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Sunday, December 25, 2011

mesne profits =The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs.

HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Between: M. Raja Gopala Rao and another ….Appellants. And: Sri K. Vinay Reddy …..Respondent. C.C.C.A No.79 of 2008 Between: Sri K. Vinay Reddy ….Appellant. And: M. Raja Gopala Rao and another …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 COMMON JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) Both the appeals arising out of the decretal order passed in I.A.No.92 of 2007 in O.S.No.2024 of 2005 by the IV Senior Civil Judge, City Civil Court, Hyderabad on 07.11.2007. The appellants in C.C.C.A.No.26 of 2008 are the petitioners/ decree-holders and the appellant in C.C.C.A.No.79 of 2008 is the respondent/judgment-debtor. The petitioners/decree-holders have filed an application under Order XXVI Rule 12 read with Section 151 C.P.C for appointment of an Advocate-Commissioner to ascertain the mesne profits from 01.10.2005 till the respondent vacated the premises. The brief averments of the affidavit filed in support of the petition are that they have filed O.S.No.2024 of 2005 for eviction recovery of arrears of rent and the mesne profits against the respondent and the said suit was decreed on 18.01.2007 directing the respondent to vacate the suit schedule premises within a period of three months and permitted the petitioner to file a separate application to ascertain the quantum of mesne profits. According to the petitioner, the suit schedule property consists of two buildings in a plot of land around 1257 sq. yards situated in the prime locality of Jubilee Hills on its most important and commercial Road No.36. The building is located on the main road on an elevated spot at the junction of the Arterial 4-lane road No.36 to Hi-tech City. The suit schedule premises consisting of ground and first floor and smaller areas of cellar and second floor comprising one room only with a total carpet area of 9,000 sq. feet. The road is now host to all brand name national and international commercial establishments. Establishments like Reebok, Sundaram Motors, Furniture Shops, various Boutiques, Restaurants, Supermarkets, Healthcare and Lifestyle Centers, Banks and various other international class offices are located on this road. The entire suit schedule property is being used for commercial use by the judgment debtor who is running a Restaurant on the name of Cook’s Touch, Masala Guest House, Coffee Bar in the name of Cafe Latte, Ice Cream Parlor and Masala Pan Shop in suit schedule premises. The JDr is currently earning huge income from all these ventures. The current schedule property prevailing rentals per sft., of space on this road have been increasing year by year and are currently averaging around Rs.42.47 ps per sft on continuing agreements covering the period from 2001 till 2006. Rentals on agreements signed in the year 2006 only are averaging around Rs.67.15 ps per sft., relevant in this case as the mesne profits claimed are from 1.10.2005 till date. The calculation of mesne profits is based on the certified copies of the registered lease deeds Exs.A-1 to A.6 issued by the concerned Sub Registrar. All the calculations are based on the actual rental figures agreed to in these registered lease deeds by the respective parties and prayed for ascertaining the mesne profits basing on the lease deeds marked as Exs.A.1 to A.6. Respondent opposed the application by filing counter pleading that the copies of the registered lease deeds filed along with the affidavit are not relevant and cannot be considered as a basis for determination of mesne profits in the matter. The road No.36 in which the suit schedule property is situated is a very long road stretching to an extent of about two kilometers. The area covered by suit schedule property is not a commercial area but it is a residential area. The UCO bank and Pacific Hospitals, ICICI Bank are situated totally in different roads which are actually far away from the suit schedule property and as such their rental value cannot be taken as basis for determination of mesne profits. Likewise Trinethra Super Market, Sundaram Motors, Reebok India and Prakash Arts, are all though situated in Road No.36 are in fact far away from the suit schedule property and they are not proximate to the premises and even distances of their location from suit schedule property furnished by the petitioner are false and the petitioner is put to strict proof of the same. In any case, the said rental values cannot be adopted for arriving at the mesne profits of the suit schedule property. More over the nature of business done in the said premises of the lease deeds filed by the petitioner are totally different and cannot be equated with the restaurant business of this respondent. The petitioner claims mesne profits @ Rs.30/- per sq. feet in the plaint, whereas in the present petition he claims @ Rs.67.15 ps as mesne profits which itself shows that the claim of the petitioner for mesne profits is false, exorbitant without any basis. P.W.1 in the cross-examination has admitted that originally the rent was Rs.15,000/- per month and after 11 months, it was enhanced to Rs.16,500/- and further after 11 months it was enhanced to Rs.18,000/- per month. Therefore, it is clear that after a period of every 11 months an amount of Rs.1,500/- was enhanced and as such the petitioner cannot have right to claim excess amount, arbitrarily as mesne profits more than the amount of rent received by the petitioner. Hence the petitioner is devoid of any merits and the petitioner is not entitled to claim the mesne profits and the petition is liable to be dismissed. The lower court has appointed Sri I.P. Radha Krishna Murty as Commissioner to enquire into the mesne profits and submit a report. The said Commissioner has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet for the suit schedule property. For the said report both the petitioners and respondent’s counsel have filed their objections and the lower court by taking into consideration of the said objections allowed the petition by granting mesne profits @ Rs.30/- per sq. feet. Aggrieved by the said order, both the petitioner/DHr and the respondent/JDr have preferred the above said two appeals. Now the point that arises for consideration is whether the mesne profits fixed by the lower court is just, legal and valid? The learned counsel for the appellants in C.C.C.A.No.26 of 2008 pleaded that as per the documents produced before the Commissioner, the market rate in that area is Rs.60/- per sq. yard and the Commissioner has granted only Rs.46.06 ps per sq. feet and the lower court is only granted Rs.30/- per sq. yard stating that they have only claimed Rs.30/- per sq. yard in the plaint. The learned counsel has also further pleaded that the claim made in the plaint is only a tentative claim and it cannot be a basis for granting the mesne profits and the mesne profits have to be decided basing on the material placed before it and the learned Commissioner has after due enquiry has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet and the lower court ought to have granted the same. The learned counsel for the appellant in C.C.C.A.No.79 of 2008 has pleaded that the burden is on the plaintiff to establish the quantum of mesne profits to which he is entitled by producing proper evidence before the Commissioner and in the present case, the petitioner/DHr was not examined to speak about amenities provided by him in the suit schedule premises and the prevailing market rates in the said area for similarly situated locations and mere production of the lease deeds will not give rise to claim for mesne profits by the petitioner. The learned counsel for the appellant has further pleaded that the Commissioner submitted the report like a judgment and he has not supposed to ascertain the mesne profits and he ought to have enquire into the mesne profits by taking into consideration of prevailing rates in that area and submit his report before the lower court. In the present case, the learned Commissioner even though examined the witnesses, he did not mark any exhibits through them and even before examining the witness he has marked the documents and as such the respondent has no opportunity to question the validity of the said documents in the cross-examination of the witnesses examined by the Commissioner. Hence, the report of the Commissioner is liable to be set aside. The learned counsel for the appellant has further pleaded that even granting of Rs.30/- per sq. yard as mesne profits is highly excessive in the present case as the rent that was being paid by the appellant from the month of October, 2003 is Rs.30,000/- for 9000 sq.ft., which was subsequently enhanced to Rs.36,000/- for 9000 sq. ft., which works out to Rs.4/- per sq feet. There could not have been exorbitant increase from Rs.4/- to Rs.30/- per sq. feet and the lower court has not given any valid reasons for arriving at the said mesne profits at Rs.30/- per sq. feet and the lower court has simply arrived to that figure and as such the awarding of the mesne profits at Rs.30/- per sq. feet by the lower court is liable to be set aside. The lower court has appointed a Commissioner for ascertaining the mesne profits at the instance of the appellants in C.C.C.A.No.26 of 2008 and he submitted the report. The respondents in the said appeal has questioned the validity of the said report filed by the Commissioner. Therefore, it has to be examined whether the report of the learned Commissioner is valid and it is in accordance with the law. A perusal of the report of the learned Commissioner shows that he has proceeded to the suit schedule property and identified the property with the help of both the counsels of both parties and subsequently he has gone to different business establishments collectively and recorded their evidence. According to him he examined P.Ws.1 to 6 on behalf of the petitioners and R.Ws.1 to 3 on behalf of the respondents. According to him even before examining any witnesses, the petitioner No.1 has produced the certified copies of the registered lease deeds and he got marked them as Exs.A.1 to A.7. The deposition of P.Ws.1 to 7 recorded by him does not disclose about marking of any of the documents and they only stated about entering into lease in respect of their premises and quantum of rent paid by them. No documents were produced on behalf of the respondents. R.Ws.1 to 3 were examined and they also stated the same facts with regard to the leased out premises and the monthly rents being received by them without producing any documents. Basing on the said evidence and material placed before him, the learned Commissioner has assessed the mesne profits. He adopts the matters calling them as (i) the statistical method based on documentary and oral evidence, (ii) Mathematical method based on documentary and oral evidence. Statistical method only based on oral evidence and Mathematical method based only on documentary evidence and finally as per statistical method based on oral and documentary evidence arrived the mesne profits of Rs.45.32 ps, as per Mathematical Method based on oral and documentary evidence arrived the mesne profits at Rs.51.45 ps, as per the statistical method based on documentary evidence arrived the mesne profits at Rs.43.83 ps per sq. feet, as per Mathematical Method based on the documentary evidence arrived, the mesne profits of Rs.48.29 ps sq. ft. The average of Statistical and Mathematical method based on documentary evidence only comes to Rs.46.06 ps per sq. ft. Therefore, he has fixed the mesne profits for the said suit schedule premises at Rs.46.06 ps per sq. feet. As rightly pointed out by the learned counsel for the appellant in C.C.C.A.No.79 of 2008, the petitioner/plaintiff ought to have been examined before the commissioner in support of his claim for mesne profits by showing the area leased out to the respondent and the amenities available in the suit schedule premises and compare the facilities and amenities provided in the premises for which he has produced the documents Ex.A.1 to A.7. But, the petitioner was not examined himself nor produced any documentary evidence in that regard and he simply marked Exs.A.1 to A.7 and examined P.Ws.1 to 6. The Commissioner has prepared a statement showing the premises covered by Ex.A.1 to A.7 and the distance from the schedule premises and the rent paid under the said document and arrived the rate for sq. feet. The Commissioner has not considered the amenities that are available in the suit schedule premises and the amentias provided in the premises for which the documents were produced by the plaintiff under Exs.A.1 to A-7. He compared the rents of the premises by comparing with the distance and arrived at the mesne profits. The Commissioner ought to have been verified the facilities available in the said premises and compare the same with the amenities provided in the suit schedule premises and then compared rents paid for the said premises to arrive at the mesne profits for the suit schedule premises. More over as already observed above, he has not got marked any documents through the witnesses examined before him and the witnesses also did not speak any thing about the amenities available in the said premises which leased out by them. The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs. _____________________ B. PRAKASH RAO,J. _____________________ P.DURGA PRASAD,J. Date:28.02.2011. Gk. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Gk.

