration of justice in criminal  cases,  this  Court  in  Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion,  however grave, cannot  take the place of…

Whether the application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) seeking appointment of a Sole Arbitrator in terms of clause 22.3 of the Supply Contract between the parties which was entered is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS Under Section 15(2) of the Act in a situation where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules that were applicable to the appointment of the arbitrator who is replaced. Clause 22.3 of the Supply Contract contemplates appointment of a sole arbitrator by the parties by mutual consent. In a situation where the original arbitrator i.e. Shri Justice S.K. Dubey had recused himself the substitute or new arbitrator is required to be appointed according to the rules that were applicable to the appointment of the original arbitrator. This is the mandate of Section 15(2) of the Act. It was, therefore, incumbent on the petitioner to give notice and explore the possibility of naming an arbitrator by mutual consent and only on failure thereof the present application under Section 11(6) of the Act could/should have been filed. The above recourse is required to be followed by virtue of the provisions of Section 15(2) of the Act and the decision of this Court in Yashwith Constructions (P) Ltd. (supra). Admittedly, the same had not been followed. In these circumstances, the Court will understand the present application/arbitration petition to be premature. It is accordingly not entertained leaving it open for the petitioner to act appropriately, if so advised, in terms of the present order and thereafter seek its remedies as provided by law. The Arbitration Petition is disposed of in the above terms. 2015 SC MSKLAWREPORTS

Whether the application under Section  11(6)  of  the  Arbitration  and
Conciliation Act, 1996 (hereinafter referred  to  as  “the  Act”)  seeking appointment of a Sole Arbitrator in terms of  clause  22.3  of the Supply Contract between the  parties  which  was  entered  is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS

Under Section 15(2) of the Act in a situation where the  mandate
of an arbitrator terminates, a  substitute  arbitrator  is  required  to  be
appointed according to the rules that were applicable to the appointment  of
the arbitrator who is replaced.

Clause 22.3 of the Supply Contract contemplates  appointment  of
a sole arbitrator by the parties by mutual consent.
In  a  situation  where
the original arbitrator i.e. Shri Justice S.K.  Dubey  had  recused  himself
the substitute or new arbitrator…

Section 157 - A of the U.P Zamindari And Land Reforms Act-"157-A. Restrictions on transfer of land by members of Scheduled Castes. - (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector : Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transfer on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares. (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed." From a perusal thereof, it would be clear that nowhere does the Section restricts itself to agricultural land. On the contrary, the language used is that no Bhumidhar or Asami belonging to a Scheduled Caste Category shall have the right to transfer any land without the approval of the Collector. In the present case, admittedly, no previous approval for transfer has been granted by the Collector though according to petitioner the lease deed was registered without any objection. In our opinion, once an act has to be done by a specific method, it is not possible to accept the contention of the petitioner that because at the time of executing of the lease deed, the said lease deed was registered and that amounts to a transfer granting approval by the Collector under Section 157-A of the Act. We are therefore, clearly of the opinion that the Collector having not granted approval prior to the execution of the lease deed, the respondents were right in not awarding marks to the petitioner under the head of land and infrastructure. 2015 Allahabad High court[2011] MSKLAWREPORTS

Section 157 - A of the U.P Zamindari And Land Reforms Act-"157-A. Restrictions on transfer of land by members of Scheduled Castes. - (1) Without prejudice to the restrictions contained in sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector : 
Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transfer on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares. 
(2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed." 
From a perusal thereof, it would be clear that nowhere doe…
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Suit for specific performance - Sec.20 of Specific Relief Act - Sec.13 of Indian Evidence Act - whether criminal court finding is binding on civil court - Apex court held that when it is quater white paper and when the original agreement of sale mentioned in it not produced - Court has to exercise it's discretion under sec.20 of Specific Relief Act - Court can not come to a conclusion on criminal court findings as it is not final conclusion one , with out giving an independent finding. - High court committed wrong - suit is dismissed as held by trial court - 2015 S.C. MSKLAWREPORTS

High Court partly allowed the appeal, set aside  the  judgment  of
the trial court and decreed the suit  of  the  plaintiff-respondents  herein
for specific performance as well as  for  recovery  of  possession  of  suit
items I, II and III.

