whether High Court was justified in staying the proceedings in civil suit till the decision in criminal case.= Section 42 deals with relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41. It reads as under: "S.42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.-Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state."= In K.G. Premshanker3, the effect of the above provisions (Sections 40 to 43 of the Evidence Act) has been broadly noted thus: if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the Court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil suit till the decision of criminal case. Firstly, because even if there is possibility of conflicting decisions in the civil and criminal courts, such an eventuality cannot be taken as a relevant consideration. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (respondent nos. 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of the respondent nos. 1 to 4 in the criminal proceedings. 21. For the above reasons, appeal is allowed. The impugned order dated 24.11.2008 passed by the Division Bench of the Madhya Pradesh High Court is set aside. The proceedings in the civil suit shall now proceed further in accordance with law. The parties shall bear their own costs.

' 
REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4166 OF 2013
(Arising out of SLP(C) No. 12644 of 2009)




Guru Granth Saheb Sthan Meerghat Vanaras ...... Appellant


Vs.


Ved Prakash & Ors. ......Respondents


JUDGMENT




R.M. LODHA, J.


Leave granted.
2. The short question for consideration in this appeal by special
leave is 
whether High Court was justified in staying the proceedings in civil suit till the decision in criminal case.
3. It is not necessary to narrate the facts in detail. Suffice it
to say that the appellant filed an FIR (P.S. Case No. 8 of 2003) at
Dharampura Police Station against respondent nos. 1 to 4 for commission of
the offences under Sections 420, 467, 468 and 120B, IPC alleging that they
had executed a false, forged and fabricated will on 02.07.1997 in the name
of late Devkinandan Sahay with the intention to grab his property. It was
further alleged that based on the fabricated will, these respondents had
obtained a mutation order dated 24.11.1999 from the Tehsildar, Ajaygarh. On
completion of investigation in the above F.I.R., the challan has been
filed against the above respondents and trial against them is going on in
the Court of Judicial Magistrate, First Class, Ajaygarh, Panna (M.P.).
4. On 09.02.2004, the appellant brought legal action in
representative capacity against the respondents nos. 1 to 4 by way of a
civil suit in the Court of District Judge, Panna (M.P.) praying for a
decree for declaration of title, perpetual injunction and possession in
respect of disputed lands and for annulling the sale deed dated 14.08.2003
and the mutation order dated 24.11.1999. In the suit, reference of will
forged by the respondent nos. 1 to 4 has been made. The said suit has been
transferred to the Court of Additional District Judge, Panna and bears
Civil Suit No. 10A of 2006. The respondent nos. 1 to 4, who are defendants
in the suit, have filed their written statement on 19.06.2006. The trial
court has framed issues on the basis of the pleadings of the parties on
21.09.2007. On 21.04.2008, the defendants (respondent nos. 1 to 4 herein)
filed an application under Section 10 read with Section 151, CPC for
staying the proceedings in the civil suit during the pendency of above-
referred criminal case.
5. The Additional District Judge, Panna, by his order dated
21.04.2008 dismissed the application for staying the proceedings in the
suit.
6. The respondent nos. 1 to 4 herein challenged the order of the
Additional District Judge in the High Court in a writ petition under
Article 227 of the Constitution of India. The Division Bench of the Madhya
Pradesh High Court by the impugned order has set aside the order of the
Additional District Judge and, as noted above, has stayed the proceedings
in Civil Suit till the decision of criminal case. It is from this order
that the present civil appeal, by special leave, has arisen.
7. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellant, and Mr. K.G. Bhagat, learned counsel for respondent nos. 1 to 4.

8. A Constitution Bench of this Court in M.S. Sheriff & Anr. v.
State of Madras & Ors.[1] has considered the question of simultaneous
prosecution of the criminal proceedings with the civil suit. In paragraphs
14,15 and 16 (Pg. 399) of the Report, this Court stated as follows:

"14. . . . . . . . It was said that the simultaneous
prosecution of these matters will embarrass the accused. . . . .
but we can see that the simultaneous prosecution of the present
criminal proceedings out of which this appeal


arises and the civil suits will embarrass the accused. We have
therefore to determine which should be stayed.
15. As between the civil and the criminal proceedings we are
of the opinion that the criminal matters should be given
precedence. There is some difference of opinion in the High
Courts of India on this point. No hard and fast rule can be laid
down but we do not consider that the possibility of conflicting
decisions in the civil and criminal Courts is a relevant
consideration. The law envisages such an eventuality when it
expressly refrains from making the decision of one Court binding
on the other, or even relevant, except for certain limited
purposes, such as sentence or damages. The only relevant
consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit
often drags on for years and it is undesirable that a criminal
prosecution should wait till everybody concerned has forgotten
all about the crime. The public interests demand that criminal
justice should be swift and sure; that the guilty should be
punished while the events are still fresh in the public mind and
that the innocent should be absolved as early as is consistent
with a fair and impartial trial. Another reason is that it is
undesirable to let things slide till memories have grown too dim
to trust. This, however, is not a hard and fast rule. Special
considerations obtaining in any particular case might make some
other course more expedient and just. For example, the civil
case or the other criminal proceeding may be so near its end as
to make it inexpedient to stay it in order to give precedence to
a prosecution ordered under S. 476. But in this case we are of
the view that the civil suits should be stayed till the criminal
proceedings have finished."

9. The ratio of the decision in M.S. Sheriff1 is that no hard and
fast rule can be laid down as to which of the proceedings - civil or
criminal - must be stayed. It was held that possibility of conflicting
decisions in the civil and criminal courts cannot be considered as a
relevant consideration for stay of the proceedings as law envisaged such an
eventuality. Embarrassment was considered to be a relevant aspect and
having regard to certain factors, this Court found expedient in M.S.
Sheriff1 to stay the civil proceedings. The Court made it very clear that
this, however, was not hard and fast rule; special considerations obtaining
in any particular case might make some other course more expedient and
just. M.S. Sheriff1 does not lay down an invariable rule that
simultaneous prosecution of criminal proceedings and civil suit will
embarrass the accused or that invariably the proceedings in the civil suit
should be stayed until disposal of criminal case.
10. In M/s. Karam Chand Ganga Prasad and Another etc. v. Union of
India and Others[2], this Court in paragraph 4 of the Report
(Pg. 695) made the following general observations, "it is a well
established principle of law that the decisions of the civil courts are
binding on the criminal courts. The converse is not true." This statement
has been held to be confined to the facts of that case in a later decision
in K.G. Premshanker v. Inspector of Police and Another[3], to which we
shall refer to a little later.
11. In V.M. Shah v. State of Maharashtra and Another[4], while
dealing with the question whether the conviction under Section 630 of the
Companies Act was sustainable, this Court, while noticing the decision in
M.S. Sheriff1 in para 11 (pg. 770) of the Report, held as under:
"11. As seen that the civil court after full-dressed trial
recorded the finding that the appellant had not come into
possession through the Company but had independent tenancy
rights from the principal landlord and, therefore, the decree
for eviction was negatived. Until that finding is duly
considered by the appellate court after weighing the evidence
afresh and if it so warranted reversed, the findings bind the
parties. The findings, recorded by the criminal court, stand
superseded by the findings recorded by the civil court. Thereby,
the findings of the civil court get precedence over the findings
recorded by the trial court, in particular, in summary trial for
offences like Section 630. The mere pendency of the appeal does
not have the effect of suspending the operation of the decree of
the trial court and neither the finding of the civil court gets
nor the decree becomes inoperative."