Saturday, December 24, 2011

Miss.Kajal Aggarwal = On the question of injury to the appellant, the appellant has alleged that now her popularity has increased and that other reputed companies including multi-national companies have approached her. Because of the continued use of profile of the appellant by the respondent, there were unwarranted queries and that her future advertisement prospects are seriously affected. An actress/model lends his or her name/reputation earned for various products and the respondent used to exploit the profile of the appellant under the period of agreement. It is likely to cause confusion affecting advertisement prospects of the appellant. If the respondent continues to telecast their products through Televisions and other medias, it would cause irreparable injury to the appellant and it would be difficult to assess the damage suffered by her. Balance of convenience is only in favour of the plaintiff. In these circumstances, we are unable to endorse the views taken by the learned single judge that in view of clause 4 of the agreement the appellant cannot seek for injunction restraining the respondents from using her profile in the Ad films. The findings of the learned single Judge refusing injunction restraining the respondent from using the appellant's profile in Cinematograph films/ audio, video cassettes does not reflect the available materials and is liable to be set aside.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.No.403 of 2011 and M.P.No.1 of 2011 Miss.Kajal Aggarwal ... Appellant Vs. The Managing Director, M/s.V.V.D. & Sons P.Ltd., NO.6/18, Casa Major Road, Egmore, Chennai 600 008. ... Respondents Prayer: Original Side Appeal filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 4.11.2011 in O.A.No.787 of 2011 in C.S.No.635 of 2011 on the file of this Court. For Appellant : Mr.V.Manohar For Respondent : Mr.P.V.S.Giridhar for M/s.P.V.S.Giridhar Associates JUDGMENT R.BANUMATHI,J. Being aggrieved by refusal to grant interim injunction restraining the respondent from using the profile of appellant in the cinematograph film, audio, video cassettes and C.Ds in promoting the product of the respondent, the plaintiff has preferred this appeal. 2. Case of appellant/plaintiff is that she is an actress having good number of fans and the appellant agreed to endorse the products of the respondent/defendant. Case of appellant/plaintiff is that the respondent approached the appellant for promoting their products of hair oil and coconut oil through various mediums of advertisements like film, Television, magazines, hoarding, etc.. The parties have entered into an agreement dated 29.12.2008. As per the terms and conditions of the said agreement, the appellant agreed to be a model for promoting the objects of the respondent in mass media such as press, hoarding, package material etc. As per the terms, the said agreement is valid for a period of one year. Case of appellant is that the agreement entered with the respondent expired in December 2009 itself and thereafter the respondent has no manner of right to use the videos, photographs, printed materials or picture of the appellant in any of their products. The appellant has further alleged that even after expiry of the agreement, the respondents have been advertising their products using her pictures/name and the action of the respondent amounts to the violation of the breach of terms of the agreement and misused. Further case of appellant is that her popularity increased multi-fold and there is much demand for her presence as brand ambassador for the products of many reputed companies including multi-national companies and due to the conduct of the respondent, her reputation and commitment given to other companies was greatly affected. After issuing legal notice dated 12.9.2011, the appellant had filed the suit C.S.No.635 of 2011 claiming damages of Rs.2,50,00,000/- and also for permanent injunction restraining the respondents from using or publicising or projecting or promoting or advertising the materials with the presence of the appellant's profile or her presence in any form. Along with the suit, the appellant has filed Application in O.A.No.787 of 2011 seeking interim injunction restraining the respondent from using the image of the appellant in their products and also from advertising the appellant's endorsement/advertisement video in television Channels, websites, Internet or in any other form or media. 3. The respondent/defendant has entered appearance and filed counter contending that in December 2008, the appellant was an ordinary model and acting in Ad films and respondent has used the same for the purpose of marketing and promoting their products, particularly hair oil and coconut oil. According to the respondent, there is no convention or custom in the field of advertising that the advertisement would be permissible only for one year and as such the appellant's claim that respondent cannot use the materials produced in the year 2008 for more than a year is incorrect and untenable. The respondent holds copyright over Ad film and all rights in the said film vest in the respondent and that the appellant has no manner of right over the same since she has been paid the sum demanded by her for acting in the same. Stating that the appellant has not made out a prima facie case and claiming copyright in the promotional films/video cassettes, the respondent/defendant filed counter praying for dismissal of the application. 4. Before the learned single judge, respondent/defendant has undertaken that henceforth respondent will not use still photographs or other profile of the appellant on any of its products except with the written consent of the appellant. In so far as injunction against ad films is concerned, the learned single judge held that clause 4 of the agreement was to the effect that Ad films etc., would become the property of respondent/defendant to use at its discretion without any restriction and in view of clause 4 of the agreement, the appellant has no prima facie case to seek injunction against the use of ad films, being copyright of respondent/defendant. Recording the undertaking of the respondent, the learned single judge partly allowed the application restraining the respondent/defendant from using still photographs and other profile of the appellant on their products, print media, Internet, etc. Referring to clause 4 of the agreement,the learned single judge however held that the respondent/defendant shall be entitled to use the profile of the appellant in Ad films, subject to the final decision of the suit. 5. Challenging the impugned order, the learned counsel for appellant contended that as per clause 9 of the agreement, the agreement was valid only for particular period from 29.12.2008 to 28.12.2009 and only clause 9 will prevail. It was further submitted that when the respondent has given an undertaking that they will not use still photos and other profile of the appellant in their product, the same holds good in respect of Ad films also and while so the learned judge erred in saying that the appellant has not made out a prima facie case in respect of Ad film, video cassettes. Learned counsel would further submit that the entire agreement will have to be considered as a whole and the learned single judge ought to have held that the respondent has no right to exploit the profile of the appellant in their product beyond one year. 6. Laying emphasis upon Clause 4 of the agreement, learned counsel for the respondent/defendant contended that clause 4 is governed by Copyright laws and there could be no restriction as to the time frame in using the Copyright. The learned counsel for respondent would further submit that the respondent is the owner of the copyright and clause 4 cannot be restricted by clause 9 of the agreement. In support of his contention, learned counsel placed reliance upon a decision of the Bombay High Court in the case of FORTUNE FILMS INTERNATIONAL VS. DEV ANAND AND ANOTHER, (AIR 1979 BOMBAY 17). 7. The points falling for consideration are: 1. By virtue of clause 4 of the agreement, whether respondent is entitled to use profile of the appellant in Cinematograph film, audio and video cassettes even beyond the period of one year. and 2. Whether the learned judge was right in saying that the plaintiff has not made out a prima facie case in respect of use of her profile in cinematograph film, video cassettes, etc., 8. The appellant had entered into agreement on 29.12.2008 and it was agreed that the agreement shall be for a period of twelve months from 29.12.2008 to 28.12.2009. It is not disputed that the appellant has entered into an agreement with the respondent agreeing that her pictures/profile be used for promoting the products of respondent for a period of one year through various media of advertisement like magazines, Hoardings, packaging material, films, television etc., 9. Clause 2 of the agreement dated 29.12.2008 contained a non-competitive clause i.e., to the effect that the appellant will not be model for another Hair oil and Coconut oil brand for a period of twelve months from the date of agreement. Clauses 3 and 4 of the agreement reads as follows:- "3. That the Party of the Second Part agrees that her picture and signature may be used in any other mass media such as Press, hoarding, Packaging materials, etc., and any other promotion material created by the Party of the First Part. 4. That the Cinematography Film, Audio, Video Cassettes, CDs and or any other promotional material in the medium so developed between both the Parties will be the copyright of the Party of the First Part." 10. Before the learned trial judge, respondent/defendant has undertaken that henceforth respondent will not use still photographs or other profiles of the appellant on any of its products. Even according to the respondent/defendant, when the still photographs or other profiles of the appellant is not to be used for any of their products beyond one year, it is preposterous to contend that clause 9/ time restriction will not extend to video cassettes/cinematograph film and other videocassettes. 11. Laying emphasis upon the expressions used in clause 4 of the agreement "..Cinematograph film, Audio, video cassettes or any other promotional material in the medium so developed between the parties will be the copyright of the Party of the First Part (respondent)", learned counsel for respondent submitted that in clause 4 it has been made clear that the respondent will be the owner of the copyright and therefore Clause 4 is governed by copyright laws. According to respondent, the respondent will have the copyright of the cinematograph films/video cassettes for a period of sixty years and the copyright vested in the respondent cannot be restricted by the time limit stipulated in clause 9. 