Child and Family Welfare – Custody of minor child – Custody of one of the twin daughters born to respondent No.2 and his wife is in question, who had undisputedly been living with appellant No.2 (real sister of respondent No. 2) ever since she was 3-4 month old and thereafter with the family:

* Author

[2024] 3 S.C.R. 10 : 2024 INSC 163

Shazia Aman Khan and Another

v.

The State of Orissa and Others

(Criminal Appeal No.1345 of 2024)

04 March 2024

[C.T. Ravikumar and Rajesh Bindal,* JJ.]

Issue for Consideration

Custody of a minor child in parens patriae jurisdiction.

Headnotes

Child and Family Welfare – Custody of minor child – Custody

of one of the twin daughters born to respondent No.2 and his

wife is in question, who had undisputedly been living with

appellant No.2 (real sister of respondent No. 2) ever since she

was 3-4 month old and thereafter with the family:

Held: Stability and security of the child is an essential ingredient

for full development of child’s talent and personality – Welfare of

the children is of paramount consideration and not personal law

and statute – Child’s welfare is to be seen and not the rights of the

parties – Another principle of law which is settled with reference

to custody of the child is the wish of the child, if she is capable

of – Presently, the child is about 14 years of age – She was called

in Court and interacted with individually in chamber – She is quite

intelligent and could understand her welfare – She categorically

stated that she was happy with the family where she had been

brought up – She has other brother and sister and is having cordial

relations with them and she does not wish to be destabilized – The

fact that appellant No.1 was un-married when custody of the child

was handed over to her and is now married having two children

will also not be a deterrent for this Court to come to the conclusion

that best interest of the child still remains with the appellant No.2

as the child is living with her ever since she was 3-4 months old

and is now about 14 years of age having no doubt in her mind

that she wishes to live with them – Welfare of the child lies with

her custody with the appellants and respondent No.10 – This is

coupled with the fact that even she also wishes to live there – She

cannot be treated as a chattel at the age of 14 years to hand

over her custody to the respondent No.2, where she has not lived 

[2024] 3 S.C.R. 11

Shazia Aman Khan and Another v. The State of Orissa and Others

ever since her birth – Stability of the child is also of paramount

consideration – Impugned order passed by the High Court inter

alia directing the recovery of the child from the custody of appellant

No. 2 and respondent No. 10, particularly from appellant No.1 and

respondent No. 10 and to hand over to respondent No.2 is set

aside – Writ petition filed by respondent No. 2 in the High Court

dismissed. [Paras 12-14, 16, 17, 19-21]

Case Law Cited

Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari,

[2019] 7 SCR 335 : AIR 2019 SC 2318 – held

inapplicable.

Athar Hussain v. Syed Siraj Ahmed and others, [2010] 1

SCR 49 : (2010) 2 SCC 654; Rohith Thammana Gowda

v. State of Karnataka and others, [2022] 4 SCR 784 :

AIR 2022 SC 3511; Mausami Moitra Ganguli v. Jayant

Ganguli, [2008] 8 SCR 260 : (2008) 7 SCC 673; Nil

Ratan Kundu and another v. Abhijit Kundu, [2008] 11

SCR 1111 : (2008) 9 SCC 413; Ashish Ranjan v. Anupam

Tandon and another, [2010] 14 SCR 961 : (2010) 14

SCC 274; Roxann Sharma v. Arun Sharma, [2015] 2

SCR 572 : (2015) 8 SCC 318 – relied on.

List of Keywords

Custody of minor child; Parens patriae jurisdiction; Stability and

security of the child; Welfare of the child; Wish of the child;

Mohammaden law.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1345

of 2024

From the Judgment and Order dated 03.04.2023 of the High Court

of Orissa at Cuttack in WPCRL No.160 of 2021

Appearances for Parties

Amit Pawan, Anand Nandan, Abhishek Amritanshu, Aakarsh, Hassan

Zubar Waris, S.S. Rawat, Ms. Shivangi, Advs. for the Appellants.

Shovan Mishra, Ms. Bipasa Tripathy, Ms. Sagarika Sahoo, Anam

Charan Panda, Hitendra Nath Rath, Akshat Srivastava, Advs. for

the Respondents.

12 [2024] 3 S.C.R.

Digital Supreme Court Reports

Judgment / Order of the Supreme Court

Judgment

Rajesh Bindal, J.

Leave granted.

2. This Court has been called upon to decide about the issue regarding

custody of a minor child in parens patriae jurisdiction.

3. The child at present is 14 years of age, living since birth with the

appellants and respondent No.10.

4. Aggrieved against the order1 passed by the High Court2

 in a Writ

Petition3

 filed by respondent No.2, who is biological father of the

child, for restoration of her custody, namely, Sumaiya Khanam in

his favour, the present appeal has been filed.

5. The High Court directed the Registrar (Judicial) of the Court to recover

the child from the custody of appellant No. 2 and respondent No. 10,

particularly from appellant No. 1 and respondent No. 10 and to hand

over to respondent No.2. The authorities of the State Government

were also directed to execute the writ of Habeas Corpus and hand

over the child to respondent No. 2.

6. Learned counsel for the appellants submitted that twin daughters

were born to respondent No. 2 and his wife on 20.03.2010. The

respondent No. 2 at that time was living at Rourkela. The children

were born at Ranchi where their maternal grand mother was residing.

As he was unable to take care of twins, on his request, one was left

at Ranchi. Appellant No. 2 is the real sister of respondent No. 2. As

the maternal grand mother could not take care of the small child, she

was handed over to the appellant No. 2. This happened when the

child was merely 2-3 months old. Ever since then, she is living with

her. No issue was raised by respondent No. 2 at any time. It was

only in the year 2015, a complaint was filed by respondent No. 2 with

the police regarding kidnapping of the child against the appellants

and respondents No. 7 and 9. As it was not a case of kidnapping,

1 Order dated 03.04.2023

2 High Court of Orissa at Cuttack

3 WPCRLNo. 160 of 2021

[2024] 3 S.C.R. 13

Shazia Aman Khan and Another v. The State of Orissa and Others

as alleged, closure report was filed by the police on 31.08.2016,

which was accepted by the Court, vide order dated 11.02.2017. No

objection was raised by respondent No. 2 to the acceptance of the

closure report. However, a private complaint4

 dated 27.03.2017 was

filed by respondent No. 2 under Sections 363, 346, 120-B IPC with

reference to the custody of the child by taking a different stand. The

aforesaid complaint is stated to be still pending. In a petition5

 filed

by the appellants and respondents No. 7 and 9 before the High

Court seeking quashing of the complaint, further proceedings in the

complaint have been stayed.

6.1 Immediately after filing of the aforesaid complaint by the

respondent No. 2, wife of respondent No.2, namely, biological

mother of the child, filed petition6

 in the High Court of Judicature

at Patna praying for issuance of directions to the official

respondents to recover the child from the wrongful confinement

of the private respondents therein. However, when no case

could be made out, the aforesaid petition was dismissed as

withdrawn with liberty to avail remedy in accordance with law.

The fact remains that thereafter the mother of the child did

not avail any other remedy for seeking custody of the child. In

fact, they were not interested at all. It was the litigation only

for the sake of it. The child was left by respondent No. 2 with

her maternal grand mother on account of the financial difficulty

faced by him at that time.

6.2 More than four years thereafter, respondent No. 2 filed a Writ

Petition in the High Court praying for custody of the child.

While entertaining the Writ Petition, the High Court, vide order

dated 11.02.2022, noticed the issues need to be examined in

the Writ Petition. However, at the time of hearing the matter,

the High Court framed different issues, as have been noticed

in paragraph No. 57 of the impugned judgement.

6.3 He further submitted that number of documents were placed by

the appellants before the High Court which clearly establish that

the child ever since is living with the appellants and respondent

4 ICC CaseNo.120 of2017

5 CRLMC NO. 549 of2019

6 Criminal Writ Jurisdiction Case No. 1232 of 2017

14 [2024] 3 S.C.R.

Digital Supreme Court Reports

No. 10. At the time of her birth, her name was Sumaiya Khanam,

which was later on changed to Dania Aman Khan. A Petition7

has been filed under the Guardianship and Wards Act, 1890

by appellant No.1 and respondent No.10, which is stated to be

pending. However, he submitted that in the present proceedings,

the appellants are only raising the issue regarding custody of

the child and not guardianship. He fairly submitted that there

is no system of adoption of child in Mohammaden law. It is

only Kafalah, in terms of which only custody can be given to

another person, however, the child does not sever relations

with biological parents.

6.4 Learned counsel for the appellants on instructions categorically

stated that appellant No. 1 and respondent No. 10 have two more

children. The child, of which they have the custody ever since

her birth will have equal rights along with two other children.

She will not be discriminated in any manner whatsoever.

6.5 Further raising the issue regarding the conduct of respondent

No. 2, he submitted that firstly a petition for Habeas Corpus

was filed by the wife of respondent No. 2 before the High Court

of Judicature at Patna five years after the child had been living

with appellant No. 1 and respondent No. 10. The same was

dismissed as withdrawn. Four years thereafter, similar petition

was filed by respondent No. 2 before the High Court of Orissa.

Time gap shows that the respondent No. 2 is not interested in

custody of the child.

6.6 He further submitted that to show their bonafide, appellant

No. 1 and respondent No. 10 are ready and willing to deposit

a sum of ₹ 10,00,000/- in FDR in bank in her name and also

transfer property having market value of about ₹ 50,00,000/-.

At present, the child is grown up. She is 14 years of age. She

is capable of forming an opinion about her best interest. The

welfare of the child is of paramount consideration and not the

rights of the parties. Stability is most important factor as any

order passed by this Court may dislodge the child from the family

where she is settled for the last 14 years. Her transplantation

at this stage may not be in her best interest. It is the welfare

7 Guardianship Case No. 23 of 2016 before the Court of Principal Judge, Family Court, Patna

[2024] 3 S.C.R. 15

Shazia Aman Khan and Another v. The State of Orissa and Others

of the child and not the personal law or the statute which has

paramount consideration, when the parties are fighting. In

support of his argument that it is only the best interest of the

child which is to be considered in such matters and also the

difference between custody and guardianship, reliance was

placed upon the judgment of this Court in Athar Hussain v.

Syed Siraj Ahmed and others8

.

7. In response, learned counsel for respondent No. 2 submitted

that it is not the case of abandonment of a child, as is sought to

be projected by the appellants now. No parents will ever think of

that, what to talk of actually doing it. The child was left with her

maternal grand mother and thereafter handed over to appellant

No.2 for her initial upbringing when she was 3-4 months old. She

further submitted that when repeated requests for returning back

the child were not acceded to, respondent No. 2 did not have any

choice but to lodge an FIR in which a closure report was filed and

accepted also. She further submitted that even during this period of

five years, the child had been coming to her parents off and on. It

was further submitted that after the closure report in the aforesaid

FIR was accepted, respondent No. 2 filed a complaint dated

27.03.2017 under Sections 363, 346, 120-B IPC with reference to

the custody of the child. The aforesaid complaint is stated to be

still pending. In a petition9

 filed by the appellants and respondents

No. 7 and 9 seeking quashing of the complaint, further proceedings

in the complaint have been stayed by the High Court of Orissa.

Immediately after filing of the aforesaid complaint by respondent

No. 2, his wife, i.e., biological mother of the child, filed the petition

in the High Court of Judicature at Patna praying for issuance of

directions to the official respondents to recover the child from

the wrongful confinement of the private respondents therein. The

aforesaid petition was dismissed as withdrawn with liberty to avail

any other remedy in accordance with law.

7.1 Explaining the delay in filing the petition before the High Court,

learned counsel for respondent No. 2 submitted that it is was

because of COVID pandemic. She further submitted that since

8 (2010) 2 SCC 654

9 CRLMC N0. 549 of 2019

16 [2024] 3 S.C.R.