12. The statement of law in V.M. Shah4, as quoted above, has been
expressly held to be not a good law in K.G. Premshanker3 .
13. In State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd.
and Others[5], this Court made the following statement in paragraph 3 (pgs.
87-88):
"3. It is settled law that pendency of the criminal matters
would not be an impediment to proceed with the civil suits. The
criminal court would deal with the offence punishable under the
Act. On the other hand, the courts rarely stay the criminal
cases and only when the compelling circumstances require the
exercise of their power. We have never come across stay of any
civil suits by the courts so far. The High Court of Rajasthan is
only an exception to pass such orders. The High Court proceeded
on a wrong premise that the accused would be expected to
disclose their defence in the criminal case by asking them to
proceed with the trial of the suit. It is not a correct
principle of law. Even otherwise, it no longer subsists, since
many of them have filed their defences in the civil suit. On
principle of law, we hold that the approach adopted by the High
Court is not correct. But since the defence has already been
filed nothing survives in this matter."

14. We may now refer to a three-Judge Bench decision of this Court
in K.G. Premshanker3. The three-Judge Bench took into consideration
Sections 40, 41, 42 and 43 of the Evidence Act, 1872 and also the decision
of this Court in M.S. Sheriff1 and observed in paragraph 32 of the Report
that the decision rendered by the Constitution Bench in M.S. Sheriff case1
would be binding wherein it has been specifically held that no hard and
fast rule can be laid down and that possibility of conflicting decision in
civil and criminal courts is not a relevant consideration.
15. Section 40 of the Evidence Act makes it plain that the
existence of any judgment, order or decree which by law prevents any
Courts from taking cognizance of a suit or holding a trial is a relevant
fact when the question is whether such Court ought to take cognizance of
such suit, or to hold such trial.
16. Section 41 provides for relevancy of judgments passed in the
exercise of probate, matrimonial admiralty or insolvency jurisdiction bythe Competent Court. 
It reads as follows :
"S. 41. Relevancy of certain judgments in probate, etc.,jurisdiction.-
A final judgment, order or decree of a competent
Court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away from
any person any legal character, or which declares any person to
be entitled to any such character, or to be entitled to any
specific thing, not as against any specified person but
absolutely, is relevant when the existence of any such legal
character, or the title of any such person to any such thing, is
relevant.
Such judgment, order or decree is conclusive proof-
that any legal character, which it confers accrued at the
time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such
person to be entitled, accrued to that person at the time when
such judgment, order or decree declares it to have accrued to
that person;
that any legal character which it takes away from any such
person ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so
entitled was the property of that person at the time from which
such judgment, order or decree declares that it had been or
should be his property."




17. Section 42 deals with relevancy and effect of judgments, orders
or decrees, other than those mentioned in Section 41. It reads as under:
"S.42. Relevancy and effect of judgments, orders or decrees,
other than those mentioned in section 41.-Judgments, orders or
decrees other than those mentioned in section 41, are relevant
if they relate to matters of a public nature relevant to the
enquiry; but such judgments, orders or decrees are not
conclusive proof of that which they state."

18. Section 43 provides that the judgments, orders or decrees other
than those mentioned in Sections 40, 41 and 42 are irrelevant unless the
existence of such judgment, order or decree is a fact in issue or is
relevant under some other provisions of the Evidence Act.
19. In K.G. Premshanker3, the effect of the above provisions
(Sections 40 to 43 of the Evidence Act) has been broadly noted thus: 
if
the criminal case and civil proceedings are for the same cause, judgment of
the civil court would be relevant if conditions of any of Sections 40 to 43
are satisfied but it cannot be said that the same would be conclusive
except as provided in Section 41. 
Section 41 provides which judgment would
be conclusive proof of what is stated therein. Moreover, the judgment,
order or decree passed in previous civil proceedings, if relevant, as
provided under Sections 40 and 42 or other provisions of the Evidence Act
then in each case the Court has to decide to what extent it is binding or
conclusive with regard to the matters decided therein.
 In each and every
case the first question which would require consideration is, whether
judgment, order or decree is relevant; if relevant, its effect. This would
depend upon the facts of each case.
20 In light of the above legal position, it may be immediately
observed that the High Court was not at all justified in staying theproceedings in the civil suit till the decision of criminal case.
Firstly,
because even if there is possibility of conflicting decisions in the civil
and criminal courts, such an eventuality cannot be taken as a relevant
consideration. 
Secondly, in the facts of the present case there is no
likelihood of any embarrassment to the defendants (respondent nos. 1 to 4
herein) as they had already filed the written statement in the civil suit
and based on the pleadings of the parties the issues have been framed. 
In
this view of the matter, the outcome and/or findings that may be arrived
at by the civil court will not at all prejudice the defence(s) of the
respondent nos. 1 to 4 in the criminal proceedings.
21. For the above reasons, appeal is allowed. The impugned order
dated 24.11.2008 passed by the Division Bench of the Madhya Pradesh High
Court is set aside. 
The proceedings in the civil suit shall now proceed
further in accordance with law. The parties shall bear their own costs.

............................J.
(R.M. Lodha)







............................J.


(Sharad Arvind Bobde)


NEW DELHI
MAY 1, 2013.

ITEM NO.1A COURT NO.4 SECTION IVA
[FOR JUDGMENT]

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).12644/2009
(From the judgement and order dated 24/11/2008 in WP No.5836/2008 of The
HIGH COURT OF M.P. AT JABALPUR)

GURU GRANTH SAHEB STHAN MEERGHAT VANARAS Petitioner(s)
VERSUS
VED PRAKASH & ORS. Respondent(s)
Date: 01/05/2013 This Petition was called on for Judgment today.
For Petitioner(s) Mr. Nagendra Rai, Sr. Adv.
Mr. Shantanu Sagar, Adv.
Mr. Smarhar Singh, Adv.
Mr. T. Mahipal,Adv.

For Respondent(s) Mr. Vineet Bhagat,Adv.

Hon'ble Mr. Justice R.M. Lodha pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice Sharad
Arvind Bobde.
Leave granted.
Appeal is allowed in terms of the reportable judgment.

(Rajesh Dham) (Renu Diwan)
Court Master Court Master
(signed reportable judgment is placed on the file)
-----------------------
[1] AIR 1954 SC 397
[2] 1970 (3) SCC 694
[3] (2002) 8 SCC 87
[4] (1995) 5 SCC 767
[5] (1996) 3 SCC 87

-----------------------
8

whether the suit was maintainable without seeking any consequential relief. Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession."......It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration."= A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest.= "......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree." In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs.

' 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NOs. 7605-7606 of 2004




Venkataraja & Ors. ... Appellants


Versus




Vidyane Doureradjaperumal (D) Thr.Lrs. & Ors ... Respondents






J U D G M E N T


Dr.B.S.Chauhan, J.


1. These appeals have been preferred against the impugned
judgment and order dated 12.12.2003 passed by the High Court of Madras
in Second Appeal Nos. 1536-1537 of 1991, by way of which the common
judgment and decree passed by the First Additional District Judge in
A.S. No. 198 of 1983 and A.S. No. 43 of 1988 were set aside, and the
suit O.S. No. 58 of 1982, was dismissed, holding that the suit filed
by the plaintiff, father of the appellant herein, is not maintainable.


2. Facts and circumstances giving rise to these appeals are
that:
A. The suit property i.e. House No. 9/39, Savaripadayatchi
Street, Nellithope, Pondicherry, originally belonged to the deceased
appellant/great grandfather Vengadachala Naicker, son of Ayyamperumal
Naicker. 
He donated the above-mentioned suit property on 13.12.1896
in favour of his minor grandsons Radja Row and Kichnadji Row, both
sons of Ponnusamy Naicker, and 
the said donation deed was registered
on 18.1.1897.
 In the deed, it was provided that the donees/grandsons
would only have a life estate, and that after their death, 
only their male legal heirs shall be entitled to the suit property, with the right of alienation.