12. Contending that even though cine artiste performs in a cinematograph film, the copyright of the film would be vested with the producer, the learned counsel placed reliance upon decision of Bombay High Court in FORTUNE FILMS INTERNATIONAL VS. DEV ANAND AND ANOTHER, (AIR 1979 BOMBAY 17). In the said case, the plaintiff was a cine artiste of a Hindi motion picture produced by the 1st defendant. In the agreement, the correspondence exchanged between the parties inter alia provided that the cine artiste would be paid remuneration of Rs.7 lakhs and it was further provided that the copyright in the cine artiste's work in the motion picture was to vest with the Cine artiste till full payment of the agreed amount was made to him. In the said case, as per the terms, the cine artiste claimed the copyright. Negativing the said contention of Cine artiste, after considering the scope of artistic work, the Bombay High Court held that the copyright does not recognise the performance of an actor, which is protected by the Copyright Act. In the said judgment, the Bombay High Court held as under: "22. We now have to consider whether the performance of the cine artiste would fall within the definition of "cinematograph film" to be found in Sub-section (f) of Section 2. The definition only protects the film as well as the sound tract which is married to the film proper (i.e. the visual sequence). The copyright in the entire film may cover portions of the film in the sense that the owner of the copyright in the film will be entitled to the right in portions of the film; but this idea or concept cannot be extended to encompass an idea that there would be one owner of the cinematograph film and different owners of portions thereof in the sense of performers who have collectively played roles in the motion picture. In this connection reference may be made to Indian Performing Right Society Ltd. v. Eastern India Motion Picture Association, (1977) 3 SCR 206. In paragraph 21 of the report Krishna Iyer J. in an aside (as expressly indicated in paragraph 20) refers to cinematograph film in the following words: "A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more than long strips of celluloid, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but Section 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwithstanding its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film ....." 23. These words, however, do not take the case of the cine artiste any further. The question is: whether he has any copyright in his performance? If there is and it is covered by the definition of 'work' to be found in Sub-section (y) of Section 2, then it will be protected notwithstanding that the copyright in the entire film, the composite work, may vest in the producers. If, however, the performance of the cine artiste does not satisfy this definition, then there is no question of any dichotomy and co-existence, since there is no 'work' in the cine artiste's performance which is protected by the Act. In the view that we have taken of the definition of "artistic work", "dramatic work" and "cinematograph film", it would appear that the Copyright Act, 1957, does not recognise the performance of an actor as 'work' which is protected by the Copyright Act. ..... 13. The facts of the above case stand entirely on different footing and the above decision is not applicable to the case on hand. In the present case, we are concerned with the commercial use of the profile. The video films with the use of the appellant's picture/profile promoting the products of the respondent. 14. "Copyright means all the rights conferred by the Copyright Act, 1957 upon its order in respect of its literary, dramatic or artistic work in respect of a cinematograph film or record. It is the expression of thought or information in some concrete form, which is protected and not the ordinary thought or information. As per Section 17 of the Copyright Act, the author of the work shall be the first owner of the copyright. Provisos to Section 17 carve out the exceptions to the general rule. 15. As per proviso (a) to Section 17, where the author makes:- (a) a literary, dramatic or artistic work, (b) in the course of his employment by, (c) the proprietor of a newspaper, magazine or similar periodical, (d) under a contract of service or apprenticeship, (e) for the purpose of publication in a newspaper, magazine or similar periodical, and, if all the above mentioned conditions are fulfilled, and (f) there is no agreement to the contrary, then only in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or the copyright relates to the reproduction of the work for the purpose of its being so published, the said proprietor shall be the owner of the copyright; but, in all other respects, the author shall be the first owner of the copyright; 16. As per proviso (b) to Section 17, Subject to the provisions of Clause (a) of section 17, that is, if the provisions of Clause (a) have no application, then, where - (a) (i) a photograph is taken, or (ii) a painting or portrait is drawn, or (iii) an engraving or a cinematography film is made, (b) for valuable consideration at the instance of any person, then subject to the provisions of Clause (a) of this section, that is, unless the case falls under Clause (a) and in the absence of a contract to the contrary, such person shall be the first owner of the copyright therein, but, in all other cases, the author shall be the first owner of the copyright. 17. As per Section 17, proviso(c), where - (a) the author makes a work, (b) in the course of his employment, (c) under a contract of service or apprenticeship, and (d) the case does not fall within Clause (a) or Clause (b) of the section, (e) and there is no agreement to the contrary, the employer shall be the first owner of the copyright, but, in all other cases, the author shall be the first owner. Thus, the author or the compiler is the first owner of the copyright, but if (a) he is employed by another under a contract of service, and (b) the compilation is made in the course of the employment and (c) If there is no agreement to the contrary the employer is the first owner of the copyright. 18. For proper appreciation of the provisos to Section 17, we may usefully extract some of the illustrations given in T.R.Srinivasa Iyengar's Commentary on The Copyright Act, Seventh Edition, 2010, at page 186, which reads as under: ..... (3) A makes an artistic work in the course of his employment by B, the proprietor of a magazine, under a contract of service, for the purpose of publication in the magazine. No agreement is made between A and B with regard to the copyright in the work. B is the first owner of the copyright in the work insofar as the copyright relates to the publication of the work in any magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published. But, in all other respects, A is the first owner of the copyright in the work. (4) A makes an artistic work or a cinematograph film for Rs.15,000 at the instance of B. There is no agreement between A and B with respect to the copyright in the work. B is the first owner of the copyright in the work or the film. (5) cinematography film producer A, engages on contract of service for valuable consideration B, C and D as music composers and sound recorders for his film. The copyright in music and sound recorded on the sound tracts of the film vests in the producer A, and he is the first owner of the copyright, in the absence of any contract to the contrary. (5) A makes a work in the course of his employment under a contract of service with B. There is no agreement between the parties with respect to the copyright in the work. B is the first owner of the copyright. By perusal of the above various illustrations, it is seen that the emphasis is in the absence of contract to the contrary . 19. In the case on hand, the appellant, being the model for promoting the products of the respondent, was under the contract of service, of course, the work/video film/video cassette having been produced by the respondent shall be the work of respondent. As per proviso (c) to Section 17, the respondent will be the owner of the copyright only in the absence of any agreement to the contrary. As pointed out earlier, the appellant had entered into contract with the respondent as per which the agreement shall be in force only for a period of twelve months. When the agreement is only for a period of one year, claiming copyright over the cinematography films, video cassettes, can the respondent use the profile of the appellant in cinematography film, video cassettes beyond one year is the point for consideration 20. The terms of the contract will have to be read as a whole. The intention of the parties has to be ascertained from the recitals in the agreement. The recitals of the agreement, in particular, clauses 3 and 4 will have to be read in the light of clause 9 of the agreement, which stipulates that the agreement is for a period of one year. The merits of the contention of the respondent that clause 4 is not to be restricted by the stipulated time in clause 9 could be gone into only at the time of trial when the parties adduce oral and documentary evidence. In our considered view, both clauses 3 and 4 will be governed by clause 9 of the agreement i.e., the right of the respondent to use the picture/profile of the appellant in their advertisements/cinematograph film/video cassette, C.Ds etc., would be valid only for a period of one year. The learned single judge did not keep in view clause 9 of the agreement. The learned single Judge was not right in saying that the appellant has no prima facie case in respect of cinematograph film/video cassettes. 21. The underlying idea of commercial advertisements/ video film is to promote the product of the manufacturer/promoter. The manufacturer/promoter employs a model/actress and uses their profile for endorsing their products and thereby aiming to increase their marketing. While so doing, the manufacturer/promoter acquired limited right of using the reputation of the actress/model. In the advertisement films, though video is taken, ultimately, it is the reputation of the actor/model, which is exploited as per the terms of the contract. The manufacturer/marketing agency has no right to continue the use of picture/profile of the actress/model after the expiry of the period of contract. 22. On the question of injury to the appellant, the appellant has alleged that now her popularity has increased and that other reputed companies including multi-national companies have approached her. Because of the continued use of profile of the appellant by the respondent, there were unwarranted queries and that her future advertisement prospects are seriously affected. An actress/model lends his or her name/reputation earned for various products and the respondent used to exploit the profile of the appellant under the period of agreement. It is likely to cause confusion affecting advertisement prospects of the appellant. If the respondent continues to telecast their products through Televisions and other medias, it would cause irreparable injury to the appellant and it would be difficult to assess the damage suffered by her. Balance of convenience is only in favour of the plaintiff. In these circumstances, we are unable to endorse the views taken by the learned single judge that in view of clause 4 of the agreement the appellant cannot seek for injunction restraining the respondents from using her profile in the Ad films. The findings of the learned single Judge refusing injunction restraining the respondent from using the appellant's profile in Cinematograph films/ audio, video cassettes does not reflect the available materials and is liable to be set aside. 23. In the result, the Original Side Appeal is allowed and O.A.No.787 of 2011 in C.S.No.635 of 2011 is allowed in toto. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed. usk To The Sub Assistant Registrar, Original Side, High Court, Madras