Digital Supreme Court Reports

2015, the biological parents of the child have not even been able

to meet her. Respondent No. 2 was and is able to take care of

all the needs of the child and provide her best education, as

is being provided to the sister of the child as twins were born.

It was further argued that appellant No. 1 got married with

respondent No. 10, who is a stranger to the family. In terms

of Mohammedan law, custody of the child cannot be given to

the stranger, who is beyond prohibitory degree for marriage

but she fairly submitted that they all are living in a joint family.

7.2 It was further argued that one of the prayers made by the

appellants before this Court is that appellant No. 2 be permitted

to stay for some time with the child in case custody is handed

over to respondent No. 2 so that the child settles in new

atmosphere. Respondent No. 2 does not have any objection to

the fair offer made by the appellants. In fact, when the child was

handed over to appellant No.1, she was un-married. However,

thereafter she got married and is having two children. The child

may be discriminated. If the custody of the child is handed

over to respondent No. 2, the distance between Patna and

Rourkela being not much, the appellants are always welcome

to visit the child. The question is also of the identity of the child

which has been lost in the process. If she comes back, she

will also have love, affection and company of her twin sister. In

support, reliance was placed upon Tejaswani Gaud v. Shekhar

Jagdish Prasad Tewari10 and Rohith Thammana Gowda v.

State of Karnataka and others11. The Prayer is for dismissal

of the appeal.

8. Heard learned counsel for the parties and perused the relevant

referred record.

9. The undisputed facts on record are that twins were born to respondent

No. 2 and his wife on 20.03.2010. One of them, the custody of whom

is in question, has undisputedly been living with appellant No. 2 ever

since she was 3-4 month old and thereafter with the family. Presently,

she is about 14 years of age. It is not a case in which any of the

parties is claiming adoption which otherwise is not permissible under

10 [2019] 7 SCR 335 : AIR 2019 SC 2318

11 [2022] 4 SCR 784 : AIR 2022 SC 3511

[2024] 3 S.C.R. 17

Shazia Aman Khan and Another v. The State of Orissa and Others

Mohammedan law. Guardianship is also not being claimed. It is only

the dispute regarding custody of the child.

10. Before we deal with the issue on merits, we deem it appropriate to

refer to the legal position on the issues.

11. This Court in Athar Hussain v. Syed Siraj Ahmed and others’case

(supra) had elaborated the concept of custody, guardianship and

stability of child, while holding as under:

“31. We are mindful of the fact that, as far as the matter

of guardianship is concerned, the prima facie case lies in

favour of the father as under Section 19 of the GWC Act,

unless the father is not fit to be a guardian, the Court has

no jurisdiction to appoint another guardian. It is also true

that the respondents, despite the voluminous allegations

leveled against the appellant have not been able to prove

that he is not fit to take care of the minor children, nor has

the Family Court or the High Court found him so. However,

the question of custody is different from the question

of guardianship. Father can continue to be the natural

guardian of the children; however, the considerations

pertaining to the welfare of the child may indicate lawful

custody with another friend or relative as serving his/her

interest better.

xx xx xx

37. Stability and consistency in the affairs and routines of

children is also an important consideration as was held by

this Court in another decision cited by the learned counsel

for the appellant in Mausami Moitra Ganguli v. Jayant

Ganguli, (2008)7 SCC 673. This Court held:

“24.....We are convinced that the dislocation

of Satyajeet, at this stage, from Allahabad,

where he has grown up in sufficiently good

surroundings, would not only impede his

schooling, it may also cause emotional strain

and depression to him.”

18 [2024] 3 S.C.R.

Digital Supreme Court Reports

After taking note of the marked reluctance on the part of

the boy to live with his mother, the Court further observed:

“26. Under these circumstances and bearing in

mind the paramount consideration of the welfare

of the child, we are convinced that child’s interest

and welfare will be best served if he continues

to be in the custody of the father. In our opinion,

for the present, it is not desirable to disturb the

custody of Master Satyajeet and, therefore,

the order of the High Court giving his exclusive

custody to the father with visitation rights to the

mother deserves to be maintained.”

[Emphasis supplied]

xx xx xx

41. However, the High Court of Rajasthan held that in the

light of Section 19 which bars the Court from appointing

a guardian when the father of the minor is alive and not

unfit, the Court could not appoint any maternal relative as

a guardian, even though the personal law of the minor

might give preferential custody in her favour. As is evident,

the aforementioned decision concerned appointment of a

guardian. No doubt, unless the father is proven to be unfit, the

application for guardianship filed by another person cannot

be entertained. However, we have already seen that the

question of custody was distinct from that of guardianship.

As far as matters of custody are concerned, the Court is not

bound by the bar envisaged under Section 19 of the Act.”

[Emphasis supplied]

12. This Court in Mausami Moitra Ganguli v. Jayant Ganguli12, opined

that the stability and security of the child is an essential ingredient for

full development of child’s talent and personality. Relevant paragraph

thereof is extracted below:

“23. Having bestowed our anxious consideration to the

material on record and the observations made by the

12 [2008] 8 SCR 260 : (2008) 7 SCC 673

[2024] 3 S.C.R. 19

Shazia Aman Khan and Another v. The State of Orissa and Others

courts below, we are of the view that in the present case

there is no ground to upset the judgment and order of the

High Court. There is nothing on record to suggest that the

welfare of the child is in any way in peril in the hands of

the father. In our opinion, the stability and security of the

child is also an essential ingredient for a full development of

child’s talent and personality. As noted above, the appellant

is a teacher, now employed in a school at Panipat, where

she had shifted from Chandigarh some time back. Earlier

she was teaching in some school at Calcutta. Admittedly,

she is living all alone. Except for a very short duration

when he was with the appellant, Master Satyajeet has

been living and studying in Allahabad in a good school

and stated to have his small group of friends there. At

Panipat, it would be an entirely new environment for him

as compared to Allahabad.

[Emphasis supplied]

13. In Nil Ratan Kundu and another v. Abhijit Kundu13, this Court laid

down the principles governing custody of minor children and held

that welfare of the children is to be seen and not the rights of the

parties by observing as under:

“Principles governing custody of minor children

53. In our judgment, the law relating to custody of a child

is fairly well-settled and it is this. In deciding a difficult

and complex question as to custody of minor, a Court of

law should keep in mind relevant statutes and the rights

flowing therefrom. But such cases cannot be decided solely

by interpreting legal provisions. It is a humane problem

and is required to be solved with human touch. A Court

while dealing with custody cases, is neither bound by

statutes nor by strict rules of evidence or procedure nor

by precedents. In selecting proper guardian of a minor,

the paramount consideration should be the welfare and

well-being of the child. In selecting a guardian, the Court

is exercising parens patriae jurisdiction and is expected,

13 [2008] 11 SCR 1111 : (2008) 9 SCC 413

20 [2024] 3 S.C.R.

Digital Supreme Court Reports

nay bound, to give due weight to a child’s ordinary comfort,

contentment, health, education, intellectual development

and favourable surroundings. But over and above physical

comforts, moral and ethical values cannot be ignored.

They are equally, or we may say, even more important,

essential and indispensable considerations. If the minor is

old enough to form an intelligent preference or judgment,

the Court must consider such preference as well, though

the final decision should rest with the Court as to what is

conducive to the welfare of the minor.

xx xx xx

55. We are unable to appreciate the approach of the

Courts below. This Court in catena of decisions has held

that the controlling consideration governing the custody

of children is the welfare of children and not the right of

their parents.”

[Emphasis supplied]

14. This Court has consistently held that welfare of the child is of

paramount consideration and not personal law and statute. In Ashish

Ranjan v. Anupam Tandon and another14, this Court held as under:

“19. The statutory provisions dealing with the custody of

the child under any personal law cannot and must not

supersede the paramount consideration as to what is

conducive to the welfare of the minor. In fact, no statute

on the subject, can ignore, eschew or obliterate the vital

factor of the welfare of the minor.

15. This Court in Roxann Sharma v. Arun Sharma15, opined that the

child is not a chattel or ball that it is bounced to and fro. Welfare

of the child is the focal point. Relevant lines from para-No. 18 are

reproduced hereunder:

“18........There can be no cavil that when a court is

confronted by conflicting claims of custody there are no

rights of the parents which have to be enforced; the child

14 [2010] 14 SCR 961 : (2010) 14 SCC 274

15 [2015] 2 SCR 572 : (2015) 8 SCC 318

[2024] 3 S.C.R. 21

Shazia Aman Khan and Another v. The State of Orissa and Others

is not a chattel or a ball that is bounced to and fro the

parents. It is only the child’s welfare which is the focal point

for consideration. Parliament rightly thinks that the custody

of a child less than five years of age should ordinarily be

with the Mother and this expectation can be deviated from

only for strong reasons”

16. Another principle of law which is settled with reference to custody

of the child is the wish of the child, if she is capable of. Reference

can be made to Rohith Thammana Gowda v. State of Karnataka

and others’ case (supra). It was held as under:

“13. We have stated earlier that the question ‘what is

the wish/desire of the child’ can be ascertained through

interaction, but then, the question as to ‘what would be the

best interest of the child’ is a matter to be decided by the

court taking into account all the relevant circumstances. A

careful scrutiny of the impugned judgment would, however,

reveal that even after identifying the said question rightly

the High Court had swayed away from the said point and

entered into consideration of certain aspects not relevant

for the said purpose. We will explain the raison d’etre for

the said remark.”

17. In the case in hand, vide order dated 12.12.2023, we had called the

child in Court. We had interacted with the child, the appellants and

respondent No. 2 individually in chamber. We found the child to be

quite intelligent, who could understand her welfare. She categorically

stated that she is happy with the family where she has been brought

up. She has other brother and sister. She is having cordial relations

with them. She does not wish to be destabilized.

18. The judgment in Tejaswani Gaud v. Shekhar Jagdish Prasad

Tewari’s case (supra), relied upon by learned counsel for respondent

No. 2 does not come to her rescue for the reason that age of the

child in that case was merely five years. It is a case which lays down

guidelines as to how custody of the child is to be handed over.

19. The fact that appellant No. 1, when custody of the child was handed

over to her, was un-married and is now married having two children

will also not be a deterrent for this Court to come to the conclusion

that best interest of the child still remains with the appellant No. 2 

22 [2024] 3 S.C.R.

Digital Supreme Court Reports

as the child is living with her ever since she was 3-4 months old

and is now about 14 years of age having no doubt in her mind that

she wishes to live with them.

20. In view of our aforesaid discussions, we find that the welfare of the

child lies with her custody with the appellants and respondent No. 10.

This is coupled with the fact that even she also wishes to live there.

Keeping in view her age at present, she is capable of forming an

opinion in that regard. She was quite categoric in that regard when

we interacted with her. She cannot be treated as a chattel at the

age of 14 years to hand over her custody to the respondent No.2,

where she has not lived ever since her birth. Stability of the child is

also of paramount consideration.

21. The appeal is accordingly allowed. The impugned order passed by

the High Court is set aside, as a result of which the writ petition filed

by respondent No. 2 in the High Court is dismissed. We expect the

appellants to adhere to the stand taken by them during the course

of arguments, as noticed above.

Headnotes prepared by: Divya Pandey Result of the Case:

Appeal allowed.

Whether an adjustable rate of interest on home loan would apply based only on the rate of interest being fixed/altered by RBI or the rate of interest fixed/ altered by respondent No.1-Bank.

* Author

[2024] 3 S.C.R. 1 : 2024 INSC 162

Rajesh Monga

v.

Housing Development Finance Corporation Limited & Ors.