B. In view of the fact that the donees were minors at that
time, their father Ponnusamy Naicker was appointed as the guardian, in
the said deed.


C. The donee Kichandji Row died issueless and 
hence, the other
donee Radja Row became the full usufructuary owner of the suitproperty.
Radja Row also died leaving behind his wife ThayanayagyAmmalle and his son Kannussamy Row. 
The said Kannussamy Row died
issueless leaving behind his mother Thayanayagy Ammalle and Kuppammalhis wife. 
After the death of Kuppammal, Thayanayagy Ammalle became
the sole inheritor of the property. 
Thayanayagy Ammalle subsequently
executed a sale deed dated 16.7.1959 in favour of Vedavalliammalle,
the first defendant.


D. As per the terms of the donation deed dated 13.12.1896,
after the death of Kannusamy Row, the suit property could only
devolve upon his male legal heirs. 
Since the deceased Radja Row did
not have any issue, the suit property had to go to the sole male
reversioner and surviving heir, i.e. Radja Row's cousin brother
Ramaraja, being the grandson of the donor Vengadachala Naicker.


E. On the basis of the aforesaid plaints, the
appellant/plaintiff filed a suit against the said first defendantVedavalliammalle 
before the erstwhile French Court of the Tribunal of First instance, for a direction that the plaintiff was in fact, the
heir of the deceased Radja Row, and also for a direction to the first defendant to not waste the suit property.


F. Immediately, after filing the said suit, the French Colony
of Pondicherry was merged with the Union of India. The Hindu
Succession Act, 1956 (hereinafter referred to as the 'Act 1956), had
been extended to the Union Territory of Pondicherry w.e.f. 1.10.1963.


G. The suit filed by the appellant/plaintiff was decided vide
judgment and decree dated 18.8.1965, wherein it was held that since
Thayanayagy Ammalle was still alive, the claim of the
appellant/plaintiff was premature. 
However, in the said suit, an
observation was made that the appellant/plaintiff was the legal heir to the deceased Radja Row.


H. Aggrieved, Vedavalliammalle/first defendant preferred an
appeal against the said judgment.
 However, Thayanayagy Ammalle did not
press the appeal, with regard to the finding of the court as to
whether the appellant/plaintiff was a legal heir to the deceased Radja Row, and 
contested only the appointment of the Commissioner, who had
been appointed to determine 
whether any repairs were necessary, in respect of the suit property.


I. The appellate court allowed the appeal vide judgment dated
2.2.1970, only to the extent of holding that no repairs were necessary
for the suit property. 
The said Thayanayagy Ammalle died on
30.5.1978.
 It was at this juncture, that the claim of the appellant
over the suit property was not accepted by the opposite parties. 
The
first defendant Vedavalliammalle and her husband, the second
defendant, thereafter leased out the suit property in favour of the
3rd to 9th defendants on 30.5.1979, and were receiving rent for the
same henceforth.


J. Defendant No.10 Jeyaraman, who was the husband and father
of respondent nos. 4 and 5 respectively, purchased the suit property
from defendant no.1 vide registered sale deed dated 26.4.1980.

K. The deceased-plaintiff i.e. father of the appellants, filed
suit O.S. No. 58 of 1982, in the Civil Court of Pondicherry for
declaration that he was the legal heir of the deceased Radja Row, and thus had a proper title to the suit property and for declaration that the sale deed dated 16.7.1959 executed by Thayanayagy Ammalle in favour of Vedavalliammal, was null and void as she had only a life estate and not an absolute title, to alienate the property.


L. The said suit was contested by respondents/defendants and
it was decided on 7.10.1983, by the Civil Court, which held that:
a) Since Kannussamy Row had died before the introduction of the Hindu Succession Act, and considering the Hindu Law
applicable in the French Territory of Pondicherry, after the
death of the sole male heir to the suit property, the wife
and the mother of the legal heir would have only usufructuary
right over the suit property and not an absolute title.
b) As per the above customary Hindu Law applicable in 1959, the
vendor Thayanayagy Ammalle had only a usufructuary right over the property, and not the absolute right to alienate the
same.
c) Therefore, the reversionary male heir was entitled to inherit
the property, being the sole heir of the original donor.
d) The defendants/respondents had not acquired the title by way
of possession/prescription.
e) The suit was not barred by res-judicata.


Though the court decided the question of title in favour of the
appellant/plaintiff, the trial court found that the
appellant/plaintiff had filed the suit only for declaration of his
right to the suit property, and since he had not asked for
consequential relief of delivery of possession, the suit was held to
be not maintainable and was dismissed.

M. Aggrieved, the appellant/plaintiff filed an appeal
challenging the said judgment and order dated 7.10.1983, before the
court of the District Judge, and 
the said appeal was allowed vide
judgment and decree dated 13.4.1989, 
observing that the sale deed had
been executed by Thayanayagy Ammalle in favour of defendant no. 1 on 16.7.1959, prior to the extension of the Hindu Succession Act to Pondicherry on 1.10.1963. 
The result of the same was that she had sold
only her life estate in the suit property, as she was only a life
estate holder and upon her death, the property devolved on the sole living reversionary. 
Further, it was held that, as the
appellant/plaintiff had filed a suit for declaration in respect of the
suit property in which there were tenants, 
it was not necessary for
the appellant to claim any consequential relief for the reason that
after obtaining such a declaration, appropriate relief could be
claimed under Pondicherry Non-Agricutural Kudiyiruppudars (Stay of Eviction Proceedings) Act of 1980 (hereinafter referred to as the 'Act 1980'). 
There was thus, no need for a separate prayer for recovery of
possession, as the same could be asked only under the Special
Enactment.
N. Being aggrieved, the respondents/defendants filed second appeals
before the High Court, and it was during the pendency of the said
appeals, that Vedavalliammal sold the suit property to respondent nos.
1 to 3 on 31.3.1993. In view thereof, they were also impleaded in
the appeal as respondents. The said appeals were decided by impugned
judgment and order dated 12.12.2003, wherein the High Court had held,
that Thayanayagy Ammalle had acquired the absolute title over the
property. As the first defendant Vedavalliammal had purchased the
suit property from the absolute owner Thayanayagy Ammalle vide sale
deed dated 11.7.1959, she had become the rightful owner, and the said
sale deed was not null and void. Also, in view of the fact that the
said Vedavalliammal had been in possession of the suit property for
over than 10 years, she had perfected the title to the suit property
by prescription, under the provisions of French Civil Code and as a
consequence thereof, the suit for declaration was not maintainable
without seeking the relief of possession.
Hence, these appeals.


3. Shri R. Venkataramani, learned senior counsel appearing for
the appellants has submitted that the High Court had committed an
error by holding that Thayanayagy Ammalle had acquired an absolute
title over the suit property, and that by selling the suit property to
Vedavalliammalle, who had purchased the suit property from her, vide
sale deed dated 16.7.1959, Vedavalliammalle, had become the absolute
owner of the suit property and that the sale deed (Ext. A-4) was not
null and void.
The courts below have recorded a finding that Thayanayagy
Ammalle was only a life estate holder and thus, had not acquired an
absolute title. The High Court has not given any reason whatsoever,
for reversing the said finding of fact. The said finding is perverse
being based on no evidence. In case such a finding goes, the sale deed
dated 16.7.1959 could not confer any title on the purchaser,
Vedavalliammalle. More so, the High Court had not correctly framed the
substantial question of law, rather it had framed entirely irrelevant
issues, such as, the prescription and issue of limitation. The High
Court had committed an error by holding that the suit for declaration
was not maintainable without seeking any consequential relief, when
the First Appellate Court has rightly held, that in a case where the
property had been in the possession of the tenants, and where there
were other means to recover the possession, there was no need for
seeking any consequential relief in that aspect. Thus, the appeals
deserve to be allowed.