 The children of late Jambusab could not agree  to  divide
the properties of late Jambusab.  They  litigated  and  ultimately  in  R.A.
133/49-50 on the file of the High Court, a final decree was passed  and  the
properties described in the Schedule to the plaint fell to the  joint  share
of the first plaintiff and his younger brother R.A. Rasheed.   The  date  of
the decree is 22.08.1950.
The first plaintiff and his younger brother  thus
became the exclusive joint owners of the suit  schedule  property  and  from
the date of the High Court decree namely 22.08.1950.

The first item of  the
suit schedule which was designed as a Cinema building was leased jointly  by
the first plaintiff and his  younger  brother  R.A.  Rasheed  to  late  N.K.
Subbaiah…

Declaration suit and for injunction = whether court fee has to be paid for injunction - no as it is consequential relief ..................... (c) directing the respondents 3 and 4 to restore the service connection by way of mandatory injunction;= Suits for declaration are dealt with by Section 24 of the Andhra Pradesh Court-Fees and Suits Valuation Act, 1956. It deals with suits for declaration with or without consequential reliefs not falling under Section 25 of the said Act. We are not concerned with Section 25 because this is not a suit falling under that Section. Clause (a) of Section 24 of the said Act deals with "suits where the prayer is for a declaration and for possession of the property to which the declaration relates"; Clause (b) deals with "suits where the prayer is for declaration and for a consequential injunction and the relief sought is with reference to any immovable property" Clause (c) deals with "suits where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right"; and Clause (d) deals with all other cases "where the subject-matter of the suit is capable of valuation or note"; and it provides that fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher. None of the Clauses contemplate payment of separate court-fee for a consequential relief. The present suit falls under Clause (d) of Section 24, and the petitioner has paid the court-fee on the entire amount in respect of which a declaration has been sought.= In the circumstances, I am of the view that the learned Subordinate Judge was in error in directing the petitioner to pay court-fee on Rs. 24,000/- for the consequential relief of mandatory injunction and the Civil Revision Petition is, therefore, allowed, and the direction of the learned Subordinate Judge is set aside.-2015 A.P.( 1993) MSKLAWREPORTS

whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet

whether no remand in police  custody  can  be  given  to  the  investigating agency in respect of the absconding  accused  who  is  arrested  only  after filing of the charge sheet  

Out of eight  proclaimed  offenders,  five,  namely,  Rathin  Dandapat,  Md.
Khaliluddin, Dalim Pandey, Joydeb Giri  and  Tapan  Dey,  were  arrested  on
29.4.2014, whereafter on 30.4.2014 the CBI sought  their  remand  in  police
custody.  The Additional Chief Judicial Magistrate,  Jhargram  rejected  the
prayer of the CBI, aggrieved by which said  investigating  agency  submitted
Revisional Application (C.R.R. No. 1510 of 2014) before  the  Calcutta  High
Court.  Absconder-accused Chandi Karan was arrested on 9.5.2014  by  CID  of
the State, which informed the CBI about his arrest  and  meanwhile  vacation
Magistrate remanded judicial custody of said accused up to  12.5.2014.   The
CBI on 12.5.2014 sought remand  in  police  custody  in  respect  of  Chandi
Karan, but the same was also  rejected  by  …

whether on restoration of a suit an order of injunction passed is automatically revived or not. I am, therefore, of the opinion that the interim order of injunction did not revive on restoration of the suit. The Courts, however, would be well-advised keeping in view the controversy to specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders, an express order to that effect should be passed. 2015 S.C. [ 2004]MSKLAWREPORTS

whether on restoration of a suit an order of injunction passed is automatically revived or not.
Apex court held that


I am, therefore, of the opinion that the interim order of injunction did not revive on restoration of the suit.


The Courts, however, would be well-advised keeping in view the controversy to specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders, an express order to that effect should be passed. 2015 S.C. [ 2004]MSKLAWREPORTS