Monday, December 19, 2011

HINDU SUCCESSION ACT, 1956: ss. 6 and 8 - Coparcenery property in the hands of sole coparcener - On his death, shares claimed by his daughters, children of deceased daughter and the son born out of the second marriage - Held: The son would inherit the properties not as coparcener - Therefore, s. 8 would apply and not s.6 - Hindu Marriage Act, 1955 - ss.5 and 16 - Evidence Act, 1872 - s.50 Evidence Act, 1872 - s. 50 - Opinion of relationship - Factum of marriage - Held: Evidence of relatives was admissible not only from the point of view that they were the persons who could depose about the conduct of parties but they were also witnesses to various documents executed by the wife. The predecessor-in-interest of the parties, namely, `K', a coparcener along with his brother, on a partition which took place in 1941, was allotted the suit property. He married twice. From the first wife, namely, `P', he had three daughters, and from the second wife, namely, `Y', whom he was stated to have married in 1960, he had a son by name `D'. `K' died in the year 1969. In the year 1998 one of his daughters from the first wife also died. Two partition suits were filed - one by the children of K's deceased daughter, the appellants, claiming 1/3rd share and denying the second marriage of `K', and the other suit was filed by the two surviving daughters from the first wife and the son `D' from second wife. The trial court held that mother of `D' was validly and legally married to `K' and on that premise held that `K' and `D' formed a coparcenery and the appellants being the heirs and legal representatives of the daughter of `K' inherited 1/10th share in the properties left by him. The High Court upheld the judgment. In the instant appeals it was contended for the appellants that `Y' not being validly married to `K', her son `D' did not inherit any share in the property; and that since `D' was born after coming into force of the Hindu Succession Act, 1956, he was not a coparcener and, therefore, s.8 of the Act would apply and not s.6. =Allowing the appeals, the Court HELD: 1.1. Evidence in different forms may be adduced before the court; information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in such a situation, those who had the occasion to see the conduct of the parties may testify with regard to the information they have, from probably the conduct of the persons concerned. Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act. [Para 10 and 11] [47-D-G] Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on. 1.2. In the instant case, the evidences of two daughters of `K' were admissible evidence not only from the point of view that they were the persons who could depose about the conduct of `K' and `Y', but they were also witnesses to various documents executed by `Y'. The High Court has itself noticed the applicability of s.50 of the Evidence Act. In that view of the matter, the finding that `K' married `Y' need not be interfered with. [Para 11 and 12] [47-G-H; 48-A, D] 2.1. It is now well-settled that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. [Para 16] [50-B] Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567; Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75; Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355, relied on Eramma vs. Veerupana & Ors. AIR 1966 SC 1879, referred to 2.2. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between `K' and `Y' took place in 1960 and, as such, the said marriage was clearly hit by s. 5 of the Hindu Marriage Act. `D', therefore, would inherit the properties not as a coparcener. [Para 13] [48-E-G] 2.3. `D' was admittedly born after the coming into force of the Hindu Succession Act. However, the Hindu Marriage Act, carved out an exception to the matter of inheritance of children of such marriages by creating a legal fiction u/s 16 of the Hindu Marriage Act. Therefore, as on the date of death of `K' all his daughters as also `D' will take in equal shares being the relatives specified in Class I of the Schedule appended to the Hindu Succession Act. Therefore, the trial court as also the High Court were not correct in opining that `D' would be a coparcener and the appellants would inherit only 1/10th share in the said properties . The share of the appellants would be 1/3rd. [Para 13-15 and 19] [49-G-H; 53-D; 48-G] Case Law Reference: AIR 1978 SC 1557 relied on para 9 (2008) 1 SCALE 434 relied on para 9 (1986) 3 SCC 567 relied on para 16 2006 (10) SCALE 75 relied on para 17 2008 (2) SCALE 355 relied on para 17 AIR 1966 SC 1879 referred to para 18 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4818-4819 of 2009. From the Judgment & Order dated 16.11.2007 of the High Court of Karnataka at Bangalore in RFA No. 1403 of 2003 C/w 1404 of 2003. G.V. Chandrashekhar, N.K. Verma, Anjana Chandrashekar for the Appellants. S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N. Raghupathy for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4818-4819 OF 2009 ARISING OUT OF S.L.P. (C) NO. 5964-5965 OF 2008 M. YOGENDRA & ORS. ..... APPELLANTS VERSUS LEELAMMA N. & ORS. ..... RESPONDENTS JUDGMENT SINHA J. Leave granted. Interpretation of the application of the provisions of Section 6 of the Hindu Succession Act, 1956[hereinafter called for the sake of brevity as `the Act'] vis-`-vis Section 6 thereof is in question in this appeal. It arises out of a judgment and order dated 16.11.2007 passed by the High Court Karnataka at Bangalore in RFA No. 1403/2003 and 1404/2003 dismissing the appeals preferred by the appellants herein from a judgment and order dated 14.07.2003 in O.S. No. 305/2000 and O.S. No. 567/2001 passed by the Principal Civil Judge, Senior Division, Mysore between both the parties for a suit of partition. The two aforementioned suits for partition were filed - one by the appellants herein and the other by respondent Nos. 1,2 and 4 herein. One K Doddananjundaiah indisputably is the predecessor- in-interest of the plaintiffs of both the suits. He along with his own brothers rightly formed a coparcenery. In or about 1941, a partition took place in terms whereof the suit properties were allotted to him. He married twice. The name of his first wife although does not appear from the records it is stated at Bar that her name was Puttamma. He, however, married again in the year 1960, one Yashodamma. Through his first wife three daughters were born to him - Parvathamma, Leelamma and Kamalamma. Dinesh, the original respondent No. 4 is said to have been born to K Doddananjundaiah through Yashodamma on or about 16.4.1961. K Doddananjundaiah died on 11.09.1969. Appellants herein filed a suit for partition against Leelamma, Kamalamma and Dinesh for partition claiming 1/3rd share in the suit property. Inter alia, on the premise that some of the joint family properties were not included therein Neelamma, Kamalamma and Dinesh filed another suit for partition. Before the learned trial court, where both the suits were heard together, the appellants herein raised a contention that Yashodamma was not married to K Doddananjundaiah. A specific issue was framed. The learned trial court, however, principally relying on or on the basis of the admission made by Neelamma and Kamalamma that Dinesh was their brother and marriage had taken place between their father and Yashodamma and also some other documents including birth certificate and a settlement deed came to the conclusion that Yashodamma was validly and legally married to K Doddanandjundaiah. Inter alia, on the premise that K Doddananjundaiah and Dinesh formed a joint coparcenery property, the learned trial judge opined that the appellants herein being the heirs and legal representatives of N. Parvathamma who had expired on 15.09.1998 inherited 1/10th share of the properties left by K Doddananjundaiah. Two appeals were preferred thereagainst by the appellants. The High Court by the reason of the impugned judgment upheld the said judgment and decree passed by the trial court. Before us, Mr. G.V. Chandrashekhar, the learned counsel appearing on behalf of the appellants raised two contentions:- (i) Yashodamma being not married to K Doddananjundaiah and in any event not validly married, Dinesh did not inherit any share in the properties. (ii) In any event, in view of the fact that he was born after coming into force of the Hindu Succession Act, 1956 he was not a coparcener. Section 8 of the Hindu Succession Act shall apply and not Section 6 thereof. Mr. Bhat, the learned counsel appearing on behalf of the respondents on the other hand contended:- (a) a concurrent finding of fact having been arrived at that Yashodamam was validly married with K Doddananjundaiah particularly having regard to the admission made by Neelamma and Kamalamma to the detriment of their interest, no interference therewith is warranted by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India. The properties at the hands of K Doddananjundaiah being a coparcenery property, Dinesh became a coparcener. (b) on his birth his status continued to be that of a coparcener and the status being that of a co parcener, Section 6 of the 1956 Act shall apply and not Section 8 thereof. Before the learned trial Judge, the appellants adduced voluminous documents in regard to the factum of marriage by and between K Doddananjundaiah and Yashodamma. One of the documents upon which reliance was placed by the trial judge was a photograph taken at the time of death whereas P.W. 1 declined to identify the persons in the photograph (Ex. D5) when he was confronted therewith. D.W. 1 - Neelamma not only identified the persons in the photograph as that of her father and Yashodamma as also Dinesh. The learned trial judge relied on the said documents for the purpose of arriving at a conclusion that Yashodamma was married with K Doddananjundaiah. Another important document upon which reliance was placed was a deed of settlement dated 16.4.1971 executed by Yashodamma in respect of some of the properties by K Doddananjundaiah in favour of Dinesh. It was a registered document. Yashodamam was appointed as a guardian as Dinesh was minor. Therein also Dinesh was described as son of K Doddananjundaiah. At that point of time, no challenge was done to the execution of the said document. It is also of some significance to notice that Kamalamma was a witness to the said deed at the time of presentation thereof before the registering authority. In the signed portion of the said documents also relation between the parties was clearly stated. It was furthermore, recited therein that Kamalamma had been looking after Dinesh at Bangalore and she had been fostering him. Leelamma had also been appointed as guardian for minor Dinesh. The learned trial judge as also the High Court furthermore, relied upon the evidence of Neelamma and Kamalamma in terms of