4. Per contra, Shri R. Balasubramaniam, learned senior counsel
appearing for the respondents, has opposed the appeals contending that
seeking consequential relief was necessary in order to maintain the
suit for declaration as per the proviso to Section 34 of the Special
Relief Act, 1963 (hereinafter referred to as the 'Act 1963'). The
pleadings taken by the parties suggest, that the respondents had been
in physical possession of the property alongwith their tenants. They
were in exclusive possession of the same. Therefore, as no
consequential relief had been sought, the suit was not maintainable.
More so, the question of limitation was very relevant and has rightly
been dealt with by the High Court. The appeals lack merit, and are
liable to be dismissed.


5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.


6. Ramaraja claiming himself to be the reversioner, had filed
a suit against the purchaser Vedavalliammalle, which was decided in
1965, and the issue of nature of title, with respect to whether the
interest of Thayanayagy Ammalle was merely usufructuary or absolute,
was considered. The court had then come to the conclusion vide
judgment and decree dated 29.11.1965, that the same was pre-mature, as
the suit could not have been filed during the life time of Thayanayagy
Ammalle. In the suit O.S. No. 58 of 1982, undoubtedly, the contesting
respondents had also been shown as the residents of the suit property,
and relief had been claimed only for declaration that the plaintiff
was the legal heir of the deceased Kannussamy Row, the great grandson
of Venkatachala Naicker, having title to the suit property, and
further, for declaration that the sale deed dated 16.7.1959 was null
and void.
In para 4 of the written statement, it has been mentioned
that the respondents/defendants were living in the suit property
alongwith defendant Nos. 3 to 9, their tenants. In view of the
pleadings taken by the parties, a large number of issues were framed
by the trial court, including whether the plaintiff was the legal heir
of the deceased Kannussamy Row; whether the sale deed dated 16.7.1959
was null and void; and whether the plaintiff was entitled for the
declaration, as prayed for.


7. The trial court held, that Thayanayagy Ammalle had not
acquired absolute right and that the plaintiff therein was thus, the
reversioner. The sale deed dated 16.7.1959 was void. However, as the
property was in the possession of the respondents/defendants, and
consequential relief of delivery of possession was not asked for, the
suit was not maintainable.


8. Being aggrieved, the parties filed cross appeal suit Nos.
198/83, 21/88 and 43/88. All the aforesaid appeal suits were disposed
by a common judgment of the First Appellate Court, and the said court
held, that Vedavalliammalle was not residing in the suit property as
she was residing somewhere, and had rented the house to three
different tenants, with a total strength of about 26 members.
Therefore, defendant no.1 was not in possession of the suit property
even as early as 1969, and therefore, defendant no.10 also did not
have possession of the suit property.
In view of the fact that the tenants could have been
evicted subsequently by the appellant/plaintiff, resorting to the
provisions of the Act 1980, which had been extended upto 31.3.1990,
the suit was maintainable, and the trial court ought not to have
dismissed the said suit on the ground that appellant/plaintiff had not
sought consequential relief of recovery of possession.


9. The High Court having considered various points involved
therein held, that as per Article 2265 of the French Civil Code 1908,
a person who had acquired an immovable property in good faith, and
under an instrument which was on the face of it capable of conferring
a title, would perfect his title by prescription to the land in ten
years, in the district of the Court of Appeal, when the owner lives in
the same district as that in which the land lies, and in twenty years
if the true owner lives outside such district.
Admittedly, the first defendant Vedavalliammalle had
purchased the suit property from the absolute owner Thayanayagy
Ammalle, as per sale deed dated 16.7.1959. Thus, she had become the
rightful owner, said sale deed being not null and void.


10. These appeals have raised the questions regarding the
interpretation of French Hindu Law, as to 
whether a Hindu widow having only a life estate, can be considered the absolute owner of a property, thus competent to transfer the said property; and 
secondly 
whether the suit was maintainable as the appellant/plaintiff had not sought any consequential relief.


11. So far as the issue no.1 is concerned, undoubtedly, the Act
1956 was extended to the Union Territory of Pondicherry only, at a much later stage. 
Various judgments of the French courts and the
Madras High Court dealing with the issue have been cited before us,
but in view of the fact that Shri R. Bala Subramaniam, learned senior
counsel appearing on behalf of the respondents, has fairly conceded
that such a Hindu widow could not acquire the absolute title, there is no occasion for us to enter into that controversy.
 Even otherwise,
the finding recorded by the High Court is not based on any evidence,
and no reason has been given by it to reverse the findings recorded by
the trial court as well as the First Appellate Court that Thayanayagy
Ammalle was only the life estate holder. 
We hold that the High Court
has erred in recording such a finding.


12. So far as the issue of adverse possession is concerned, in
our humble opinion, the High Court had no occasion to deal with the
same, in view of the earlier judgment of the trial court, wherein in
1965, it had been held that the suit filed by the appellant/plaintiff
was pre-mature, as he could not file the same during the life time of
Thayanayagy Ammalle.


13. Thus, the only relevant issue on which the judgment hinges
upon is, 
whether the suit was maintainable without seeking any
consequential relief.
In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC359, this Court dealt with a similar issue, and considered the
provisions of Section 42 of the Specific Relief Act 1877, (analogous
to Section 34 of the Act 1963), and held, that where the defendant was
not in physical possession, and not in a position to deliver
possession to the plaintiff, it was not necessary for the plaintiff in
a suit for declaration of title to property, to claim the possession.
While laying down such a proposition, this Court placed reliance upon
the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan
Dharam High School Trust v. Managing Committee, Sunder Singh Mullah
Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah
Mohammad Khan, AIR 1943 PC 94.


14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957,
this Court while dealing with a similar issue held:
"......It is also now evident that she was not in exclusive
possession because admittedly Keshav Chandra and Jagdish
Chandra were in possession. There were also other tenants
in occupation. In such an event the relief of possession
ought to have been asked for. The failure to do so
undoubtedly bars the discretion of the Court in granting
the decree for declaration." (emphasis added)


15. The facts in the case of Deo Kuer (Supra) are quite
distinguishable from the facts of this case, as in that case, the
tenants were not before the court as parties. In the instant case,
respondent nos. 3 to 10 are tenants, residing in the suit property.
The said respondents were definitely in a position to deliver the
possession. Therefore, to say that the appellants would be entitled to
file an independent proceedings for their eviction under a different
statute, would amount to defeating the provisions of Order II Rule 2
CPC as well as the proviso to Section 34 of the Act 1963. Thus, the
First Appellate Court, as well as the High Court failed to consider
this question of paramount importance.


16. The very purpose of the proviso to Section 34 of the Act
1963, is to avoid the multiplicity of the proceedings, and also the
loss of revenue of court fees. When the Specific Relief Act, 1877 was
in force, the 9th Report of the Law Commission of India, 1958, had
suggested certain amendments in the proviso, according to which, the
plaintiff could seek declaratory relief without seeking any
consequential relief, if he sought permission of the court to make his
subsequent claim in another suit/proceedings. However, such an
amendment was not accepted. There is no provision analogous to such
suggestion in the Act 1963.