(Civil Appeal No. 1495 of 2023)

04 March 2024

[A.S. Bopanna* and M.M. Sundresh JJ.]

Issue for Consideration

Whether an adjustable rate of interest on home loan would apply

based only on the rate of interest being fixed/altered by RBI or the

rate of interest fixed/ altered by respondent No.1-Bank.

Headnotes

Consumer Protection Act, 1986 – Rate of interest to be

charged on home loan – Home buyer filed loan application,

opting an adjustable rate of interest – Manager of the Bank

assured that the rate of interest would be charged based on

the Prime Lending Rate of RBI – Loan amount disbursed,

and thereafter, the rate of interest was revised from 7.25%

pa to 8.25% pa despite RBI not having changed the Prime

Lending Rate and was further increased to 10.5% pa though

no change made by RBI – Consumer complaint – National

Consumer held that home buyer was bound by the terms

and conditions of the agreement while the bank was bound

by various instructions of RBI at the time of signing the

agreement – Interference with:

Held: Respondent No.1 being a NBFC and as a corporate body

would be bound by its policies and procedures with regard to

lending and recovery – Applicability of the rate of interest to be

charged is a policy matter and cannot be case-specific unless

the individual agreement entered into between the parties indicate

otherwise – When the parties have signed the agreement, the terms

agreed therein would bind the parties and the email exchanged

between the parties cannot override the policy decisions of the

institution – Having executed the agreement; having agreed to

the terms and conditions; having received the loan amount, the

appellant-home buyer cannot raise any objection for the first time 

2 [2024] 3 S.C.R.

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when the rate of interest was increased after having acquiesced by

signing the agreement – Further, the appellant having repaid the

loan amount with interest as per the terms of agreement cannot

make out a grievance in hindsight and seek refund of the amount

paid – In view thereof, no error has been committed so as to call

for interference. [Para 10 – 16]

Case Law Cited

Texco Marketing (P) Ltd. v. TATA AIG General

Insurance Co. Ltd. [2022] 9 SCR 1031 : (2023) 1

SCC 428; Debashis Sinha v. R.N.R. Enterprise (2023)

3 SCC 195; Pradeep Kumar v. Postmaster General

[2022] 19 SCR 583 : (2022) 6 SCC 351; Board of

Trustees of Chennai Port Trust v. Chennai Container

Terminal Private Ltd. (2014) 1 CTC 573 – referred to.

List of Acts

Consumer Protection Act, 1986.

List of Keywords

Adjustable rate of interest; Home loan; Rate of interest being

fixed/altered by RBI; Prime Lending Rate of RBI; Policies and

procedures with regard to lending and recovery; Agreement;

Acquiesced; Unfair trade practice; Policy decisions; Compensation;

Financial institution.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1495 of 2023

From the Judgment and Order dated 10.11.2022 of the National

Consumers Disputes Redressal Commission, New Delhi in CC No.

2367 of 2018

Appearances for Parties

Vikas Singh, Sr. Adv., Varun Singh, Akshay Dev, Mohammad Atif

Ahmad, Nitin Saluja, Ms. Deepika Kalia, Ms. Vaishnavi, Keshav

Khandelwal, Ms. Pranya Madan, Pankaj Kumar Modi, Advs. for the

Appellant.

Aniruddha Choudhury, Ms. Mandira Mitra, Ms. Tushita Ghosh, Rohit,

Advs. for the Respondents.

[2024] 3 S.C.R. 3

Rajesh Monga v. Housing Development Finance

Corporation Limited & Ors.

Judgment / Order of the Supreme Court

Judgment

A.S. Bopanna, J.

1. The appellant is before this Court in this appeal claiming to be

aggrieved by the order dated 10.11.2022 passed by the National

Consumer Disputes Redressal Commission, New Delhi (‘NCDRC’

for short) in Consumer Complaint No. 2367 of 2018. By the said

order the NCDRC has concluded that the appellant is bound by

the terms and conditions of the agreement dated 11.01.2006,

while the respondent was bound by various instructions of the

Reserve Bank of India (‘RBI’ for short), at the time of signing

the agreement dated 11.01.2006. Hence the complaint filed by

the appellant was dismissed. The appellant is therefore before

this Court.

2. The brief facts are that the appellant was in need of home loan.

The respondents No. 2 and 3 being the employees of respondent

No. 1 approached the appellant during August 2005. The appellant

was exploring the option of securing loan from other financial

institutions as well. The case of the appellant is that respondents

No. 2 and 3 being the direct sales agent and the resident manager

of respondent No. 1 - HDFC convinced the appellant that the rate

of interest charged by the respondent No. 1 on home loan was

lesser than what was being charged by ICICI Bank. In this regard,

the appellant relied on an email dated 05.10.2005 from respondent

No. 2 to contend that a comparison was provided in the said email

to the appellant that the rate of interest offered by respondent No.1

was cheaper.

3. It is contended that the respondent No. 2, on behalf of respondent

No. 1 had assured that the rate of interest would be charged based

on the Prime Lending Rate of RBI. Based on such representations the

appellant is stated to have applied for home loan of Rs.3,50,00,000/-

(Rupees Three Crores and Fifty Lakhs) from respondent No.1, which

was sanctioned and the loan agreement dated 11.01.2006 was

entered into. The loan amount was disbursed to DLF Universal Ltd.,

in instalments between January 2006 to December 2007. As per

the loan agreement, interest at 7.25% p.a and margin of 3.5 % per

annum was provided. Though this was the position, the grievance of 

4 [2024] 3 S.C.R.

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the appellant is that the respondent No. 1 revised the rate of interest

to 8.25 %, despite RBI not having changed the Prime Lending Rate

during 11.01.2006 to 01.05.2006.

4. In spite of the complainant contacting the respondent No. 2 and

other officers, there was no relief, instead, the respondent No. 1

raised the rate of interest to 8.75 %, to 9.25% and again to 10.5%

though there was no change made by RBI with regard to the Prime

Lending Rate. The appellant therefore got issued a legal notice dated

27.09.2007 demanding to return the interest amount which was

charged over and above 7.5% p. a. The respondent No.1 vide their

reply to the notice dated 09.10.2007 contended that the appellant

through the agreement opted for ‘Adjustable Rate of interest’, as such

rate of interest was varying as per the retail prime lending rate of

respondent No. 1. It is in that background the appellant approached

the Consumer Forum.

5. We have heard Sri. Vikas Singh, learned senior counsel for the

appellant, Sri. Aniruddha Choudhary for the respondents and perused

the appeal papers.

6. The thrust of the contention is that the respondent No. 2 on behalf of

respondent No.1 had assured that the interest charged by respondent

No.1 is as per the retail prime lending rate to be notified by RBI. As

such the interest which was indicated at 7.25% p.a. can be altered

only if the RBI had altered the rate of interest and not otherwise.

Though, in the agreement it is contained that the rate of interest

would be as per the prime lending rate of interest of respondent

No.1, the same is contrary to the assurance that was held out to the

appellant that such adjustable rate of interest agreed is only when

the rate of interest is varied by the RBI and not as per the interest

to be varied by respondent No.1. The learned senior counsel for

the appellant in that regard has placed strong reliance on the email

dated 05.10.2005, to contend that such assurance was made to

the appellant.

7. The learned senior counsel for the appellant has relied on Texco

Marketing (P) Ltd. v. TATA AIG General Insurance Co. Ltd.,

(2023) 1 SCC 428, wherein the issue considered was with regard

to an exclusion clause in an insurance policy which materially

altered the nature of the contract. It was observed in this regard

that insurance contracts are standard form contracts wherein the 

[2024] 3 S.C.R. 5

Rajesh Monga v. Housing Development Finance

Corporation Limited & Ors.

insurer being the dominant party dictates its own terms and the

consumer has weak bargaining power and as such the contracts

are one sided. The concept of freedom of contract loses some

significance in a contract of insurance. Such contracts demand a

very high degree of prudence, good faith, disclosure and notice

on the part of the insurer, being different facets of the doctrine of

fairness. The bench consisting of two Hon’ble judges was of the

opinion that one cannot give a restrictive or narrow interpretation

to the provisions relating to unfair trade practices as given under

the Consumer Protection Act, 1986. The Court’s finding against one

of the parties qua the existence of unfair trade practice has to be

transformed into an adequate relief in favour of the other, particularly

in light of Section 14 of the 1986 Act. Once, the State Commission

or the NCDRC, as the case may be, comes to the conclusion

that the term of a contract is unfair, particularly by adopting an

unfair trade practice, the aggrieved party has to be extended the

resultant relief which is further strengthened by Sections 47 and

49 of the 2019 Act. It was also observed that under sub-section

(2) of Sections 49 and 59 of the Consumer Protection Act, 2019

the State Commission and the NCDRC, respectively, may declare

any terms of the contract being unfair to any consumer to be null

and void and there exists ample power to declare any terms of the

contract as unfair, if in its opinion, its introduction by the insurer

has certain elements of unfairness.

In Debashis Sinha v. R.N.R. Enterprise (2023) 3 SCC 195,

the dispute was regarding amenities promised by the real estate

developers in their brochures/advertisement which were not delivered

by them. It was noted that once the NCDRC arrived at a finding that

the respondents therein were casual in their approach and had even

resorted to unfair trade practice, it was its obligation to consider the

appellants’ grievance objectively and upon application of mind and

thereafter give its reasoned decision. If at all, the appellants had not

forfeited any right by registration of the sale deeds and if indeed the

respondents were remiss in providing any of the facilities/amenities as

promised in the brochure/advertisement, it was the duty of NCDRC

to set things right.

8. In Pradeep Kumar v. Postmaster General (2022) 6 SCC 351, in

those facts and circumstances it was found by this Court that fraud

was committed by an officer and employee of the post office. It was 

6 [2024] 3 S.C.R.

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held that the Post Office, as an abstract entity, functions through

its employees. Employees, as individuals, are capable of being

dishonest and committing acts of fraud or wrongs themselves or in

collusion with others. Such acts of bank/post office employees, when

done during their course of employment, are binding on the bank/

post office at the instance of the person who is damnified by the

fraud and wrongful acts of the officers of the bank/post office and

such acts within their course of employment will give a right to the

appellants to legally proceed for injury, as this is their only remedy

against the post office. Thus, the post office, like a bank, can and

is entitled to proceed against the officers for the loss caused due to

the fraud, etc. but this would not absolve them from their liability if

the employee involved was acting in the course of his employment

and duties.

9. From a perusal of the above noted cases, it would disclose that

they are circumstances where certain aspects were contained in

the agreements in question, but a contention was raised contrary to

the same and this Court had rejected such contention. The learned

senior counsel would however contend that though the parties may

have agreed on certain aspects in the agreement, what is important

is the intention of the parties and any correspondence exchanged

between the parties as a prelude to the transaction before executing

the agreement will be relevant to know the intention of the parties. It

is in that regard contended that the email dated 05.10.2005 was prior

to the agreement dated 11.01.2006 and as such the said intention

should be gathered and given effect to. In order to persuade us to

accept this contention, the learned senior counsel for the appellant

has relied on the decision in Board of Trustees of Chennai Port

Trust v. Chennai Container Terminal Private Ltd. (2014) 1

CTC 573 wherein it was contended that the petitioner therein had

granted licence to Respondent No. 1 therein for the development

and maintenance of Chennai Container Terminal in terms of Licence

Agreement entered into between parties in 2001. Contentions were

raised that pre-contractual correspondence cannot be relied upon

as the correspondence fructified into a contract. It was held that

while English jurisprudence is clear on the aspect of pre-contractual

correspondence losing its significance once the contract comes into

existence, a straightjacket formula cannot be applied in India as

there may be people from different states and different languages as 

[2024] 3 S.C.R. 7

Rajesh Monga v. Housing Development Finance

Corporation Limited & Ors.

their mother tongue whose wishes culminate into a contract which

is drafted and concluded in a foreign language.