the provisions of Section 50 of the Evidence Act. Before the trial court two birth certificates of Dinesh were filed showing the name of father of Dinesh which was shown as Nanjundaiah and in the other which was produced by the respondents as Dodammaiah. The trial court gave sufficient and cogent reasons to arrive at a finding of fact that the death certificate produced by the respondent was the correct one. Apart from it, various other documents were filed to show that there in the names including the school records to show that the name of K Doddananjundaiah appeared as father of Dinesh. The aforementioned finding of fact has not been disturbed by the High Court. The High Court, however, with regard to the document which was marked as Exhibit D-3 being a lagnapatrika opined as under:- "At the outset it is worth observing that it is not in dispute that the schedule properties were the ancestral properties of late K. Doddananjundaiah that Puttamma was the wife of K. Doddananjundaiah and through her there were thre daughters by name N. Parvatamma, N. Neelamma and N. Kamalamma. The important dispute in this case is whether there is valid marriage between K. Doddananjundaiah and his second wie Yashodamma. Ex. D-3 lagna patrika is one of the documents produced by the defendants to show that there is valid marriage between K. Doddananjundaiah and Yashodamma. This document lagna patrika is not signed by the scribe, the parties to it and the same is dated nil. In this document, the lagna patrika the marriage date is specified as Monday, the 29th March, 1960. On comparison with the calendar for the relevant year the marriage day, 29.03.1960 falls on Tuesday and not on Monday. It is also an admitted fact that Hindus will not celebrate auspicious events like marriage on an inauspicious day like Tuesday. In this document, it is specified that Sunday the 28th February 1960 is the day of performance of certain poojas like devatha karya and the day of marriage. For these reasons, Ex. D-3 the lagna patrika creates a suspicion with regard to the marriage between K. Doddananjundaiah and Yashodamma and the same cannot be relied on." Submission of Mr. Chandrashekhar is despite arriving at the said finding which clearly proves that no marriage had taken place, the High Court committed a serious illegality invoking the provisions of Section 50 of the Indian Evidence Act. It was urged that Section 50 of the Evidence Act would be available to a party when no direct evidence is available to prove or dispute the factum of marriage. In any event, the presumption which may be raised in terms of Section 50 of the Evidence Act read with 114 thereof is a rebuttal presumption. The learned counsel strongly relied upon, in this regard, a decision of this Court in Badri Prasad v. Dy. Director of Consolidation & Ors. [AIR 1978 SC 1557] Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434. In Badri Prasad's case (supra) this Court held as under:- "For around 50 years, a man and a woman as the facts in this case unfold, lived as husband wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg for the petitioner, that long after the alleged marriage evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave petitions are dismissed." Almost the same view has been taken by this Court in Tulsa's case (Supra) wherein it is stated: "14. This court in Gokalchand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co- habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption ;which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them." We, however, are of the opinion that in this case in view of the concurrent findings of fact arrived at by two courts, proof of marriage of K Doddananjundaiah and Yashodamma has sufficiently been established. Before the Court, evidence in different forms may be adduced. Information evidence may be one of them. But the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the Court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in the aforementioned situation, the information of those persons who had the occasion to see the conduct of the parties they may testify with regard to the information they form probably the conduct of the persons concerned. Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act. Once it is held that the evidence of Neelamma and Kamalamma were admissible evidence not only from the point of view that they were the persons who could depose about the conduct of Dodananjundaiah and Yashodamma. So far as their status is concerned without keeping in view the close relationship were also witnesses to various documents executed by Yashodamma. The evidence in this behalf in our opinion is admissible. The learned trial judge has noticed and relied upon a large number of documents. It has not been contended before us by Mr. Chandrashekhar that those documents were not admissible in evidence. Some of the documents being registered documents would rest their own presumption of correctness. School records could be admissible in evidence in terms of Section 35 of the Indian Evidence Act. Only because the High Court could find out certain discrepancies in the lagnapatrika the same in our opinion was not a conclusive proof to reverse the finding of the learned trial court. The High Court has itself noticed that the applicability of the covenants of Section 50 of the Indian Evidence Act having regard to the evidence have been brought on record. In that view of the matter, we are of the opinion that the finding that K Doddannanjundaiah married Yashodamma need not be interefered with. The question which now survives for our consideration is the provisions of Sections 6 and 8 of the Hindu Succession Act. The said Act was enacted to amend and codify the law to inherent succession among Hindus. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between K Doddananjundaiah and Yashodamma as noticed from the findings arrived at by the courts below took place sometime in April 1960. If that be so, the said marriage was clearly hit by section 5 of the Hindu Marriage Act. Dinesh, therefore, would inherit the properties not as a coparcener. The Hindu Marriage Act, however, carved out an exception to the matter of inheritance of illegitimate children stating:- "16. Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." By reason of the said provision a legal fiction has been created as it then stood. We, therefore, agree with the submission of Shri Chandrashekhar that Dinesh would not be a coparcener with K Doddananjundaiah. Even, otherwise, the provisions of the Hindu Succession Act provides about an easy change from the old Hindu Law. The provisions of the 1956 Act shall prevail over the Hindu Law which were existing prior thereto. Section 8 of the Hindu Succession Act provides for general rules of succession in the case of males. It reads as under:- "8. General rules of succession in the case of males - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) if there is no agnate, then upon the cognates of the deceased." As on the date of death of K Doddananjundaiah through all his daughters as also Dinesh they will take in equal shares being the relatives specified in Clause (i) of the Scheduled appended to the Act. Dinesh was admittedly born after the coming into force of the Hindu Succession Act, 1956. Mr. Bhat, however, would contend that the properties at the hands of K Doddananjundaiah which were allotted to him in partition which took place between him and his brother in the year 1948 would constitute coparcenary properties at his hands, with respect we cannot persuade ourselves to agree with the said view which has been accepted by the courts below. It is now well-settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenery property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid. This aspect of the matter has been considered by this Court in Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567. This Court upon noticing the provisions of the Hindu Succession Act opined as under:- "It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is: is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view." It was furthermore held : "18. ....... Section 8 of the Hindu Succession Act, 1956 as noted before, laid down the scheme of succession to the property of a Hindu dying intestate. The Schedule classified the heirs on whom such property should devolve. Those specified in Class I took simultaneously to the exclusion of all other heirs. A son's son was not mentioned as a heir under Class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision. The right of a son's son in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". The Court further observed that in construing a Codification Act, the law which was in a force earlier should be ignored and the construction should be confined t the language used in the new Act. The High Court felt that so construed, Section 8 of the Hindu Succession Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestated after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons. It followed the Full Bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal." The question yet again came up before this Court in Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75 wherein it was clearly held : "22. The Act indisputably would prevail over the Hindu Law. We maynotice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu SuccessionAct, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus,l a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956." [See also Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355] Mr. Bhat, however, placed reliance upon the decision of this Court in Eramma v Veerupana And Ors. reported in AIR 1966 SC 1879 therein Ramaswami J. speaking for the Bench held that Section 8 of the Hindu Succession Act will have no retrospective effect. However, in the fact of that case Section 8 of this Act was held to be not applicable as therein the male died before the Act came into force. As would appear from the following: "(5) It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement o the Act. It is manifest that the language of S. 8 must be construed in the context of S. 6 of the Act. WE accordingly hold that the provisions of S.8 of the Hindu Succession Act are ;not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act. S.8 of the Act will have no application." For the aforementioned reasons, we are of the opinion that the learned trial judge as also of the High Court were not correct in opining that Dinesh would be a coparcener and the appellants would inherit only 1/10th share in the said properties. The shares of the plaintiffs would be 1/3rd therein. These appeals are allowed but in the circumstances with no costs. .......................J [S.B. SINHA] .......................J [DEEPAK VERMA] NEW DELHI JULY 29, 2009.