17. A mere declaratory decree remains non-executable in most
cases generally. However, there is no prohibition upon a party from
seeking an amendment in the plaint to include the unsought relief,
provided that it is saved by limitation. However, it is obligatory
on the part of the defendants to raise the issue at the earliest.
(Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC
2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co.
Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory
decree, and observed that "mere declaration without consequential
relief does not provide the needed relief in the suit; it would be for
the plaintiff to seek both reliefs. The omission thereof mandates the
court to refuse the grant of declaratory relief."
In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this
Court while dealing with the issue held:
"......a declaratory decree simpliciter does not attain
finality if it has to be used for obtaining any future
decree like possession. In such cases, if suit for
possession based on an earlier declaratory decree is filed,
it is open to the defendant to establish that the
declaratory decree on which the suit is based is not a
lawful decree."




18. In view of the above, it is evident that the suit filed by
the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. 
The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. 
Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves.
As a consequence, the appeals lack merit and, are
accordingly dismissed. There is no order as to costs.


...................................J.
(Dr. B.S. CHAUHAN)






...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)


NEW DELHI;
April 10, 2013.














ITEM NO.1A COURT NO.7 SECTION XII
(For judgment)


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 7605-7606 OF 2004




VENKATARAJA & ORS. Appellant (s)


VERSUS


VIDYANE DOURERADJAPERUMAL(D)THR.LRS& ORS Respondent(s)


Date: 10/04/2013 These Appeals were called on for pronouncement
of judgment today.


For Appellant(s)
Mr. V.G. Pragasam,Adv.


For Respondent(s) Mr. Senthil Kumar, Adv.
Mr. M.A. Chinnasamy,Adv.
Mr. S. Muthukrishnan, Adv.


Mr. Senthil Jagadeesan,Adv.




Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon'ble Mr. Justice Fakkir
Mohamed Ibrahim Kalifulla.


The appeals are dismissed, in terms of the signed
reportable judgment.






| (DEEPAK MANSUKHANI) |(M.S. NEGI) |
| Court Master | Court Master |


(Signed reportable judgment is placed on the file)

that they will take appropriate proceedings against the tenant. made in revenue proceedings is not an admission of plaintiffs possession ?= application made by the respondent for obtaining exemption certificate under Section 88C, should have been accepted as evidence in favour of the plaintiff, viz. that they will take appropriate proceedings against the tenant. 6. The revenue proceedings do show that the defendant has made some such statements, but those statements were made while seeking exemption. The Civil Court had to decide on the basis of the material that was adduced in evidence by the plaintiff before it. The Trial Judge could not hold that the plaintiff was in possession of the suit property on the basis of the material provided. The evidence of the plaintiff herself shows that her father was an officer in the aforesaid company, her husband was an officer in Merchant Navy and she was required to go along with him and she never visited this particular area i.e. the suit property for a number of years.- If the plaintiff was in possession of a parcel of land and cultivating the land, she would have got the appropriate certificate under Section 32-G of the Bombay Tenancy and Agricultural Lands Act and claimed to be "protected tenant". The plaintiff failed to obtain that certificate also. That apart, if the plaintiff was in possession of the land and cultivating the same, as is contended by her, there would have been a number of documents which could have been produced and relied upon by her, like electricity bills, bills for payment of water charges, etc. and even for that matter, an affidavit or evidence of the neighbours could have been obtained and placed on record. But nothing of that kind was filed by the plaintiff and ultimately the suit was dismissed.

' 


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


SPECIAL LEAVE PETITION (CIVIL) NO. 28538 OF 2011




EDNA SUSHILA SAMUEL Appellant(s)
:VERSUS:
WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)








O R D E R


1. This special leave petition seeks to challenge the judgment
and order dated 8.7.2011 passed by learned Single Judge of the High
Court of Judicature at Bombay in Second Appeal No.257 of 2011. By
that judgment the learned Single Judge has left undisturbed the
decisions of the First Appellate Court as also of the Trial Court i.e.
Civil Judge, Senior Division, Pune rendered on 23.12.2010 in Regular
Civil Suit No.1109 of 2003.


2. Heard Mr. Amol Chitale, learned counsel appearing for the
petitioner and Mr. V.A. Mohta and Ms. Indu Malhotra, learned senior
counsel appearing for the respondents. Mr. Manish Pitale has appeared
for an intervenor.


3. The above referred suit was filed by the plaintiff-petitioner
seeking an injunction against the respondents on the basis of heralleged possession of the property concerned. 
The suit property is a
piece of land of about 10 acres, situate at Vadgaon Sheri, Taluka
Haveli, District Pune. 
The plaintiff relied upon the Revenue entries
from 1955 to 1998 and 
also the application made by the respondents to
get Exemption Certificate under Section 88-C of the Bombay Tenancy and
Agricultural Lands Act, 1948. 
Apart from that the plaintiff relied
upon the averments which the plaintiff had made in the plaint and some
statements of the defendant-respondent in the Revenue proceedings.


4. It is the settled position that when a tenancy matter is in
the Court, the Court decides the same on the basis of the evidenceadduced before it. 
In that process the issues are framed, documents
are exhibited, the revenue entries are examined and an appropriate
inference is drawn. 
The 7x12 extract of one year which has been
produced by the plaintiff-petitioner, shows the name of father of the
plaintiff in the other rights column. 
The name of the ancestor of the
respondent is also shown in the same column. 
This is the best document
relied upon by the plaintiff-petitioner. 
As against that, without
there being any other evidence which could be accepted by the Court,
the Trial Court held that the plaintiff-petitioner claims to have
possession of a parcel of land through her father who was an employee
in a company, known as "Bombay Bio Products". 
It is not the case of
the plaintiff-petitioner that the plaintiff was, in any way, the
tenant of the respondent inasmuch as there are no rent receipts relied
upon by the plaintiff.
 If the plaintiff was in possession of a parcel
of land and cultivating the land, she would have got the appropriate
certificate under Section 32-G of the Bombay Tenancy and Agricultural
Lands Act and claimed to be "protected tenant". 
The plaintiff failed
to obtain that certificate also. 
That apart, if the plaintiff was in
possession of the land and cultivating the same, as is contended by
her, there would have been a number of documents which could have been
produced and relied upon by her, like electricity bills, bills for
payment of water charges, etc. and even for that matter, an affidavit
or evidence of the neighbours could have been obtained and placed on
record. 
But nothing of that kind was filed by the plaintiff and
ultimately the suit was dismissed.


5. A question arises as to whether the Trial Judge has committed
any error and if so, which is that. 
To this, the submission of the
plaintiff-petitioner is that those revenue entries as well as the
application made by the respondent for obtaining exemption certificate
under Section 88C, should have been accepted as evidence in favour of
the plaintiff, viz. that they will take appropriate proceedings
against the tenant.


6. The revenue proceedings do show that the defendant has made
some such statements, but those statements were made while seeking
exemption. 
The Civil Court had to decide on the basis of the material
that was adduced in evidence by the plaintiff before it. 
The Trial
Judge could not hold that the plaintiff was in possession of the suit
property on the basis of the material provided. 
The evidence of the
plaintiff herself shows that her father was an officer in the
aforesaid company, her husband was an officer in Merchant Navy and she
was required to go along with him and she never visited this
particular area i.e. the suit property for a number of years.

7. Mr. Mohta, learned senior counsel appearing on behalf of the
respondents pointed out that the plaintiff was required to file
another suit bearing No.104 of 2010 against one Mr. Popatlal
Navalakha, who she claims to be her manager and who had also claimed
independent possession on a parcel of the land. It is seen that this
suit was for a permanent injunction and alternatively a prayer was
also made therein that the possession be given to the plaintiff. If
this is the position of the plaintiff in the other suit, it could not
be said that she was in possession when she sought possession from Mr.
Navalakha.