10. Having perused the precedents on which reliance was placed, we

are of the opinion that the same does not come to the aid of the

appellant. In the instant case, at the outset, it is to be noted that

the respondent No.1 being a NBFC and as a corporate body would

be bound by its policies and procedures with regard to lending and

recovery. In that regard, the applicability of the rate of interest to

be charged is also a matter of policy and cannot be case-specific

unless the individual agreement entered into between the parties

indicate otherwise.

11. In that backdrop, a perusal of the fact situation in the instant case will

disclose that the appellant filed the loan application on 16.09.2005.

It was indicated therein that the ‘Rate option’ is ‘Adjustable’, which

discloses that, what was opted is an Adjustable Rate of Interest, which

will depend on the increase or decrease of the rate of interest. The

issue however is as to whether such an Adjustable Rate of Interest

will apply based only on the rate of interest being fixed/ altered by

RBI or as to whether the Rate of Interest fixed/ altered by Respondent

No.1 - HDFC will apply in respect of the loan transaction. It is in that

regard contended that respondent No.2, representing respondent No.

1 - HDFC had made a tabulation comparing the rate of interest to

represent that it is beneficial to the appellant and had explicitly indicated

in the email dated 05.10.2005 that- “PLR is decided by RBI, whereas

FRR is decided by the individual Bank, HDFC is the only Institution

working on PLR”. It also indicated that in other banks like ICICI there

is a clause that the change in FRR is on sole discretion of the bank.

12. The agreement dated 01.11.2006 executed between the parties inter

alia provides as follows;

“1.1 (e). The expression ‘rate of interest’ means the

Rate of interest referred to in Article 2.2 of this Agreement

and as varied from time to time in terms of this Agreement.

(h) The expression ‘Adjustable Interest Rate’ or “AIR”

means the interest rate announced by HDFC from time to

time as its retail prime lending rate and applied by HDFC

with spread, if any, as may be decided by HDFC, on the

loan of the borrower pursuant to this Agreement.

8 [2024] 3 S.C.R.

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(i) The expression “Retail Prime Lending Rate” or ‘RPLR’

means the interest rate announced by HDFC from time

to time as its retail prime lending rate.

2.2 (a). Until and as varied by HDFC in terms of this

Agreement the AIR applicable to the said loan as at the

date of execution of this agreement is as stated in the

Schedule. is as stated in the Schedule.

3(f). HDFC may vary its retail crime lending rate from time

to time in such manner including as to the loan amounts

as HDFC may deem fit in its own discretion.”

13. At the threshold, it can be noted that the appellant is not an illiterate

person to take the benefit of the precedents relied upon. On the

other hand, when it is contended that the appellant had the option

of securing loan from other banks and that being misled by the email

had entered into the transaction, would by itself indicate that the

appellant was worldly wise. In such circumstance when the parties

have signed the agreement dated 01.11.2006, the terms agreed

therein would bind the parties and the email exchanged between

the parties cannot override the policy decisions of the respondent

No.1 institution. In order to contend that the appellant has been

misled or that the earlier representation will constitute unfair trade

practice, the appellant ought to have raised such contention when

the agreement was to be signed.

14. Having executed the agreement; having agreed to the terms and

conditions; having received the loan amount, the appellant cannot

raise any objection for the first time when the rate of interest was

increased after having acquiesced by signing the agreement. Further,

the appellant having repaid the loan amount with interest as per the

terms of agreement cannot make out a grievance in hindsight and

seek refund of the amount paid.

15. That apart, though it is contended that the appellant had the option

of securing financial assistance from other institutions but was lured

by respondent No.2 through the email and therefore amounts to

unfair trade practice causing loss to the appellant, due to which he is

entitled to be compensated, there is no material on record or evidence

tendered to establish that the appellant had in fact approached any

other financial institution which had agreed to sanction loan or to 

[2024] 3 S.C.R. 9

Rajesh Monga v. Housing Development Finance

Corporation Limited & Ors.

demonstrate that it was a better bargain and if taken from such

institution the appellant was in a better position.

16. Therefore, if all these aspects of the matter are kept in perspective

and the order passed by the NCDRC is perused, we are of the

view that no error has been committed so as to call for interference.

Accordingly, the appeal is dismissed with no order as to costs.

17. Pending application, if any, stands disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal dismissed.

The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.” ;Will – Genuineness of – When not surrounded by suspicious circumstances – By way of Will, the testator bequeathed a part of his property in favour of the respondent-daughter of his brother – Names of his widow-appellant no.1 and minor daughter- appellant no.2 were not mentioned in the Will – Suit filed by the respondent for declaration and injunction was decreed, Will was held to be genuine by the Trial Court – Decree of the Trial Court reversed by First Appellate Court – High Court restored the decree of the Trial Court – Correctness:

* Author

[2024] 3 S.C.R. 146 : 2024 INSC 164

Thangam and Another

v.

Navamani Ammal

(Civil Appeal No. 8935 of 2011)

04 March 2024

[C.T. Ravikumar and Rajesh Bindal,* JJ.]

Issue for Consideration

Genuineness of the Will, a registered document, executed by

testator (husband of appellant no.1 and father of appellant no.2)

in favour of respondent-plaintiff (daughter of his brother).

Headnotes

Will – Genuineness of – When not surrounded by suspicious

circumstances – By way of Will, the testator bequeathed a

part of his property in favour of the respondent-daughter of

his brother – Names of his widow-appellant no.1 and minor

daughter- appellant no.2 were not mentioned in the Will –

Suit filed by the respondent for declaration and injunction

was decreed, Will was held to be genuine by the Trial Court

– Decree of the Trial Court reversed by First Appellate

Court – High Court restored the decree of the Trial Court –

Correctness:

Held: From the evidence of the witnesses with reference to the

health of the testator, the Will cannot be held to be suspicious on

the ground of the alleged ill-health of the testator at the time of

the its execution – It is the admitted case of the appellants that

the testator left behind about 8 acres of land and three houses

– What was bequeathed to the respondent was merely a part of

testator’s entire property i.e. land measuring approximately 3.5

Acres – Meaning thereby the balance property of the testator was

in possession of widow and daughter – This is how the interest of

the natural legal heirs was taken care of – The reason to bequeath

a part of the property in favour of the respondent is also evident

from the material available on record – No error committed by

the High Court in holding that the Will was not surrounded by the

suspicious circumstances as the scribe and one of the witnesses

were unison – The testator was conscious of the fact that he had 

[2024] 3 S.C.R. 147

Thangam and Another v. Navamani Ammal

a wife and a minor child whose interest had been taken care of

by leaving part of the property for them – No merit in the appeal.

[Paras 9.5, 12, 13 and 16]

Code of Civil Procedure, 1908 – Order VIII Rules 3 and 5 –

Specific admission and denial of the pleadings – Need of –

Emphasised – Plaint filed by the respondent contained ten

paragraphs besides the prayer – In the written statement filed

by the appellants, there was no specific denial to the claim

made by the respondent, no para-wise reply was given – In

absence thereof, the allegations in the plaint were deemed

to be admitted:

Held: In the absence of para-wise reply to the plaint, it becomes

a roving inquiry for the Court to find out as to which line in some

paragraph in the plaint is either admitted or denied in the written

statement filed, as there is no specific admission or denial with

reference to the allegation in different paras – Order VIII Rules

3 and 5 CPC clearly provides for specific admission and denial

of the pleadings in the plaint – A general or evasive denial is not

treated as sufficient – Proviso to Order VIII Rule 5 CPC provides

that even the admitted facts may not be treated to be admitted, still

in its discretion the Court may require those facts to be proved –

This is an exception to the general rule – General rule is that the

facts admitted, are not required to be proved – The requirement of

Order VIII Rules 3 and 5 CPC are specific admission and denial

of the pleadings in the plaint – The same would necessarily mean

dealing with the allegations in the plaint para-wise. [Paras 15-15.2]

Case Law Cited

Badat and Co. Bombay Vs. East India Trading Co.,

[1964] 4 SCR 19 : AIR 1964 SC 538; Lohia Properties

(P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram

Kumar, (1993) 4 SCC 6 – relied on.

List of Acts

Code of Civil Procedure, 1908.

List of Keywords

Will; Genuineness; Not surrounded by suspicious circumstances;

Interest of the natural legal heirs taken care of; Pleadings; Admission

and denial of the pleadings.

148 [2024] 3 S.C.R.

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Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.8935 of 2011

From the Judgment and Order dated 18.04.2007 of the High Court

of Madras in SA No.1344 of 1996

Appearances for Parties

K. K. Mani, Ms. T. Archana, Rajeev Gupta, Advs. for the Appellants.

Pulkit Tare, D. Kumanan, Sandeepan Pathak, Suvendu Suvasis

Dash, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Rajesh Bindal, J.

1. The issue under consideration in the present appeal is regarding

genuineness of the Will dated 09.10.1984, which is a registered

document, executed by Palaniandi Udyar in favour of Navamani

Amma.

2. A suit1

 filed by the respondent/plaintiff for declaration and injunction

was decreed by the Trial Court2

, holding the Will to be genuine. In

appeal3

 by the appellants, judgment and decree of the Trial Court was

reversed by the First Appellate Court4

. In second appeal5

 filed by the

respondent the judgment and decree of the First Appellate Court was

set aside and that of the Trial Court was restored by the High Court6

.

3. Before we embark upon to consider the issues in detail, we deem it

appropriate to mention the relations between the parties and certain

brief facts.

3.1. The testator of the Will dated 09.10.1984, Palaniandi Udayar,

was the husband of appellant no. 1 Thangam and father of

appellant no. 2 Laila.

1 O.S. No. 402 of 1986.

2 Additional District Munsif Court, Ariyalur.

3 Appeal Suit No. 7 of 1991.

4 Subordinate Judge, Ariyalur.

5 Second Appeal No. 1344 of 1996.

6 High Court of Judicature at Madras.

[2024] 3 S.C.R. 149

Thangam and Another v. Navamani Ammal

3.2. The Will was executed on 09.10.1984 in favour of Navamani

Amma/Plaintiff, who as per the narration in the Will is said to

be daughter of the brother of the testator.

3.3. The defendant in the suit originally filed was widow of the testator,

however, later on his minor daughter was also impleaded. Both

are the appellants before this Court.

3.4. The appellant no. 1 is the third wife of the testator. The earlier

two wives expired and were not having any child from the loins

of the testator.

3.5. Even as per the admitted case of the defendant no. 1/widow

of the testator, the testator was having total land about 8 acres

besides three houses.

3.6. By way of Will, the testator had bequeathed approximately 3.5

Acres of land in favour of the plaintiff stating therein that she is

like his daughter, being daughter of his brother. The value of

the suit property was estimated to be about ₹16,000/-.

ARGUMENTS

4. In the aforesaid factual matrix, the argument raised by learned counsel

for the appellants challenging the judgment and decree of the High Court

was that the execution of Will was surrounded by various suspicious

circumstances and deserves to be discarded as was rightly done by the

First Appellate Court. The finding of facts recorded by the First Appellate

Court was erroneously reversed by the High Court without the same

being perverse. Re-appreciation of the facts merely to come to another

possible conclusion does not fall within the scope of consideration

of a matter in second appeal. There was no substantial question of

law involved in the second appeal before the High Court. There were

discrepancies in the statements of the scribe and the attesting witnesses

to the Will. The health of the testator was not good and he was not

in a position to understand and comprehend the contents of the Will.

There were differences in the thumb impressions of the testator on the

Will and on the register in the office of the Sub-Registrar.

5. Though, admittedly the testator left behind his widow and a minor

daughter but there is no mention in the Will about the same.