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 2 r/w s.151 - Partition suit - Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff's Advocate - Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff's advocate as a witness on ground that no reason therefor was assigned in the application - Justification of - Held: Justified - If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together - Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate - Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness - In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants - During this long interregnum, the defendants never objected to the appearance of the plaintiff's advocate by pointing out that he was interested in the subject matter of the suit - The prayer made by the defendants for being allowed to cite the plaintiff's advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 - Articles 226 and 227 - Interlocutory order passed by Subordinate Court - Challenge to - Exercise of powers under Arts. 226 and 227 - Scope - Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates - Relationship between lawyer and his client - Duty imposed upon an Advocate - Discussed - Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client - If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case - Principles of `uberrima fides' - Bar Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK', the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK' as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK' as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 - relied on. 2.1. The relationship between a lawyer and his client is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. [Para 12] [428-F-G] 2.2. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK' as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to `NRK' in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs- appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of `NRK' as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The Single Judge of the High Court ignored that the respondents had included the name of `NRK' in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. [Para 15] [430-G-H; 431- A-D] 2.4. If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 - relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s).2015 OF 2011 (Arising out of SLP(C)No.20821/2010) KOKKANDA B. POONDACHA AND OTHERS Appellant(s) VERSUS K.D. GANAPATHI AND ANOTHER Respondent(s) J U D G M E N T Leave granted. Whether the respondents (defendant Nos.5 and 6 in the suit filed by the appellants), could cite the advocate representing the appellants as a witness in the list filed under Order XVI Rule 1 (1) and (2) read with Section 151 of the Code of Civil Procedure (CPC) without giving an iota of indication about the purpose of summoning him in future is the question which arises for consideration in this appeal filed against order dated 24.02.2010 passed by the learned Single Judge of the Karnataka High Court whereby he set aside the order passed by the trial Court partly dismissing the application of the respondents. 2 Appellant Nos.1 to 3 and one Parvathy filed suit, which came to be registered as O.S. No.75 of 1996, for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by defendant Nos.2 to 4, who were, later on, transposed as plaintiff Nos.5 to 7 (appellant Nos.4 to 6 herein), was not binding on them. Defendant Nos.5 to 7 (including respondent Nos.1 and 2 herein) filed written statement on 19.2.1998. Respondent Nos.1 and 2 filed additional written statement on 9.8.2002. After two years and seven months, they filed an application dated 11.3.2005 under Order XVI Rule 1 (1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of Shri N. Ravindranath Kamath, Advocate, who was representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted leave to them to file the list of witnesses but rejected their prayer for permission to cite Shri N. Ravindranath Kamath as witness No.1. The reasons assigned by the trial Court for partially declining the prayer of respondent Nos.1 and 2 are extracted below: "......................While citing advocate of the opposite party as a witness, the defendants 3 3 and 4 ought to have given reason for what purpose they are citing him as a witness and examining him in their favour. Once the advocate for the opposite party is cited as a witness in the list, the opposite party losses precious service of his advocate. In that circumstances, the party will suffer. Under the circumstances, so as to know for what purpose the defendant no.2 and 3 are citing and examining the N.R. Kamath advocate for the plaintiff in their favour have to assign reason. The Court has to very cautious and careful while considering such an aspect of the matter of examining and citing the advocate for the opposite party in their favour. The Court has to determine as to whether the evidence of said advocate is material for the decision of the case or not? Unless defendant no.2 and 3 assigned reason in the application or in the affidavit as to why they are citing the advocate for the opposite party and examining in their favour, the application filed by defendant no.2 and 3 is not maintainable and the said application is not sustainable under law. In the above said Judgment, in para 2, it is clearly held that, "but appellants then filed a petition seeking permission to cite the advocate of the respondents as a witness". But herein this case, the defendant no.2 and 3 are not seeking permission to cite the advocate for the plaintiff as a witness. Defendant no.2 and 3 not only have to seek permission of this Court to cite the advocate for the Plaintiff as a witness, but also he has to give good reasons for what purpose he is citing him as a witness and examining in his favour. Without assigning any reasons and without seeking permission to cite the advocate for the Plaintiff as a witness in the witness list, application to that extent is not tenable and same is liable to be dismissed to that extent." The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing Shri N. Ravindranath Kamath as a witness was rejected. The learned 4 Single Judge allowed the petition and set aside the order of the trial Court by simply observing that reasons are not required to be assigned to justify the summoning of a particular person as a witness. Mrs. Kiran Suri, learned counsel for the appellants relied upon the judgment of this Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and argued that the order under challenge is liable to be set aside because the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order is vitiated due to want of jurisdiction or any patent legal infirmity in the exercise of jurisdiction and that refusal of the trial Court to permit the respondents to cite Shri N. Ravindranath Kamath as a witness had prejudiced their cause. She further argued that the respondents are not entitled to cite and summon as a witness the advocate representing the appellants because in the application filed by them, no justification was offered for doing so. In support of this argument, Mrs. Suri relied upon the judgment of this Court in Mange Ram vs. Brij Mohan (1983) 4 SCC 36. Shri S.N. Bhatt, learned counsel for the respondents argued that even though his clients had filed application belatedly, the trial Court was not justified in 5 declining their prayer for citing Shri N. Ravindranath Kamath as a witness merely because he was representing the appellants. Learned counsel submitted that at the stage of filing the list of witnesses, the plaintiffs or for that reason the defendants are not required to disclose the nature of the evidence to be given by the particular witness or its relevance to the subject matter of the suit etc. and the trial Court had grossly erred in not granting leave to the respondents to cite Shri N. Ravindranath Kamath as one of their witnesses. Shri Bhatt relied upon the judgment in Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and argued that even after amendment of Section 115, C.P.C., the High Court can, in exercise of supervisory power under Article 227, correct the error of jurisdiction committed by the Subordinate Court. We have considered the respective submissions. We shall first consider the question whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the respondents and the order passed by it has resulted in failure of justice. In Surya Dev Rai's case (supra), the two Judge Bench, after detailed analysis of the various 6 precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following:- "(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of 7 law, and (ii) a grave injustice or gross failure of justice has occasioned thereby." In Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), the Court again examined the scope of the High Court's power under Article 227 of the Constitution and laid down the following proposition: "Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court." The learned Single Judge of the High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the 8 Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. The next question which needs consideration is whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. In Mange Ram vs. Brij Mohan (supra), this Court interpreted Order XVI Rule 1 (1),(2) and (3) CPC and observed: "If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court." At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care 9 and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975 (for short, "the Rules"). Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, which regulate the duty of an advocate to the client, read as under: "12. An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. 13. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client's interests. 14. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgment in either engaging him or continuing the engagement. 15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to 10 any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence." An analysis of the above reproduced Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. In V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308, A.P.Sen, J. outlined the importance of the relationship of an advocate with his client in the following words: "Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-six, said in a speech, in 1864, that the first great quality of an advocate was 'to reckon everything subordinate to the interests of his client'. What he said in 1864 about 'the paramountcy of the client's interest', is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when 11 entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants." If the prayer made by the respondents for being allowed to cite Shri N. Ravindranath Kamath as a witness is critically scrutinised in the backdrop of the above noted statement on the duties of an advocate towards his client, we have no hesitation to hold that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to Shri N. Ravindranath Kamath in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs-appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of Shri N. Ravindranath Kamath as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from 12 the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The learned Single Judge ignored that the respondents had included the name of Shri N. Ravindranath Kamath in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. We may add that if the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insists that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. In the result, the appeal is allowed, the impugned 13 order is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. ........................J. (G.S. SINGHVI) ........................J. (ASOK KUMAR GANGULY) NEW DELHI, FEBRUARY 22, 2011.