8. The land in question is a Ramoshi Watan land and the case of
the defendant is that one Bhivaji Galande, who was the predecessor of
the defendant, had purchased this land in auction and that is how
their claim to be in possession. The revenue certificate (which is a
7x12 extract) also mentions the State Government as owner and the name
of Galande in the other rights column. The Trial Court, therefore,
examined all these records and noted that the tenancy Court had held
that the plaintiffs were not tenants in the suit property. The Trial
Court has also referred to the fact that the suit filed against
Navalakha was filed in 1991 and therefore, the plaintiff was not in
possession at that particular point of time also. This being the
evidence, in our view, there was no occasion for the Trial Court to
grant any injunction as sought by the plaintiff. The Trial Court also
observed rightly that no documents were adduced by the plaintiff to
show that at present she was in possession and also making payment of
rent to the landlord defendant.


9. In view of these materials, the injunction could not have
been confirmed by the First Appellate Court as well as by the High
Court in the second appeal. We do not see any reason to interfere
with the impugned order passed by the High Court. The special leave
petition is dismissed. Needless to state that the interim orders
passed by this Court in special leave petition and the contempt
petition, stand vacated.


10. We may also note that one Balu Khandu Ramoshi had filed a
title suit, bearing No.636 of 2012, which is pending before the Joint
Civil Judge, Senior Division, Pune. Mr. Manish Pitale has appeared on
behalf of the aforesaid plaintiff by filing I.A No.6 of 2013. The
present proceedings are arising out of the suit for injunction filed
by the plaintiff Edna Samuel. Those proceedings filed by Balu Khandu
Ramoshi will be decided on their own merits. I.A No.6 of 2013 stands
disposed of accordingly.










CONTEMPT PETITION (CIVIL) NOS.103/2012 and 276/2012:


11. In view of the order passed by us in the special leave
petition above-mentioned, these contempt petitions are also disposed
of.




........................J
(H.L. GOKHALE)








........................J
(DIPAK MISRA)


New Delhi;
March 20, 2013.


















































ITEM NO.6 COURT NO.12 SECTION IX

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


Petition(s) for Special Leave to Appeal (Civil) No(s).28538/2011

(From the judgement and order dated 08/07/2011 in SA No.257/2011 of the
HIGH COURT OF BOMBAY)

EDNA SUSHILA SAMUEL Petitioner(s)

VERSUS

WAMAN KRISHNA GALANDE (D) THR.LRS. & ORS. Respondent(s)

(With appln(s) for vacation/variation of ad-interim order, exemption from
filing O.T., impleadment and office report)

WITH

CONMT.PET.(C) NO. 103 of 2012 in SLP(C) No.28538/2011

CONMT.PET.(C) NO. 276 of 2012 in CONMT.PET.(C) NO. 103/2012
(With application for exemption from filing O.T.)


Date:20/03/2013 These Petitions were called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE H.L. GOKHALE
HON'BLE MR. JUSTICE DIPAK MISRA



For Petitioner(s) Mr. Amol Chitale,Adv.
Ms. Pragya Baghel,Adv.


For Respondent(s) Mr. V.A. Mohta,Sr.Adv.
Mr. Indu Malhotra,Sr.Adv.
Mr. Prakash Vitthalrao Botre,Adv.
Mr. Pravin Satale,Av.
Mr. Anand Prakash Botre,Adv.
Mr. Ankur Gupta,Adv.
Mr. Rajiv Shankar Dvivedi,Adv.
Mr. Vanshdeep Dalmia,Adv.
Mr. Kush Chaturvedi,Adv.

-2-


In I.A. No.6/13 Mr. Manish Pitale,Adv.
Mr. Sunil Kumar,Adv.
Mr. Chander Shekhar Ashri,Adv.




UPON hearing counsel the Court made the following
O R D E R


Heard the learned counsel for the parties. The special leave
petition is dismissed in terms of the signed order. Needless to state
that the interim orders passed by this Court in special leave petition
and the contempt petition, stand vacated.
The contempt petitions are also disposed of in view of the
order passed in the special leave petition.




(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER

(Signed order is placed on the file)

Wakf Act, 1995: s.83(5) - Wakf Tribunal - Power of - HELD: Wakf Tribunal is deemed to be a civil court and has the same powers as are exercised by civil court under the Code of Civil Procedure while trying a suit or executing a decree or order - Civil courts are competent to issue injunctions in terms of Or. 39, rr. 1 and 2 and s.151 CPC - Similar orders can, therefore, be passed by the Wakf Tribunal also in suits that are legally triable by it - If the Wakf Tribunal, upon consideration of relevant facts and circumstances, comes to the conclusion that a case for grant of interim injunction has been made out, it shall be free to issue any such injunction - Code of Civil Procedure, 1908 - Or. 39, rr. 1 and 2 and s.151 - Injunctions. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 492 of 2003. From the Judgment & Order dated 24.01.2002 of the High Court of Judicature at Madras in CRP No. 1430 of 2001. K.V. Viswanathan, B. Ragunath (for Vijay Kumar) for the Appellants. K. Ramamoorthy, Hari Shankar K., Vikas Singh Jangra for the Respondents.

SYED MOHIDEEN & ANR.
v.
RAMANATHAPURA PERIA MOGALLAM JAMATH & ORS.
(Civil Appeal No. 492 of 2003)
JULY 21, 2010
[MARKANDEY KATJU AND T.S. THAKUR, JJ.]
2010 (8) SCR 777
The following order of the Court was delivered
ORDER
The application for substitution is allowed.
Heard learned counsel for the parties.
This appeal has been filed against the impugned order of the
High Court of Judicature at Madras dated 24th January, 2002
passed in C.R.P. No.1430 of 2001.
The facts in detail have been set out in the impugned order and
hence we are not repeating the same here.
Having gone through the impugned order, we noticed from
paragraphs 20 & 21 of the impugned order that the High Court has
only observed that certain points were not considered by the Wakf
Tribunal which should have been taken into consideration. Hence,
the High Court remanded the matter.
We agree with the aforesaid observations of the High Court and
see no reason to interfere with the same. We, however, may make
it clear that in terms of Section 83(5) of the Wakf Act, 1995 the
Wakf Tribunal is deemed to be a civil court and has the samepowers as are exercised by civil court under the Code of Civil
Procedure, 1908 while trying a suit or executing a decree or order.
The civil courts are in turn competent to issue injunctions in terms of
Order XXXIX Rules 1 and 2 and Section 151 C.P.C. Similar orders
can, therefore, be passed by the Wakf Tribunal also in suits that are
legally triable by it if a case for grant of such injunction or direction
is made out by the party concerned. These observations shall not,
however, be understood to mean that we are expressing any
opinion on whether a case for grant of an injunction had been made
out in the matter at hand. All that we wish to clarify is that if the
Wakf Tribunal upon consideration of all the relevant facts and
circumstances comes to the conclusion that a case for grant of
interim injunction has been made out it shall be free to issue any
such injunction. With these observations the appeal is dismissed.
The Tribunal shall take a view uninfluenced by any observations
made in this order or the order impugned before us. No costs.