How their interest was taken care of, the Will is silent. In fact, the

appellants were in possession of the suit property. The suit filed by

the respondent was totally misconceived.

150 [2024] 3 S.C.R.

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6. On the other hand, learned counsel for the respondent submitted

that the execution of Will by a person in favour of any other relative

always would mean that the testator wishes to take away some

property from the normal course of inheritance. In fact, the respondent

being like daughter to the testator was taking care of his health,

who was suffering from asthma and chronic cough. It is not that the

entire property owned by the testator was given to the respondent

by way of Will, rather it was only a part thereof. She is in possession

of the suit property after the death of the testator. The need to file

the suit arose more than two years after the death of the testator

as her possession was disturbed by the appellants. Otherwise also

the appellants had not taken any step to take care of the testator

when he was not keeping good health or the property left by him

after his death. Admittedly, the appellant no. 1 was living away from

the testator. Even at the time of his death the appellants were not

present as she came later on. Even the expenses for performing last

rites of the testator were borne by the husband of the respondent.

There is no error in the judgment of the High Court. The findings

recorded by the First Appellate Court being totally perverse were

rightly interfered by the High Court.

6.1. In the written statement filed by the appellants, there was no

specific denial to the claim made by the respondent/plaintiff.

No para-wise reply was given. In the absence thereof, the

allegations in the plaint were deemed to be admitted.

DISCUSSION

7. Heard learned counsel for the parties and perused the relevant

referred record. We may record that the translated copies of whatever

documents have been placed on record by the parties, are being

considered as such as to the same, no dispute has been raised by

the either side.

8. What is required to be considered while examining the correctness of

the judgment of the High Court is as to whether the Will in question

was surrounded by suspicious circumstances whereby the testator

had not mentioned the names of his widow and minor daughter in

the Will and has bequeathed a part of his property to the respondent.

8.1. The appellant no. 1 is the third wife of the testator whereas

the appellant no. 2 is the daughter. From the earlier two wives

no child was born.

[2024] 3 S.C.R. 151

Thangam and Another v. Navamani Ammal

9. Firstly, coming to the health of the testator the Plaintiff/PW-1 stated

in her examination-in-chief that though the testator was having

Asthma but otherwise he was in good health condition. In her

Cross-Examination PW-1 stated that the testator was suffering from

Asthma and Cough for about 5 to 6 years. She denied that the

testator was having any drinking habit. She denied the suggestion

that the testator was bed-ridden for three months before executing

the Will.

9.1. PW-2/Vadivelu, who is an attesting witness to the Will, in his

cross-examination stated that he inquired about the health of

the testator and he told PW-2 that he was having some cough

problem and was otherwise suffering from T.B.

9.2. PW-3/Govindasamy, who was a witness in the office of SubRegistrar, in his cross-examination stated that at the time of

execution of Will the testator was having cough.

9.3. PW-4/Subramanian, who is Scribe of the Will, stated in his

examination-in-chief that at the time of execution of Will the

testator was in good physical condition and he was having

cough only. He was not put any question in this regard in

cross-examination.

9.4. DW-1/Thangam Ammal, who is the widow of the testator, stated

in her examination-in-chief that before his death the testator

‘was suffering from lever wound and he had dysentery and

suffered very much’ (sic). DW-1 in her cross-examination sated

that three months before his death the testator was not in good

physique and before that he was in good condition. DW-1 further

stated that the testator was bed ridden for 3 months and she

was taking care of him.

9.5. From the aforesaid evidence of the witnesses with reference

to the health of the testator we do not find that he was not

in good senses and was unable to understand his welfare or

take correct decisions. Hence, the Will cannot be held to be

suspicious on the ground of the alleged ill-health of the testator

at the time of the execution of the Will.

10. Now, coming to another aspect with reference to the genuineness of

the Will, the PW-4/Subramanian, who is scribe of the Will, stated in

his examination-in-chief that the testator had put his thumb impression 

152 [2024] 3 S.C.R.

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on the Will and that he witnessed the same. He further stated the

Will was registered in the office of Sub-Registrar.

10.1. In his cross-examination, he stated that on enquiry testator

told him that the Plaintiff can take the suit property and other

properties can be taken by the Defendants i.e., his wife and

daughter. This shows that even at the time of execution of the

Will, the testator was fully conscious of the welfare of his widow

and minor daughter as sufficient property was left for them.

11. The Plaintiff examined PW-2/Vadivelu, who was the attesting witness

to the Will. In his examination-in-chief he stated that the testator was

very well known to him and that he was witness in the above Will. He

stated that the Will was written under a tree at Palavur. Details were

given by the Testator. After writing of Will, the testator asked PW-4/

scribe to read over the same. After hearing and being satisfied the

testator had put his thumb impression. He and one other attesting

witness, Muruganian (DW-2), had witnessed the testator putting

thumb impression on the Will. In his cross-examination he stated

that the Will was written without compulsion and in good conscious

were expressed by Testator alone. He asked testator whether he

was having any legal heir and testator told him that as per his desire

alone the Will was written.

11.1. The Defendants examined Murugaian, who was also an

attesting witness to the Will, as DW-2, who in his examinationin-chief stated that he was asked by Paramasivam, who is

husband of the Plaintiff, to be witness in the office of SubRegistrar. He further stated that he was requested to sign

as witness and after putting his signature he returned. DW-2

further stated that he did not see the testator put his thumb

impression. In Cross-examination DW-2 stated that he saw

the testator sitting under a tree and that the testator told him

that he was writing the Will in favour of his heirs.

12. It is the admitted case of the appellants that the testator left behind

about 8 acres of land and three houses. What has been bequeathed

to the respondent is merely a part of testator’s entire property i.e.

land measuring approximately 3.5 Acres. Meaning thereby the

balance property of the testator is in possession of widow and

daughter. This is how the interest of the natural legal heirs has

been taken care of. 

[2024] 3 S.C.R. 153

Thangam and Another v. Navamani Ammal

12.1. The reason to bequeath a part of the property in favour of the

respondent is also evident from the material available on record.

It has come in evidence that the testator was not keeping

good heath as he was suffering from asthma and cough. The

appellants were not living with him for quite sometime as it

is the admitted case of DW-1 in her cross-examination that

she had gone to her paternal home on account of marriage

of her brother and was not living with the testator at the time

of execution of Will. It has also come on record that she was

not present when the testator died. Expenses for his last rites

were borne by the husband of the respondent who was taking

care of the land of the testator.

12.2. There is nothing on record to suggest that the appellants were

taking care of the property left by the testator immediately

after his death or that any steps were taken by them to get

the same mutated in their favour.

13. From the aforesaid evidence on record, in our opinion, no error has

been committed by the High Court in holding that the Will was not

surrounded by the suspicious circumstances as the scribe and one

of the witnesses were unison. The testator was conscious of the fact

that he had a wife and a minor child whose interest had been taken

care of by leaving part of the property for them. It came in response

to a specific question asked by PW-4 to the testator at the time of

execution of the Will. It was so stated by PW-4 in his cross-examination.

Even in para 14 of the written statement, the appellants stated that

they are enjoying the suit properties and other properties left by the

testator. This clearly shows that certain part of the properties was

left by the testator for his widow and minor daughter.

14. Before we part with the judgment we are constraint to observe the

manner in which the pleadings have been filed in the Trial Courts

or may be in some cases in the High Courts.

14.1. A perusal of the plaint filed by the respondent shows that it

contains ten paragraphs besides the prayer. In the written

statement filed by the appellants, no specific para-wise reply

was given. It was the own story of the respondent containing

fifteen paragraphs besides the prayer in para 16.

15. In the absence of para-wise reply to the plaint, it becomes a roving

inquiry for the Court to find out as to which line in some paragraph 

154 [2024] 3 S.C.R.

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in the plaint is either admitted or denied in the written statement

filed, as there is no specific admission or denial with reference to

the allegation in different paras.

15.1. Order VIII Rules 3 and 5 CPC clearly provides for specific

admission and denial of the pleadings in the plaint. A general

or evasive denial is not treated as sufficient. Proviso to Order

VIII Rule 5 CPC provides that even the admitted facts may

not be treated to be admitted, still in its discretion the Court

may require those facts to be proved. This is an exception to

the general rule. General rule is that the facts admitted, are

not required to be proved.

15.2. The requirement of Order VIII Rules 3 and 5 CPC are specific

admission and denial of the pleadings in the plaint. The same

would necessarily mean dealing with the allegations in the

plaint para-wise. In the absence thereof, the respondent can

always try to read one line from one paragraph and another

from different paragraph in the written statement to make out

his case of denial of the allegations in the plaint resulting in

utter confusion.

15.3. In case, the defendant/respondent wishes to take any

preliminary objections, the same can be taken in a separate

set of paragraphs specifically so as to enable the plaintiff/

petitioner to respond to the same in the replication/rejoinder,

if need be. The additional pleadings can also be raised in the

written statement, if required. These facts specifically stated

in a set of paragraphs will always give an opportunity to the

plaintiff/petitioner to respond to the same. This in turn will enable

the Court to properly comprehend the pleadings of the parties

instead of digging the facts from the various paragraphs of the

plaint and the written statement.

15.4. The issue regarding specific admission and denial of the

pleadings was considered by this Court in Badat and Co.

Bombay Vs. East India Trading Co7

. While referring to Order

VIII Rules 3 to 5 of the CPC it was opined that the aforesaid

Rules formed an integrated Code dealing with the manner in

7 [1964] 4 SCR 19 : AIR 1964 SC 538.

[2024] 3 S.C.R. 155

Thangam and Another v. Navamani Ammal

which the pleadings are to be dealt with. Relevant parts of

para ‘11’ thereof are extracted below:

"11. Order 7 of the Code of Civil Procedure prescribes,

among others, that the plaintiff shall give in the

plaint the facts constituting the cause of action and

when it arose, and the facts showing the court has

jurisdiction. The object is to enable the defendant

to ascertain from the plaint the necessary facts so

that he may admit or deny them. Order VIII provides

for the filing of a written-statement, the particulars to

be contained therein and the manner of doing so;

XXX XXX XXX

These three rules form an integrated code dealing

with the manner in which allegations of fact in

the plaint should be traversed and the legal

consequences flowing from its non- compliance.

The written statement must deal specifically with

each allegation of fact in the plaint and when a

defendant denies any such fact, he must not do so

evasively, but answer the point of substance. If his

denial of a fact is not specific but evasive, the said

fact shall be taken to be admitted. In such an event,

the admission itself being proof, no other proof is

necessary.”

15.5. The matter was further considered by this Court in Lohia

Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs.

Atmaram Kumar8 after the 1976 Amendment Act in CPC

whereby the existing Rule 5 of Order VIII of the CPC was

numbered as sub-rule (1) and three more sub-rules were added

dealing with different situations where no written statement

is filed. In paras 14 and 15 of the aforesaid judgment, the

position of law as stated earlier was reiterated. The same are

extracted below:

"14. What is stated in the above is, what amount to admit

a fact on pleading while Rule 3 of Order 8 requires

8 (1993) 4 SCC 6.

156 [2024] 3 S.C.R.

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that the defendant must deal specifically with each

allegation of fact of which he does not admit the truth.

15. Rule 5 provides that every allegation of fact in the

plaint, if not denied in the written statement shall be

taken to be admitted by the defendant. What this

rule says is, that any allegation of fact must either be

denied specifically or by a necessary implication or

there should be at least a statement that the fact is

not admitted. If the plea is not taken in that manner,

then the allegation shall be taken to be admitted.”

15.6. We have made the aforesaid observations as regularly this

Court is faced with the situation where there are no specific

para-wise reply given in the written statement/counter affidavit

filed by the defendant(s)/respondent(s). In our opinion, if the

aforesaid correction is made, it may streamline the working.