Sunday, December 18, 2011

“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate. Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage void. Sons of the second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would be entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority”.


IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH 
AT HYDERABAD

FRIDAY, THE FOURTEENTH DAY OF OCTOBER
TWO THOUSAND AND ELEVEN

PRESENT

THE HON'BLE SRI JUSTICE K.C.BHANU


CIVIL MISCELLANEOUS APPEAL No. 1215 OF 2008

 


Between :

Sugunamma and others.                                     …APPELLANTS

      A N D

Contral Power Distribution 
Company of A.P. Ltd. and others.                     …RESPONDENTS

 


           THE HON’BLE SRI JUSTICE K.C.BHANU                

 

CIVIL MISCELLANEOUS APPEAL No. 1215 of 2008



JUDGMENT :


This Civil Miscellaneous Appeal under Section 384 of Indian Succession Act, 1925 is directed against the order, dated 29.10.2007 in O.P.No.3120 of 2004 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby, the Original Petition filed under Section 372 of the Act, originally against appellant No.1 and respondent Nos.1 and 8 /respondent Nos.1 to 3 and later impleading appellant Nos.2 to 5 /respondent Nos.4 to 7, for grant of succession certificate enabling respondent Nos.2 to 7 / petitioners to withdraw an amount of Rs.3,58,768/- along with accrued interest thereon and monthly pension from the office of respondent No.1 herein, was allowed.

2.       The appellants in the appeal are the respondent Nos.4 to 7, respondent Nos.1 and 8 in the appeal are respondent Nos.2 and 3 and respondent Nos.2 to 7 in the appeal are petitioners, before the trial Court.  For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the trial Court.

3.       The petitioners filed the Original Petition states as follows:
One Late Pentaiah was working as Lineman in Respondent No.2 - Central Power Distribution Company of Andhra Pradesh Limited, Hyderabad; that he died on 07.01.2002 due to Cardiac arrest; that petitioner No.1 is his wife, and petitioner Nos.2 to 6 are the children of petitioner No.1 born through him; that he nominated petitioner No.1 to receive the service benefits in case of his death while in service; that after his death, the petitioners approached respondent No.2 Company furnishing the details of the amount to her; that on 11.02.2002, the petitioners received a notice on behalf of respondent No.1 from the office of Sri M.Veeresham, Advocate, whereunder, respondent No.1 claimed to be the legally wedded wife of late Pentaiah having married him in the year 1987 and having begotten four children; that respondent Nos. 4 to 7 got impleaded subsequently claiming that they are entitled to receive the service benefits on the demise of late Pentaiah. 
          Late Pentaiah had never got married any other woman more specifically with respondent No.1 and that he always lived with her and other petitioners.  There was no reference to respondent No.1 during the life time of late Pentaiah.  Neither respondent No.1 nor her children ever came to the house of the petitioners and claimed their relationship with late Pentaiah.  The deceased married petitioner No.1 in the year 1970.  Even if the marriage with respondent No.1 in the year 1987 is to be accepted, it is a void marriage.  As there was no response from the department, the petitioners approached the Administrator General of Andhra Pradesh in C.A.No.93 of 2002 under Section 29 of Administrator General Act, 1963 for grant of letter of administration in respect of the assets of late Pentaiah against Respondent No.2 - Central Power Distribution Company, Hyderabad and respondent No.1. The Administrator General, however, closed C.A.No.93 of 2002 as it was beyond his pecuniary jurisdiction with a liberty to the party to approach appropriate Court of law for the relief. Respondent Nos.1, 4 to 7 are strangers to the family of the petitioners and late Pentaiah and are not entitled to any of the benefits. Hence, the Original Petition.

4.          Respondent No.1 filed counter-affidavit admitting that late Pentaiah was working as a Lineman in Respondent No.2 - Company, but, contending that the petitioners alone are not entitled to receive the service benefits of late Pentaiah.  She also denied that late Pentaiah nominated petitioner No.1 to be entitled to receive the service benefits in case of death of late Pentaiah while in service.  It was further contended that she approached the department with a request to pay the service benefits available on the death of late Pentaiah and also admitted to have issued a notice to the petitioners through her advocate on 11.02.2002 claiming herself to be the legally wedded wife of late Pentaiah having got married him in the year 1987 and having begotten four children.  She stated that late Pentaiah died in their house at Uppuguda.  She denied her marriage with late Pentaiah to be void.  She denied to be totally stranger to the family of the petitioners of the deceased and asserted to be the legally wedded wife of the deceased.  She further contended that herself and respondent Nos.4 to 7 are entitled to the benefits payable on the death of late Pentaiah.  It was further contended that the name of respondent No.1 and respondent Nos.4 to 7 were included in the nomination form on 6.8.1996.  She further contended that the relationship between petitioner No.1 and late Pentaiah are not cordial and that with the consent of petitioner No.1 only late Pentaiah married her and used to reside with  her.  It is also contended that the petitioners never objected for the marriage of late Pentaiah with respondent No.1 and late Pentaiah living with her.   

5.          Basing on the above pleadings, the following issues were framed for trial:
“1.     Whether the first respondent is the legally wedded wife of late Pentaiah?

2.                Whether respondent Nos.4 to 7 are the legitimate children of late Pentaiah and are entitled for the death benefits of the deceased Pentaiah?

3.                Whether the petitioners are alone entitled for the Succession Certificate and the pensionary benefits on the death of the deceased?”


6.          During trial, on behalf of the petitioners, P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.3, and on behalf of the respondents, R.Ws.1 to 4 were examined and Exs.B.1 to B.6 were got marked.

7.       The Trial court, after considering the oral and documentary evidence, allowed the Original Petition granting Succession Certificate to the petitioners to enable them to withdraw an amount of Rs.3,58,768/- along with the accrued interest thereon and the monthly pension from the office of respondent No.2 in the trial Court. Challenging the same, respondent Nos.1 and 4 to 7 filed the present appeal. 

8.          Learned Counsel for the appellants/respondent Nos.1 and 4 to 7 contended that Exs.B.3 to B.6 have not been objected when they were marked; that they show about the relationship of the appellants as the wife and children of late Pentaiah; that Ex.A.3 would clearly go to show that late Pentaiah gave a nomination to his Employer nominating appellant No.1 as his wife, and appellant Nos.2 to 5 as his children and those documents have not been taken into consideration by the trial Court; that under Section 16 of the Hindu  Marriage Act, 1955 (for short, ‘the Act’) even if the marriage is void, children born to the second wife will get status of legitimate children and hence, he prays to grant a share to appellant Nos.4 and 5, who are still minors.

9.       On the other hand, learned counsel for the respondent Nos. 2 to 7 / petitioners contended that Section 16 (1) of the Act will not come into operation unless the marriage is established between the parties; that there is no evidence of whatsoever to show that the marriage of the deceased Pentaiah was performed with Sugunamma i.e., Appellant No.1 herein in accordance with Caste custom; that the documents relied upon by the appellants do not give the legal status of wife with late Pentaiah and therefore, the trial Court after an elaborate consideration of evidence on record rightly granted succession certificate and that order needs no interference by this Court.