Section 213. Right as executor or legatee when established. (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of a authenticated copy of the will annexed…………… (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.- Now by the Indian Succession [Amendment] Act, 1962, the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act.- We have shown above that it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 1.9.1870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside those territories and limits so far as they relate to immovable property situate within those territories and limits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Writ Petition (civil) 137 of 1997
Writ Petition (civil) 674 of 1998
PETITIONER:
CLARENCE PAIS & ORS.
 Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT: 22/02/2001
BENCH:
S. Rajendra Babu & R.C. Lahoti
JUDGMENT:
J U D G M E N TL...I...T.......T.......T.......T.......T.......T.......T..J
RAJENDRA BABU, J. :
 These two writ petitions have been filed challenging the
validity of Section 213 of the Indian Succession Act, 1925
(hereinafter referred to as the Act] as unconstitutional
and to restrain the Union of India from enforcing the
provisions thereof against the Indian Christians.
 In Writ Petition (C) No. 137 of 1997, petitioner No. 1
is an Indian Christian and a citizen of India. He has been
in the legal profession for about 48 years, and on account
of experience gained in having appeared in many probate
cases and had occasions to obtain probate of his fathers
Will, his experience has made him decide to file this writ
petition. Petitioner No.2 is a Catholic Association of
Dakshina Kannada, Karnataka. It is submitted that the
effect of taking out probate of a Will is to establish the
genuineness or validity of the Will and the grant of probate
is not a condition precedent to the vesting of the estate in
the executor in light of the provisions of Section 211 of
the Act. Section 211 of the Act provides for vesting of the
property in the executor or administrator, as the case may
be, of a deceased person in his legal representative for all
purposes. However, when the deceased is a Hindu,
Muhammadan, Buddhist, Sikh, Jaina or Parsi nothing contained
in the Act shall vest in an executor or administrator any
property of the deceased person, which would otherwise have
passed by survivorship to some other person. Section 213(1)
requires that no right as executor or legatee under a Will
can be established in a Court of Justice without obtaining
probate or letters of administration of the Will under which
such right is sought to be established. Section 57 of the
Act makes it clear that the provisions of that part which
are set out in Schedule III subject to the restrictions and
modifications specified therein, shall apply to all Wills
and codicils made by any Hindu, Buddhist, Sikh or Jaina
after the first September, 1870 who are originally residents
in the jurisdiction of the High Courts of Judicature at
Madras and Bombay or subject to the jurisdiction ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Lieutenant Governor of Bengal and to all such Wills and
codicils made outside those territories and limits so far as
relates to immovable property situate within those
territories or limits and to all Wills and codicils made by
any Hindu, Buddhist, Sikh or Jaina on or after the first day
of January, 1927 to which those provisions are not applied
by clause (a) and (b), provided that marriage shall not
revoke any such Will or codicils. In view of the aforesaid
provisions, there is compulsory requirement of probating a
Will to establish such a right by virtue of the provisions
of Section 213 which is made applicable and is restricted to
Indian Christians and certain other categories of persons
professing Hindu and other faiths. The contention of the
petitioner is that there is no rational or discernible basis
for making the requirement of probate necessary for only a
limited section of Indian citizens such as Indian Christians
excluding other sections. The Indian Succession Act, 1925
repealing the Indian Succession Act, 1865 was enacted by
Parliament with a view to consolidate the law applicable to
intestate and testamentary succession in India and, as a
consequence no intentional change in the law was made at
that stage. While no distinction is made with respect to
establishing a right to property of a person dying intestate
belonging to different communities and professing different
faiths, Christians alone are subjected to this requirement.
 In Writ Petition (C) No. 674 of 1998 petitioner is an
Indian Christian who belongs to Roman Catholic community
residing in the State of Kerala. The petitioner was the
sole beneficiary of a registered Will dated 15.12.1986
executed by his aunt Mrs. Lissa Jos Arakal owner of a flat
No. 5, Ashiana Apartment, Pitam Pura, Delhi. She was a
Christian and she remained unmarried till her death. Out of
love and affection towards the petitioner she executed a
Will on 15.12.1986 bequeathing her entire rights in respect
of the said flat in favour of the petitioner. She died on
9.8.1991 at Lourdes Hospital, Kochi. The petitioner
received a letter in August 1993 from the Secretary of M/s
Loyola Co- operative Housing Society, Ashiana Apartments,
Road No. 41, Pitam Pura, Delhi stating that the committee
of the Society had decided not to hand over the flat to him
without any court direction. The petitioner also informed
the Society not to transfer the said flat to any one else
other than himself. However, he received a reply from the
Society stating that Mr. Barley Arakal is the nominee of
the testatrix as per their record and as such since there is
a dispute regarding the property the status quo will be
maintained until further orders. It is stated that the
petitioner is not in a position to establish his legal right
over the property in question or to obtain any relief from
the court on account of the fact that he is a Christian who
is bound by the restriction provided under Section 213 of
the Act and since Section 213 of the Act comes in the way of
exercising his right, the petitioner is challenging the
validity of the said provision for identical reasons as set
forth in the connected writ petition. It is also brought to
our notice in these proceedings that in view of the harsh
procedure contemplated in the provisions under challenge the
Kerala Legislature has enacted an amendment known as Indian
Succession (Kerala Amendment) Act, 1986 dated 14.3.1997 by
which sub-section (2) of Section 213 of the Act has been
amended to the effect that after the word Muhammadans the
words or Indian Christians shall be inserted. It is thus
evident from this provision that it would apply to the State
of Kerala in respect of the property held by the deceasedhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
but it is not clear whether the amendment would apply to the
property of a testator who belongs to the State of Kerala in
respect of the property situated outside the State of
Kerala, as in the present case. The petitioner points out
the anomaly arising in the law. Thus a Christian residing
in the State of Kerala owning property therein if dies after
making a Will, the legatee thereto need not to obtain a
probate in terms of Section 213 of the Indian Succession Act
before establishing their right, while those residing in
other parts of the country are required to do so. The
anomaly pointed out by the petitioner is that the Will is
made in respect of a property situate in some part of the
country other than Kerala.
 The defence taken by the Government of India is that the
members of the Christian community are not put to any
discrimination and they are compelled to obtain probate or
letters of administration of the Wills only by way of rule
of evidence and procedure and it is intended to provide for
a right of means of establishing the genuineness of a Will
conclusively. So far as marriage and divorce, infants and
minors, adoption, wills, intestacy and succession, joint
family and partition and all matter in respect of which
parties in judicial proceedings were immediately before the
commencement of the Constitution subject to their personal
law, it is open to the State Legislatures to undertake any
legislation of the nature of Section 213 of the Act. The
State Governments bring in changes in personal law from time
to time as per the social conditions prevailing in the
particular States. Therefore, the amendment made in the
State of Kerala would not discriminate the persons residing
in other parts of the country. The contention is that the
classification has achieved social acceptance as is evident
from the fact that it has been in existence in the statute
book for a quite long time and it is not established that
how such classification in the statute suffers in any manner
from discrimination, and the provisions being procedural in
nature are intra vires to the Constitution. It is further
submitted that the Central Government has been consistently
following a policy of non-interference in the personal laws
of the minority communities unless the necessary initiative
for amendments or repeal from a majority or sizable crosssection of the community arises.
 On several representations having been made in this
regard by the Christian community in India amendment was
sought to be introduced by way of a Bill to amend Section
213 of the Act to bring Christians at par with other
communities who are not required to obtain probate. The
grievance of the petitioners in these cases, it is stated,
is well brought out in the Statement of Objects and