16. For the reasons mentioned above, we do not find any merit in the

present appeal. The same is, accordingly, dismissed.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal dismissed.

s.2(11), CPC defines a “legal representative – Legal representatives of a deceased are liable only to the extent of the estate which they inherit – Where the decree or order is not against the estate of a deceased sole proprietor but based on the skills and expertise of the sole proprietor, the obligations which had to be performed by the sole proprietor would come to an end on his demise and the same cannot be imposed on his legal heirs or representatives – Such a position is distinguished from a position where the estate of the deceased sole proprietor would become liable to satisfy the decree in monetary terms as a proprietorship firm is not a separate legal entity as compared to the proprietor and his estate would become liable only to satisfy a decree or an order in monetary terms on his demise – In the case of a personal obligation imposed on a person under the contract and on the demise of such person, his estate does not become liable and therefore, the legal representatives who represent the estate of a deceased would obviously not be liable and cannot be directed to discharge the contractual obligations of the deceased – Legal representatives of the deceased opposite party-appellants not liable to discharge the obligation which had to be discharged by the deceased opposite party in his personal capacity and hence that portion of the impugned orders of the NCDRC, State Commission and District Forum are set aside.

* Author

[2024] 3 S.C.R. 127 : 2024 INSC 159

Vinayak Purshottam Dube (Deceased), Through Lrs

v.

Jayashree Padamkar Bhat & Others

(Civil Appeal Nos. 7768-7769 of 2023)

01 March 2024

[B.V. Nagarathna* and Ujjal Bhuyan, JJ.]

Issue for Consideration

Appellants, legal representatives of the original opposite party-a sole

proprietor (since deceased) who had entered into a Development

Agreement with the respondents-complainants, if liable to discharge

the obligations which had to be discharged by him in his personal

capacity based on his skills and expertise.

Headnotes

Consumer Protection – Legal representatives of sole

proprietor-developer (since deceased), if liable for personal

contract of the deceased – Contract Act, 1872 – ss.37, 40

– Code of Civil Procedure, 1908 – s.2(11) – Sole proprietordeveloper entered into a Development Agreement with the

respondents-complainants – Complainants alleged failure

to fulfill payment obligations, breaches of the agreement

including deviations from sanctioned plan, non-construction

of a compound wall, etc. – Sole proprietor died during the

pendency of the matter before NCDRC – NCDRC held that

appellants-legal representatives of the sole proprietor were

liable both w.r.t the monetary payments that he was directed

to pay and also to comply with the other directions issued

– Appellants, if liable to comply with obligations such as

construction to be made and certain approvals etc. to be

obtained on completion of the construction which had to

be performed by sole proprietor-developer in his personal

capacity based on his skills and expertise:

Held: s.37, Contract Act states that a promise made by a promisor

is binding on his representatives in case of his/her death, unless a

contrary intention appears from the contract – Legal representatives

are liable for the debts of their predecessor, but their liability is

limited to the extent of the estate of the deceased inherited by them

– Thus, the representatives of a promisor are bound to perform 

128 [2024] 3 S.C.R.

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the promisor’s contract to the extent of the assets of the deceased

falling in their hands – But they are not personally liable under

the contracts of the deceased and are also not liable for personal

contracts of the deceased – When personal considerations are the

basis of a contract they come to an end on the death of either party,

unless there is a stipulation express or implied to the contrary –

This is especially so when the contracts involve exercise of special

skills such as expressed in s.40, Contract Act – A contract involving

exercise of individual’s skills or expertise of the promisor or which

depends upon his/her personal qualification or competency, the

promisor has to perform the contract by himself and not by his/her

representatives – s.2(11), CPC defines a “legal representative –

Legal representatives of a deceased are liable only to the extent

of the estate which they inherit – Where the decree or order is

not against the estate of a deceased sole proprietor but based

on the skills and expertise of the sole proprietor, the obligations

which had to be performed by the sole proprietor would come to

an end on his demise and the same cannot be imposed on his

legal heirs or representatives – Such a position is distinguished

from a position where the estate of the deceased sole proprietor

would become liable to satisfy the decree in monetary terms as a

proprietorship firm is not a separate legal entity as compared to

the proprietor and his estate would become liable only to satisfy a

decree or an order in monetary terms on his demise – In the case

of a personal obligation imposed on a person under the contract

and on the demise of such person, his estate does not become

liable and therefore, the legal representatives who represent the

estate of a deceased would obviously not be liable and cannot be

directed to discharge the contractual obligations of the deceased –

Legal representatives of the deceased opposite party-appellants not

liable to discharge the obligation which had to be discharged by the

deceased opposite party in his personal capacity and hence that

portion of the impugned orders of the NCDRC, State Commission

and District Forum are set aside. [Paras 20, 21, 23, 24, 27, 31]

Proprietary concern – Jurisprudential status – Discussed.

Legal right – Characteristics of, according to Salmond –

Salmond’s classification of proprietary and personal rights;

inheritable and uninheritable rights – Discussed.

Contract – Contract of service, personal to the promisor and

on his death he is discharged from the contract:

[2024] 3 S.C.R. 129

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

Held: A contract of service is also personal to the promisor – This is

because when a person contracts with another to work or to perform

service, it is on the basis of the individual’s skills, competency or other

qualifications of the promisor and in circumstances such as the death

of the promisor he is discharged from the contract – Correspondingly,

duties or obligations which are personal in nature cannot be transmitted

from a person who had to personally discharge those duties, on his

demise, to his legal representatives – Just as a right is uninheritable

and the right personal to him dies with the owner of the right, similarly,

a duty cannot be transferred to the legal representatives of a deceased

if the same is personal in nature. [Paras 21, 22]

Code of Civil Procedure, 1908 – s.50:

Held: Any decree which is relatable to the extent of the property

of the deceased which has come to the hands of the legal

representatives and has not been duly disposed of, the same would

be liable for execution by a decree holder so as to compel the

legal representatives to satisfy the decree – In this context, even

a decree for preventive injunction can also be executed against

the legal representatives of the deceased judgment-debtor if such

a decree is in relation to the property or runs with the property if

there is a threat from such legal representatives. [Para 30]

Words and expressions – “legal representative” – Code of

Civil Procedure, 1908 – s.2(11) – Discussed. [Para 23]

Case Law Cited

Raghu Lakshminarayanan v. Fine Tubes, [2007] 4 SCR

885 : (2007) 5 SCC 103; Ajmera Housing Corporation

vs. Amrit M. Patel (Dead) through LRs, (1998) 6 SCC

500 – relied on.

Custodian of Branches of Banco National Ultramarino

vs. Nalini Bai Naique, [1989] 2 SCR 810 : AIR 1989

SC 1589 – referred to.

Books and Periodicals Cited

Report of the Insolvency Law Committee, Page

No.117-118, Government of India (Ministry of Corporate

Affairs, February, 2020); PJ Fitzgerald, Salmond on

Jurisprudence, Page Nos.220, 221 (Universal Law

Publishing Co. Pvt. Ltd., 12th Edition, 1966) – referred to.

130 [2024] 3 S.C.R.

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List of Acts

Contract Act, 1872; Code of Civil Procedure, 1908; Indian

Succession Act, 1925.

List of Keywords

Consumer Protection; Legal representatives; Personal liability for

personal contracts of the deceased; Obligations to be discharged

in personal capacity; Development Agreement; Sole proprietor;

Special skills; Expertise; Contract of service; Personal obligation;

Injunction; Vinculum juris.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7768-7769

of 2023

From the Judgment and Order dated 02.05.2018 of the National

Consumers Disputes Redressal Commission, New Delhi in RA Nos.

26 and 27 of 2017

Appearances for Parties

Aniruddha Deshmukh, Adv. for the Appellants.

Abhishek Yadav, Ruchit Mohan, Braj Kishore Mishra, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Nagarathna, J.

These appeals have been filed by the legal representatives of the

opposite party-sole proprietor against the common final judgment

and order dated 02.05.2018 passed by the National Consumer

Disputes Redressal Commission (hereinafter referred to as “NCDRC”)

in Review Application No.26 of 2017 in Review Petition No.3283

of 2008 and Review Application No.27 of 2017 in Review Petition

No.2794 of 2008.

The NCDRC vide the impugned order dismissed the review

applications while affirming its earlier order dated 31.05.2016 passed

in review petition with reference to the order dated 03.01.2017 passed

by this Court in Special Leave Petition (Civil)… CC Nos.24515-

[2024] 3 S.C.R. 131

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

24516 of 2016 granting liberty to the appellants to resort to remedy

of review before the NCDRC.

2. The brief facts giving rise to the present appeal are as follows:

2.1 The appellants herein are the legal heirs of the original opposite

party in the consumer complaint before the District Forum. All

the respondents herein are the complainants.

2.2 For the sake of convenience, the parties shall be referred to

as complainants and opposite party.

2.3 The complainants, Jayashree Padmakar and others, owners

of property CTS Nos.1465/1 and 1465/2, ‘C’ Ward, Kolhapur,

had entered into a Development Agreement dated 30.07.1996

with the opposite party. According to the agreement, the

complainants were entitled to receive eight residential flats and

Rs.6,50,000/- as consideration. Allegedly, the opposite party

failed to fulfill the payment obligations, resulting in payment

of a balance amount and accruing interest at 18% per annum

with effect from 01.04.1997. The complainants alleged breaches

of the agreement, including deviations from sanctioned plan,

non-construction of a compound wall impacting parking and

issues regarding access and unauthorized constructions beyond

sanctioned plan, subsequently sold to third parties. They also

noted defects in the building construction, such as cracks, in

the building, terrace work being not completed and the absence

of provision for electricity meters. Despite notices issued by

the complainants, the opposite party denied the allegations

asserting that the complainants owed them Rs.8,60,000/- for

construction and amenities.

2.4 Seeking a resolution of the ongoing breaches under the

Consumer Protection Act, the complainants pursued their

legal recourse to address the deadlock by filing Complaint

No.184 of 2005 before the District Consumer Forum, Kolhapur.

Their prayers for relief were several: they demanded payment

of outstanding dues inclusive of interest; reimbursement of

expenses incurred and compensation for the mental distress

caused to them. Additionally, they sought structural rectification,

emphasizing on the removal of unauthorized constructions;

rectification of construction defects; completion of pending work 

132 [2024] 3 S.C.R.

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and the provision of essential amenities as initially agreed

upon.

2.5 In his version, the original opposite party disputed the existence

of any consumer relationship, denied breaches and argued for

the resolution of contractual disputes through the civil court. The

opposite party claimed that the complaint was time-barred and

sought its dismissal with compensatory costs of Rs.10,000/-.

2.6 The District Consumer Forum at Kolhapur, vide order dated

16.10.2006, on perusal of various supporting documents,

including the Development Agreement, building plans, notices,

replies, certificates, estimates, receipts and affidavits partly

allowed the Consumer Complaint No.184 of 2005 filed against

the opposite party. The District Forum observed that as per the

Development Agreement between the parties, the transaction

between the parties was not one of sale and purchase of property

but of development of property. Since the services regarding

construction are covered by the Consumer Protection Act, the

dispute was held to be a consumer dispute. Further, the District

Forum refused to take into consideration the points raised by

the complainants regarding defects in construction, amenities

and facilities due to lack of evidence provided in that regard.

However, the opposite party was found to be liable to pay to

the complainants an amount of Rs. l,65,000/- along with interest

at the rate of 18% per annum with effect from 01.05.1997 till

payment; an amount of Rs. 1,85,000/- along with interest at the

rate of 18% per annum with effect from 31.08.1997 till payment;

and an amount of Rs.1,50,000/- at the time of conveyance.