10.          Appellant No.1 claims to be the second wife of late Pentaiah and appellant Nos. 2 to 5 are children of appellant No.1 born claimed to be through late Pentaiah.  It is not in dispute that late Pentaiah worked as a Lineman in Respondent No.2 Company.  It is also not in dispute that he died on 07.01.2002 due to cardiac arrest.  It is also not in dispute that respondent No.2 herein filed an application before the Administrator General for grant of legal heir certificate.  On the point of pecuniary jurisdiction, that application was returned for presentation before appropriate Court.  The present Original Petition was filed by respondent Nos.2 to 7 before the trial Court for grant of Succession Certificate under Section 372 of the Hindu Succession Act, 1956.

11.     The appellants did not dispute that respondent No.2 is legally wedded wife, and respondent Nos.3 to 7 are the children born to respondent No.2 through late Pentaiah. The trial Court after considering the evidence available on record came to the conclusion that the marriage of Sugunamma/appellant No.1 with late Pentaiah has not been established and therefore, even the children of appellant No.1 cannot get the status of legitimate children as the marriage has not been established.

12.          Learned counsel for the respondent Nos.2 to 7 placed reliance on a decision reported in Smt Nimbamma V. Rathnamma[1], wherein it was held thus (para No.4):
“I have applied my mind to the contention of the learned counsel for the petitioner.  Even if in the Voters’ list under Ex.P.4, Nimbamma is mentioned as the wife, but from the evidence it is proved that prior his coming in to company with Nimbamma either by marriage or by illicit relationship whatsoever it may be, that will not give the revision-petitioner the status of wife when it is established that with Rathnamma he marriage 20 years ago or more than that and it is not established that deceased had divorced his wife Smt Rathnamma who is his first wife according to law, when it is not proved that deceased has got decree for divorce in the legal proceeding, divorcing Rathnamma prior to the martial relationship with the petitioner even if the said marriage with revision-petitioner might have been performed.  That, when the same was performed in the life-time of the first wife, i.e, when deceased –Shekaraiah had Smt Rathnamma, his first wife living, then the marriage if any, with Nimbamma was in violation of first condition as mentioned in Section 5 of the Hindu Marriage Act.  One of the conditions is that neither the spouse has his or her spouse living at the time of second marriage.  Section 11 declares that marriage performed in breach of Section 5 (i) and (iv) and (v) of the Act shall be null and void.  The effect of marriage being null and void is that it is non est and law does not recognize it and takes it that such a marriage has not been taken place.  Such provisions as Section 5 (i) and 11 of the Hindu Marriage Act render position of lady married with a person who had his spouse living at the time of second marriage to be that of a kept mistress and not that of a married wife and such lady is not entitled to succeed to the properties of that person such as the present deceased-Shekaraiah”.  

13.     He also relied on a decision reported in Mrs.Sudershan Karir and others V. The State and others[2], wherein it was held thus (para No.5):
“ …… The trial Court is perfectly right in observing that S.16(1) comes into operation only in a case in which a marriage is in fact proved to have taken place between two person, but which may be otherwise null and void as per the provisions of S.11.  S.11 provides for getting a marriage declared null and void on certain grounds as stated therein.  The present is not a case of a marriage having been performed between Smt Sudershan Karir and Sham Sunder Karir which may otherwise be declared or alleged to be null and void. The present is a case of no marriage between these persons. As such, 16 (1) does not come in aid to the case of the children born to Smt Sudershan Karir”.    

14.     He also relied on a decision reported in Ramkali and another V. Mahila Shyamwati and others[3], wherein it was held thus (para No.17):
“However, when a de jure or a de facto marriage is rendered null and void under Section 11 or 12 of the Hindu Marriage, 1955 or is otherwise found to be void, the statutory fiction envisaged under Section 16 of the Hindu Marriage Act, 1955 comes into play protecting the interest of a child born out of such a marriage conferring upon him the status of a legitimate child.  The condition precedent for making such a statutory presumption available however is that there must be either a de jure or a de facto marriage.  In this connection, it may further be noticed that this Court in its decision in the case of Reshamlal V. Balwant Singh, reported in 1994 Jab LJ 160 had clearly observed that the provision contained in Section 16 of the Hindu Marriage Act, 1955 has to be interpreted to mean that there must be a marriage, which would be hit by the provisions of the said Act.  In that case, it had been found that there was no marriage at all and therefore, the provision of Section 16 of the said Act could not be said to be available to the appellant”.

From the above decisions, it is clear that in order to invoke Section 16 of the Act it is a condition precedent that in a case in which a marriage is in fact proved to have taken place between two persons the children of such marriage shall be legitimate even if the marriage is void.

15.          R.Ws.2 to 4 were not shown to be present at the time of marriage of R.W.1 with late Pentaiah.  Even assuming for a moment that the evidence of R.Ws. 2 to 4 does not inspire confidence because of certain infirmities and improbabilities, the respondents produced Exs.B.3 to B.6, which would go to show about the relationship of the appellants with late Pentaiah. Similarly Ex.A.3 is the certified copy of order of the Administrator General, wherein it was observed that the Employer of late Pentaiah produced the nomination papers said to have been given on 06.08.1996, whereunder late Pentaiah has furnished the names of his family members.  In Ex.A.3 appellant No.1 was shown as wife, and appellant Nos.2 to 4 were shown as daughters of late Pentaiah.  So, when a statement is given by a person who is dead, then such statement is admissible with regard to the relationship between the parties under Section 32 (5) of the Indian Evidence Act, 1872 which reads as follows:
“When the statement relates to the existence of any relationship 1[ by blood, marriage or adoption] between persons as to whose relationship 1[ by blood, marriage or adoption]the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised or is made in will or deed relating to family affairs”.
Declarations by deceased regarding relationship made ante litem motam, are admissible to prove matters of pedigree.  Such declarations are receivable on the ground of necessity, better evidence of the facts being often unobtainable, and partly because the peculiar means of knowledge possessed by declarant, and his absence of interest to misrepresent, both the declarations with a prima facie probability of truth.  From the above provision, it is clear that statement made by deceased is relevant when they mutate to the existence of any relationship between persons as to whose relationship the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised.  
16.     It is not the case of respondent Nos.2 to 7 / petitioners before the Court below that late Pentaiah has not given any statement or declaration before his Employer nominating the appellants. The reference as made by the Administrator General has not been denied or disputed and respondent Nos.2 to 7 themselves produced the documents, which would clearly go to show that appellant No.1 is the wife and appellant Nos. 2 to 4 are the children of late Pentaiah.  In view of the fact that late Pentaiah was having first wife, another marriage if any, contacted by late Pentaiah is a void marriage under Section 11 Hindu Marriage Act, 1955.  The evidence of R.W.1 would go to show that late Pentaiah married her with the consent of P.W.1.  The evidence of R.W.1 coupled with recitals in Exs.B3 to B.6 and Ex.A.3 would clearly go to show that when P.W.1 was alive and her marriage with late Pentaiah was subsisting, late Pentaiah appears to have married again.  From the circumstances, it can be inferred that the marriage of appellant No.1 with late Pentaiah was performed and she had begotten three children out of the said wedlock.  In view of the fact that first marriage was subsisting, the second marriage of appellant No.1 with late Pentaiah is void.  In view of Section 16 (1) of the Act, the children born to the second wife though illegitimate, they can come within the definition of legitimate children and consequently, they are entitled to a share provided they are the minors.  The trial Court relied upon a decision in (AIR 2000 Supreme Court 735) wherein it was held thus:
“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate.  Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage void.  Sons of the second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would be entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority”.

In view of the above decision, it is clear that if the illegitimate children are minors they are entitled to terminal benefits.  It is not in dispute before this Court that appellant Nos.4 and 5 are still minors.  Appellant Nos.4 and 5 are entitled for a share with regard to the terminal benefits of the deceased.   

17.          Accordingly, the Civil Miscellaneous Appeal is partly allowed granting Succession Certificate to Appellant Nos.4 and 5 who are entitled for a share.  Appellant Nos. 4 and 5 are entitled to the terminal benefits of late Pentaiah in equal shares along with respondent Nos.2 to 7 as per law.  There shall be no order as to costs. 
       
                _______________
K.C. BHANU, J

OCTOBER 14, 2011

YVL




[1] AIR 1999 Karnataka 226
[2] AIR 1988 Delhi 368
[3] AIR 2000 Madhya Pradesh 288