Reasons dated May 13, 1942 in respect of proposed amendment
of Section 213 which reads as under:-
 Prior to 1901, Indian Christians laboured under a
serious grievance, namely, that they were compelled to
obtain probate of wills and letters of administration with
liability to pay death duties on the death of every owner of
property under the Indian Succession Act X of 1865, while
Hindus and Muslims were exempt from the provisions of the
Act. They have since been partially relieved by being
placed practically on the same footing as their
non-Christian countrymen in cases of intestacy under the
Indian Christian Estates Administration Act VII of 1901;
but where the deceased has left a will, they are still boundhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
to obtain probate and pay probate duty as required by
section 213 of the Indian Succession Act XXXIX of 1925, a
section which does not apply to will of Hindu, Buddhists,
Sikhs or Jains except where such wills are of the class
specified in clauses (a) and (b) of section 57 and to all
wills of Muhammadans.
 The necessity of making wills has been imposed upon
Indian Christians by the provisions of the Indian Succession
Act as to intestate succession being made applicable to
them, which are far in advance of their usages and are
derived from English law. It is felt as a serious hardship
that in such circumstances Indian Christians should be
compelled to obtain probate and should be made liable to pay
death duties while their non-Christian countrymen to whom
wills are a luxury are exempt. From this injustice they
should be relieved by placing Indian Christians on the same
footing as Hindus and Muhammadans in Sections 213 and 370 of
the Act.
Sections 57 and 213 of the Act provide as follows :
 57. Application of certain provisions of Part to a
class of wills made by Hindus, etc. The provisions of this
Part which are set out in Schedule III shall, subject to the
restricts and modifications specified therein, apply
 (a) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first day of
September, 1870, within the territories which at the said
date were subject to the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and
Bombay; and
 (b) to all such wills and codicils made outside those
territories and limits so far as relates to immovable
property situate within those territories or limits; and
 (c) to all wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first day of
January, 1927, to which those provision:
 Provided that marriage shall not revoke any such will or
codicil.
 Section 213. Right as executor or legatee when
established. (1) No right as executor or legatee can be
established in any Court of Justice, unless a Court of
competent jurisdiction in India has granted probate of the
will under which the right is claimed, or has granted
letters of administration with the will or with a copy of a
authenticated copy of the will annexed.
 (2) This section shall not apply in the case of the
wills made by Muhammadans, and shall only apply-
 (i) in the case of wills made by any Hindu, Buddhist,
Sikh or Jaina where such wills are of the classes specified
in clauses (a) and (b) of section 57; and
 (ii) in the case of wills made by any Parsi dying, after
the commencement of the Indian Succession (Amendment) Act,
1962, where such wills are made within the local limits of
the ordinary original civil jurisdiction of the High Courtshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
at Calcutta, Madras and Bombay and where such wills are made
outside those limits, in so far as they relate to immovable
property situate within those limits.
 Hindu Wills Act, 1870 is the forerunner of Section 57 of
the Act. This Section without the proviso together with
Schedule III except Article (5) is Section 2 of Hindu Wills
Act, 1870 as amended by Section 154 of the Probate and
Administration Act, 1881. The proviso is proviso to Section
3 of the Hindu Wills Act. Thus, the scheme of the said
enactment is retained in Section 57 of the Act.
 The scope of Section 213(1) of the Act is that it
prohibits recognition of rights as an executor or legatee
under a will without production of a probate and sets down a
rule of evidence and forms really a part of procedural
requirement of the law of forum. Section 213(2) of the Act
indicates that its applicability is limited to cases of
persons mentioned therein. Certain aspects will have to be
borne in mind to understand the exact scope of this section.
The bar that is imposed by this section is only in respect
of the establishment of the right as an executor or legatee
and not in respect of the establishment of the right in any
other capacity. The section does not prohibit the will
being looked into for purposes other than those mentioned in
the section. The bar to the establishment of the right is
only for its establishment in a court of justice and not its
being referred to in other proceedings before administrative
or other Tribunal. The section is a bar to everyone
claiming under a will, whether as plaintiff or defendant, if
no probate or Letters of Administration is granted. The
effect of Section 213(2) of the Act is that the requirement
of probate or other representation mentioned in sub-section
(1) for the purpose of establishing the right as an executor
or legatee in a court is made inapplicable in case of a will
made by Muhammadans and in the case of wills coming under
Section 57(c) of the Act. Section 57(c) of the Act applies
to all wills and codicils made by any Hindu, Buddhist, Sikh
or Jain, on or after the first day of January, 1927 which
does not relate to immovable property situate within the
territory formerly subject to the Lieutenant-Governor of
Bengal or within the local limits of the ordinary civil
jurisdiction of the High Courts of Judicature at Madras and
Bombay, or in respect of property within those territories.
No probate is necessary in the case of wills by Muhammadans.
Now by the Indian Succession [Amendment] Act, 1962, the
section has been made applicable to wills made by Parsi
dying after the commencement of the 1962 Act. A combined
reading of Sections 213 and 57 of the Act would show that
where the parties to the will are Hindus or the properties
in dispute are not in territories falling under Section
57(a) and (b), sub-section (2) of Section 213 of the Act
applies and sub-section (1) has no application. As a
consequence, a probate will not be required to be obtained
by a Hindu in respect of a will made outside those
territories or regarding the immovable properties situate
outside those territories. The result is that the
contention put forth on behalf of the Petitioners that
Section 213(1) of the Act is applicable only to Christians
and not to any other religion is not correct.
 We have shown above that it is applicable to Parsis
after the amendment of the Act in 1962 and to Hindus who
reside within the territories which on 1.9.1870 were subject
to the Lt. Governor of Bengal or to areas covered byhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
original jurisdiction of the High Courts of Bombay and
Madras and to all wills made outside those territories and
limits so far as they relate to immovable property situate
within those territories and limits. If that is so, it
cannot be said that the section is exclusively applicable
only to Christians and, therefore, it is discriminatory.
The whole foundation of the case is thus lost. The
differences are not based on any religion but for historical
reasons that in British Empire in India, probate was
required to prove the right of a legatee or an executor but
not in Part B or C States. That position has continued
even after the Constitution has come into force. Historical
reasons may justify differential treatment of separate
geographical regions provided it bears a reason and just
relation to the matter in respect of which differential
treatment is accorded. Uniformity in law has to be
achieved, but that is a long drawn process. Undoubtedly,
the States and Union should be alive to this problem. Only
on the basis that some differences arise in one or other
States in regard to testamentary succession, the law does
not become discriminatory so as to be invalid. Such
differences are bound to arise in a federal set up.
 The learned counsel for the Petitioners relied on the
decisions in B.Venkataramana vs. State of Madras & Anr.,
AIR 1951 SC 229, Sheokaransingh vs. Daulatram, AIR 1955
Raj. 201, State of Rajasthan & Ors. vs. Thakur Pratap
Singh, AIR 1960 SC 1208, Mrs.Hem Nolini Judah vs. Mrs.
Isolyne Sarojbashini Bose, 1962 Supp.(3) SCR 294, Mary Sonia
Zachariah vs. Union of India, 1995(1) KLT 644, Ahmedabad
Women Action Group (AWAG) & Ors. vs. Union of India, 1997
(3) SCC 573 and Preman vs. Union of India, 1998(2) KLT
1004. However, in the light of the above conclusion, it is
unnecessary to refer to those decisions though some of them
may have bearing in analysing and understanding the scope of
the provisions which are made applicable exclusively to
Christians as it happened in the case of Section 118 of the
Act or in the case of the Indian Divorce Act. Therefore, we
have not adverted to any one of these provisions. If
Christians alone had been discriminated against by treating
them as a separate class, we think the argument could have
been understood and merited consideration.
 In that view of the matter, we do not think there is any
merit in these petitions and the same stand dismissed@@
 JJJJJJJJJJJJJJJJJJJJJJJJJJJ
accordingly. No costs.@@
JJJJJJJJJJJJJJJJJJJJJJJ
S. RAJENDRA BABU
R.C. LAHOTI
February 22, 2001.