2.7 Both the parties challenged the order of the District Forum before

the Consumer Disputes Redressal Commission, Maharashtra

State, Mumbai (for short, “the State Commission”). The State

Commission, vide its common judgment dated 08.04.2008 in

First Appeal Nos.2570 of 2006 and 1115 of 2007, partly modified

the order of the District Forum by setting aside the directions

to pay Rs. 1.85 lakhs and Rs. 1.65 lakhs as the said claims

were held to be time-barred but upheld the direction to pay

Rs. 1.5 lakhs. However, the State Commission placed reliance

on some other clauses of the Development Agreement such

as clause 4(k), to hold that the building was incomplete and

that the opposite party was liable to get the construction of the 

[2024] 3 S.C.R. 133

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

compound wall and give separate access in terms of Schedule-II

of the Development Agreement. The opposite party was further

directed to obtain and handover the Completion Certificate to

the complainants; to execute the Conveyance Deed and to

give electricity connections to the complainants for which they

had already paid Rs.15,000/- to the developer-opposite party.

2.8 The complainants as well as the opposite party approached the

NCDRC by filing Revision Petition Nos.3283 of 2008 and 2794

of 2008. During the pendency of the petition before the NCDRC,

the original opposite party-Vinayak Purushottam Dube died

and his legal representatives i.e., his wife and two sons were

brought on record, who are the appellants before this Court. The

NCDRC, vide order dated 31.05.2016, again partly modified the

order of the State Commission. The NCDRC disagreed with the

finding and conclusion of the State Commission with respect

to the time-barred transaction of Rs. 1.85 lakhs and Rs. 1.65

lakhs, by observing that the limitation of the said claims had to

be adjudged by looking at the transaction between the parties

as a whole, which established a continuous cause of action

in the matter. The NCDRC upheld the directions given by the

State Commission with respect to the Completion Certificate;

Conveyance Deed; Electricity Connection, etc., since the

developer did not challenge any part of those directions as the

same were in accordance with the Development Agreement. In

other words, the NCDRC upheld the order of payment of 1.65

lakhs and 1.85 lakhs along with interest as directed by the

District Forum, and also upheld the slew of directions issued

by the State Commission to the developer-opposite party.

3. The appellants-opposite party thereafter approached this Court by

preferring Special Leave Petition (Civil)…. CC Nos.24515-24516

of 2016 to challenge the order of the NCDRC dated 31.05.2016 in

Revision Petition Nos.3283 of 2008 and 2794 of 2008. This Court,

vide order dated 03.01.2017, refused to interfere with the view taken

by the NCDRC and disposed of the same by granting liberty to the

appellants-opposite party herein to resort to the remedy of review

before the National Commission.

4. Thereafter, the appellants-opposite party filed Review Application

No.26 of 2017 and the complainants filed Review Application No.27 

134 [2024] 3 S.C.R.

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of 2017, both before the NCDRC and the order of review proceeding

is assailed in the present case. The NCDRC, vide order dated

02.05.2018, upheld its earlier findings on the question of limitation,

status of complainants as consumers and the relief being in excess

of the payment made by the complainants. Further, NCDRC refused

to accept the contention of the appellants-opposite party that after

the death of the original owner, the legal representatives are not

accountable for the liabilities under the agreement. In paragraph 12

of the order, the NCDRC held that the death of a developer has no

effect upon the obligations of the developer under the Development

Agreement and the same have to be executed by the legal heirs

of the developer. The relevant part of the said paragraph 12 is

extracted as under:

“12. Further, we have no reason to agree with the

contention raised by the review applicant that after the

death of the original owner, the legal representatives are

not accountable for the liabilities under the agreement.

In the eventuality of death of the developer, it cannot be

stated that various clauses of the development agreement

between the parties becomes redundant or the complainant

is not entitled to seek execution of the provisions of the

development agreement. Such execution has to be made

by the legal heirs of the developer only.”

5. The legal representatives of the opposite party being aggrieved by

the aforesaid reasoning of the NCDRC have preferred these appeals.

6. We have heard learned counsel Sri Aniruddha Deshmukh for

the appellants and learned counsel Sri Abhishek Yadav for the

respondents and perused the material on record.

7. The controversy in these appeals is in a very narrow compass. No

doubt, the complainants succeeded before the District Forum, the

State Commission as well as the NCDRC. During the pendency

of the revision preferred by the original opposite party before the

NCDRC, the original opposite party died. His legal representatives

i.e. his widow and two sons were brought on record. In fact, the

complainants also had preferred their Revision Petition. The NCDRC

reasoned that the legal representatives of the opposite party were

liable both with regard to the monetary payments that the original

opposite party was directed to pay and also liable to comply with 

[2024] 3 S.C.R. 135

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

the other directions issued by the District Forum as modified by the

State Commission and thereafter modified by the NCDRC.

8. Learned counsel for the appellants submitted that the appellants as

the legal representatives of the deceased opposite party are willing

to make the payment as directed. But as far as the other set of the

directions are concerned, it is not permissible for them to comply

with them inasmuch as the said directions were issued by the District

Forum as well as the State Commission personally against the

opposite party who is since deceased. Those directions are with regard

to construction of compound wall so as to give separate access in

terms of Schedule II of the Development Agreement; to obtain and

handover completion certificate to the complainants-respondents;

to execute the conveyance deed and to give electricity connection

and such other directions.

9. Learned counsel for the appellants contended that the aforesaid

directions cannot now be complied with by the legal representatives

of the deceased - original opposite party inasmuch as those were

personal directions as issued against the original opposite party. He

contended that the original opposite party was having the proprietorship

concern and therefore, the estate of the deceased proprietor would

be liable insofar as the satisfaction of the compensatory payments

only but not for complying the other directions issued which cannot

now fall on his legal representatives to comply. It was contended

that the original opposite party had skills and expertise to comply

with the said directions as a developer but on his demise, his

legal representatives, namely, his widow and two sons, cannot be

compelled to carry out those directions as they neither possess the

necessary skills nor expertise and further, they are not continuing

the proprietorship concern of the original opposite party which has

now been wound up on the demise of the sole proprietor. Therefore,

learned counsel for the appellants-opposite party contended that the

various clauses of the Development Agreement which had placed

duties and obligations on the original opposite party, who is since

deceased, cannot now be enforced against and performed by his

legal representatives or heirs.

10. Per contra, learned counsel for the complainants–respondents

submitted that no doubt the legal representatives of the original

opposite party would comply with the directions for payments from 

136 [2024] 3 S.C.R.

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out of the estate of the deceased opposite party but the complainants

would be left high and dry insofar as the other obligations which had

to be discharged by the opposite party and therefore, the NCDRC

was justified in directing the legal representatives of the deceased

opposite party to take steps for also complying with those directions.

11. Having heard learned counsel for the respective parties, we note

that admittedly the original opposite party was in the business of

real estate and as a developer, had entered into the Development

Agreement dated 30.07.1996 with the complainants. According to

the complainants-respondents herein, they were entitled to eight

residential flats and there were various other terms and conditions

of the said Development Agreement which imposed an obligation

on the original opposite party.

12. The question is: what would happen to the obligations imposed

personally on the original opposite party on his demise? No doubt, the

estate of the original opposite party would be liable for any monetary

decree or directions for payment issued in the present case. However,

what about the obligations which had to be performed under the

Development Agreement such as certain construction to be made

and certain approvals etc. to be obtained by him on completion of

the construction. Can the legal representatives be liable to comply

with those obligations under the Development Agreement on the

demise of the original opposite party?

13. In this regard, it is necessary to discuss the jurisprudential status of

a proprietary concern. In a report of the Insolvency Law Committee

submitted in February, 2020, the definition of ‘Proprietorship Firms’

reads as under:

“2. DEFINITION OF ‘PROPRIETORSHIP FIRMS’

2.2 Proprietorship firms are businesses that are owned,

managed and controlled by one person. They are the

most common form of businesses in India and are based

in unlimited liability of the owner. Legally, a proprietorship

is not a separate legal entity and is merely the name

under which a proprietor carries on business. [Raghu

Lakshminarayanan vs. Fine Tubes (2007) 5 SCC 103.]

Due to this, proprietorships are usually not defined in

statutes. Though some statutes define proprietorships, 

[2024] 3 S.C.R. 137

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

such definition is limited to the context of the statute. For

example, Section 2 (haa) of the Chartered Accountants Act,

1949 defined a ‘sole proprietorship’ as “an individual who

engages himself in practice of accountancy or engages

in services…”. Notably, ‘proprietorship firms’ have also

not been statutorily defined in many other jurisdictions.”

[Source: Report of the Insolvency Law Committee, Page

No.117-118, Government of India (Ministry of Corporate

Affairs, February, 2020).]

14. According to Salmond, there are five important characteristics of a

legal right:

1. It is vested in a person who may be distinguished as the owner

of the right, the subject of it, the person entitled, or the person

of inherence.

2. It avails against a person, upon whom lies the correlative duty.

He may be distinguished as the person bound, or as the subject

of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour of

the person entitled. This may be termed the content of the right.

4. The act or omission relates to something (in the widest sense

of that word), which may be termed the object or subject matter

of the right.

5. Every legal right has a title, that is to say, certain facts or events

by reason of which the right has become vested in its owner.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page

No.221 (Universal Law Publishing Co. Pvt. Ltd., 12th

Edition, 1966)]

15. Salmond also believed that no right can exist without a corresponding

duty. Every right or duty involves a bond of legal obligation by which

two or more persons are bound together. Thus, there can be no

duty unless there is someone to whom it is due; there can be no

right unless there is someone from whom it is claimed; and there

can be no wrong unless there is someone who is wronged, that is

to say, someone whose right has been violated. This is also called

as vinculum juris which means “a bond of the law”. It is a tie that

legally binds one person to another. [Source: PJ Fitzgerald, Salmond 

138 [2024] 3 S.C.R.

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on Jurisprudence, Page No.220 (Universal Law Publishing Co. Pvt.

Ltd., 12th Edition, 1966)].

16. Salmond’s classification of proprietary and personal rights are

encapsulated as under:

Proprietary Rights Personal Rights

1 Proprietary rights means a

person’s right in relation to

his own property. Proprietary

rights have some economic

or monetary value.

Personal rights are

rights arising out of any

contractual obligation or

rights that relate to status.

2 Proprietary rights are

valuable.

Personal rights are not

valuable in monetary terms.

3 Proprietary rights are not

residual in character.

Personal rights are the

residuary rights which

remain after proprietary

rights have been subtracted.

4 Proprietary rights are

transferable.

Personal rights are not

transferable.

5 Proprietary rights are the

elements of wealth for man.

Personal rights are merely

elements of his well-being.

6 Proprietary rights possess

not merely judicial but also

economic importance.

Personal rights possess

merely judicial importance.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page No.238

(Universal Law Publishing Co. Pvt. Ltd., 12th Edition, 1966)].

17. Salmond’s classification of inheritable and uninheritable rights is

stated as under:

Inheritable Rights Uninheritable Rights

A right is inheritable if it

survives the owner.

A right is uninheritable if it dies

with the owner.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page Nos.415

& 442 (Universal Law Publishing Co. Pvt. Ltd., 12th Edition, 1966)].

18. On a reading of the above, it is clear, when it comes to personal

rights (as opposed to a proprietary rights) are rights arising out of any 

[2024] 3 S.C.R. 139

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

contractual obligations or the rights that relate to status. Such personal

rights are not transferable and also not inheritable. Correspondingly,

Section 306 of the Indian Succession Act, 1925 (for short, “1925

Act”) applies the maxim “actio personalis moritur cum persona” (a

personal right of action dies with the person) which is limited to a

certain class of cases and would apply when the right litigated is

not heritable. By the same logic, a decree holder cannot enforce

the same against the legal representatives of a deceased judgment

debtor unless the same survives as against his legal representatives.

Section 306 of the 1925 Act reads as under:

“Section 306 – Demands and rights of action of or

against deceased survive to and against executor or

administrator.—

All demands whatsoever and all rights to prosecute or

defend any action or special proceeding existing in favor of

or against a person at the time of his decease, survive to

and against his executors or administrators; except causes

of action for defamation, assault, as defined in the Indian

Penal Code, 1860 (45 of 1860) or other personal injuries

not causing the death of the party; and except also cases

where, after the death of the party, the relief sought could

not be enjoyed or granting it would be nugatory.”

19. We may also advert to Sections 37 and 40 of the Indian Contract

Act, 1872, which read as under:-

“37. Obligation of parties to contracts.—The parties

to a contract must either perform, or offer to perform,

their respective promises, unless such performance is

dispensed with or excused under the provisions of this

Act, or of any other law.

Promises bind the representatives of the promisors in case

of the death of such promisors before performance, unless

a contrary intention appears from the contract.

x x x

40.Person by whom promise is to be performed.—If it

appears from the nature of the case that it was the intention

of the parties to any contract that any promise contained 

140 [2024] 3 S.C.R.

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in it should be performed by the promisor himself, such

promise must be performed by the promisor. In other

cases, the promisor or his representatives may employ a

competent person to perform it.”

20. Section 37 of the aforesaid Act states that a promise made by

a promisor is binding on his representatives in case of his/her

death, unless a contrary intention appears from the contract. Legal

representatives are liable for the debts of their predecessor, but

their liability is limited to the extent of the estate of the deceased

inherited by them. Therefore, the representatives of a promisor are

bound to perform the promisor’s contract to the extent of the assets

of the deceased falling in their hands. But they are not personally

liable under the contracts of the deceased and are also not liable

for personal contracts of the deceased. Therefore, when personal

considerations are the basis of a contract they come to an end on

the death of either party, unless there is a stipulation express or

implied to the contrary. This is especially so when the contracts

involve exercise of special skills such as expressed in Section 40

of the Indian Contract Act, 1872.

21. Thus, a contract can be performed vicariously by the legal

representatives of the promisor depending upon the subject matter

of the contract and the nature of performance that was stipulated

thereto. But a contract involving exercise of individual’s skills or

expertise of the promisor or which depends upon his/her personal

qualification or competency, the promisor has to perform the contract

by himself and not by his/her representatives. A contract of service

is also personal to the promisor. This is because when a person

contracts with another to work or to perform service, it is on the

basis of the individual’s skills, competency or other qualifications of

the promisor and in circumstances such as the death of the promisor

he is discharged from the contract.

22. Correspondingly, duties or obligations which are personal in

nature cannot be transmitted from a person who had to personally

discharge those duties, on his demise, to his legal representatives.

Just as a right is uninheritable and the right personal to him dies

with the owner of the right, similarly, a duty cannot be transferred

to the legal representatives of a deceased if the same is personal

in nature.

[2024] 3 S.C.R. 141

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

In Raghu Lakshminarayanan vs. Fine Tubes, (2007) 5

SCC 103, while distinguishing a juristic person such as a

company, a partnership or an association of persons from

a proprietary concern, it was observed that a person who

carries on business in the name of a business concern, but

he being a proprietor thereof, would be solely responsible

for conduct of its affairs. A proprietary concern is not

a company. Further, a proprietary concern is only the

business name in which the proprietor of the business

carries on the business. A suit by or against a proprietary

concern is by or against the proprietor of the business. In

the event of the death of the proprietor of a proprietary

concern, it is the legal representatives of the proprietor who

alone can sue or be sued in respect of the dealings of the

proprietary business which is by representing the estate

of the deceased proprietor. The real party who is being

sued is the proprietor of the said business. Therefore, if

a proprietor had to carry on certain obligations personally

under a contract, the same cannot be fastened on his

legal representatives.

23. Further, Section 2(11) of the Code of Civil Procedure, 1908 (for short,

“CPC”) defines a “legal representative” to mean a person who in

law represents the estate of a deceased person, and includes any

person who intermeddles with the estate of the deceased and where

a party sues or is sued in a representative character the person on

whom the estate devolves on the death of the party so suing or

sued. Thus, the legal representatives of a deceased are liable only

to the extent of the estate which they inherit.

In Custodian of Branches of Banco National Ultramarino vs.

Nalini Bai Naique, AIR 1989 SC 1589, it was observed that the

expression “legal representative” as defined in the CPC is applicable

to proceedings in a suit. It means a person who in law represents

the estate of a deceased person and includes any person who

intermeddles with the estate of the deceased and where a party

sues or is sued in a representative character the person on whom

the estate devolves on the death of the party so suing or sued.

The definition is inclusive in character and its scope is wide as it is

not confined to legal heirs only, instead, it stipulates a person who

may or may not be a heir, competent to inherit the property of the 

142 [2024] 3 S.C.R.

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deceased or he should represent the estate of the deceased person.

It includes heirs as well as persons who represent the estate even

without title, either as executors or administrators in possession of

the estate of the deceased. All such persons would be covered by

the expression “legal representative”. If there are many heirs, those

in possession bona fide, without there being any fraud or collusion,

are also entitled to represent the estate of the deceased.

24. The aforesaid judgment refers to representation of an estate of a

deceased person which would devolve on his legal representatives

and where the decree has to be executed vis-à-vis such an estate.

In such a case, the heirs of the deceased judgment debtor would

be under a legal obligation to discharge their duties to satisfy the

decree or an order from the estate of a deceased.

But in the case of sole proprietorship, which is a common form of

business in India, when a legal obligation arises under a contract

which has to be discharged personally by the sole proprietor, who

is since deceased, had entered into the agreement, such as, in the

case of a Development Agreement in the instant case, can such

obligations be imposed on his legal representatives or heirs who are

not parties to the Development Agreement and where the obligations

under such an agreement per se cannot be fulfilled inasmuch as

they neither have the skills nor the expertise to do so and those

obligations depend purely on the skills and expertise of the deceased

sole proprietor? In other words, where the decree or order is not

against the estate of a deceased sole proprietor but based on the

skills and expertise of the sole proprietor, we are of the view that

in the latter case, the obligations which had to be performed by the

sole proprietor would come to an end on his demise and the same

cannot be imposed on his legal heirs or representatives. We reiterate

that such a position is distinguished from a position where the estate

of the deceased sole proprietor would become liable to satisfy the

decree in monetary terms. This is because a proprietorship firm is

not a separate legal entity as compared to the proprietor and his

estate would become liable only to satisfy a decree or an order in

monetary terms on his demise.

In this context, the following terms of the Development Agreement

dated 30.07.1996 would clearly indicate that the obligations on the

opposite party were to be carried out personally by him:

[2024] 3 S.C.R. 143

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

“NOW THIS AGREEMENT WINESSETH AND IS

AGREED BY AND BETWEEN THE PARTIES HERETO

AS FOLLOWS:

1.1 The owners hereby grant to the developer sole and

exclusive development rights in respect of the property

bearing C.S. No. C. 1465 situated in ‘C’ Ward, Laxmipuri

Kolhapur -416002 in the form of license to enter upon the

said property in the capacity of the licensee of the owners

for the sole purpose of developing the said property and

selling the offices/premises / shops to the extent and

in the manner stipulated hereafter and upon the terms

and conditions agreed by the between the parties hereto

and set out here below in this agreement. Subject to

clause No. 2. the license hereby granted is irrevocable

till the entire property is developed and all the premises

constructed thereon are sold out. It is however, hereby

expressly understood that the right of entry granted under

this clause is for the sole purpose of developing the said

property selling all premises (except those to be allotted

to owners) including the shop/s basement/offices therein

and common restricted areas or facilities as the case may

be and such entry shall not be construed to mean that

the owners have placed the developer in legal or physical

possession of the said property.

x x x

16. The developer undertakes to comply with and carry

out all the legal and contractual obligations that may be

entered into for the construction of the buildings and for

the sale of the various premises in the said buildings.

The developer further undertakes to indemnify and keep

indemnified the owners from and against any action either

civil or criminal suit proceedings, damages, penalties or

any other similar actions which may be initiated, made or

ledged by any person or persons by reason of the failure

of the developer to comply with, carry out or perform any

such legal and contractual obligations.”

25. In this regard, it would be useful to illustrate that in a general sense,

an injunction is a judicial mandate operating in personam by which 

144 [2024] 3 S.C.R.

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upon certain established principles of equity, a party is required to

do or refrain from doing a particular thing. On the other hand, a

direction to pay money either by way of final or interim order is not

considered to be an injunction. An order of injunction is normally

issued against a named person and is addressed to the defendant

personally and on his demise the cause of action would come to

an end insofar as such a person who is since deceased even if it

relates to a proprietary right unless his legal representatives are also

causing a threat in which case the cause of action would continue

vis-à-vis the legal representatives also.

26. Therefore, if the estate of the deceased becomes liable then the legal

representatives who in law represent the estate of a deceased person

or any person who intermeddles with the estate of the deceased

and where a party sues or is sued in a representative character,

the person on whom the estate devolves on the death of the party

so suing or sued is liable to the extent the estate has devolved.

Hence, what is crucial is that the estate of a deceased person which

becomes liable and the legal representatives must discharge their

liability to a decree holder or a person who has been granted an

order to recover from the estate of the deceased which they would

represent and not beyond it.

27. But in the case of a personal obligation imposed on a person under

the contract and on the demise of such person, his estate does not

become liable and therefore, the legal representatives who represent

the estate of a deceased would obviously not be liable and cannot

be directed to discharge the contractual obligations of the deceased.

28. In Ajmera Housing Corporation vs. Amrit M. Patel (Dead) through

LRs, (1998) 6 SCC 500, this Court observed that the defendants in

the said case had no privity of contract with the plaintiff therein and

the contract had been entered into on the basis of the skills and

capacity of the party to perform under the contract and the rights

and duties were also personal to the party who had to discharge the

obligations under the contract. In the circumstances, it was observed

that the legal representatives of the builder under the contract had

neither the capacity nor the special skills to discharge the obligations

of the deceased.

29. This position is also clear on a reading of Section 50 of the CPC

which states as under:

[2024] 3 S.C.R. 145

Vinayak Purshottam Dube (Deceased), Through Lrs

v. Jayashree Padamkar Bhat & Others

“Section.50:- (1) Where a judgment-debtor dies before the

decree has been fully satisfied, the holder of the decree

may apply to the Court which passed it to execute the

same against the legal representative of the deceased.

(2) Where the decree is executed against such legal

representative, he shall be liable only to the extent of the

property of the deceased which has come to his hands

and has not been duly disposed of; and, for the purpose of

ascertaining such liability, the Court executing the decree

may, of its own motion or on the application of the decreeholder, compel such legal representative to produce such

accounts as it thinks fit.”

30. Thus, any decree which is relatable to the extent of the property of the

deceased which has come to the hands of the legal representatives

and has not been duly disposed of, the same would be liable for

execution by a decree holder so as to compel the legal representatives

to satisfy the decree. In this context, even a decree for preventive

injunction can also be executed against the legal representatives

of the deceased judgment-debtor if such a decree is in relation to

the property or runs with the property if there is a threat from such

legal representatives.

31. In view of the aforesaid discussion, we hold that the legal

representatives of the deceased opposite party-appellants herein are

not liable to discharge the obligation which had to be discharged by

the deceased opposite party in his personal capacity and hence that

portion of the impugned orders of the NCDRC, State Commission and

District Forum are set aside. Needless to observe that the direction

for payments shall be made by the legal representatives from the

estate of the deceased opposite party if not already satisfied.

32. The appeals are allowed in the aforesaid terms.

33. Parties to bear their respective costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals allowed.