Evidentiary Value of Family Arrangement not Stamped not Registered

A.C. Lakshmipathy And Another vs A.M. Chakrapani Reddiar & Ors AIR 2001 Mad 135, (2001) 1 MLJ 1 

http://indiankanoon.org/doc/836133/

After discussing the law prevailing on family arrangement, Madras High Court neatly summed up the position as under at Para 42 :

A family arrangement can be made orally.

(II) If made orally, there being no document, no question of registration arises.

(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.

(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.

(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.

(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act.

Partition - Meaning and When Registration Necessary

A partition does not involve transfer of property. A partition with unequal shares does not amount to a gift. Partition can be effected orally. When a partition is reduced to a document stating the division has taken place as narrated in the document, it is not compulsorily registrable. But if the document proposes to divide the properties as narrated in the document, it is compulsorily registrable.

In Sri Jagatram Ahuja vs The Commissioner Of Gift Tax ( link http://indiankanoon.org/doc/46064/): Supreme Court approved the definition of partition laid in Radhakrishnayya v. Sarasamma AIR 1959 Mad. 213 where it was laid as under :

"Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore, no conveyance is involved in the process as a conferment of a new title is not necessary."

The Indian Stamp Act, Section 2(15) defines, (15) "Instrument of Partition ".--"Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition.

In Radhakrishnayya v. Sarasamma @ Para 2 HC held "It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in Section 17 of the Registration Act such document must be registered, notwithstanding with the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same if inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purposes" is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it were registered."

In CIT Madras vs Getti Chettiar 1971 AIR 2410, 1972 SCR (1) 736 (http://indiankanoon.org/doc/466149/) Supreme Court held "we do not think that  a partition in a Hindu Undivided Family can be considered either as "disposition" or "conveyance" or "assignment" or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in s. 2 (xxiv). The court explained salient terms in Gift Tax Act, 1958, S. 2 (xxiv) - "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes .... 

----

"the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of one's property to another for no consideration and "payment" implies gift of money by someone to another."

Supreme Court held in Sri Jagatram Ahuja vs The Commissioner Of Gift Tax (link http://indiankanoon.org/doc/46064/) "the common holding of property by the coparcener is converted into separate title of each coparcener as tenant-in-common. Nor does subsequent partition by metes and bounds amount to a transfer"

In A.C. Lakshmipathy And Another vs A.M. Chakrapani Reddiar & Ors AIR 2001 Mad 135, (2001) 1 MLJ 1, (http://indiankanoon.org/doc/836133/), Madras HC held @ Para 25  "A memorandum or a Chit or a list written and signed by the parties referring to an earlier oral partition which parties intended to be only a record of earlier partition and not a proof of what they have partitioned and how they have partitioned and consequently to claim their rights/title, under the agreement need not be registered."

Legal Right

Ayaaubkhan  Noorkhan  Pathan  v.   The   State   of Maharashtra & Ors 2012 (11) SCALE 39
http://indiankanoon.org/doc/162455222/

“A “legal right”, means an  entitlement  arising  out  of  legal rules.  Thus, it may be defined as an advantage,  or  a  benefit conferred upon a person by the rule  of  law.   The  expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a  person  aggrieved  must therefore, necessarily be one, whose right or interest has  been adversely affected or jeopardized."

Ravi Yashwant Bhoir vs The Collector, District Raigad & Ors
http://indiankanoon.org/doc/84566570/
44. .....A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.

Who is an Aggrieved Person in Law

Corpus Juris Secundum : "Broadly speaking, a party or person is aggrieved by a decision when, and only when it operates directly and injuriously upon his personal, pecuniary or property rights".

The oft-quoted dictum of James, L. J., in Ex parte, Sidebotham, (1880) 14 Ch D 458 states :

"But the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him some-thing, or wrongfully affected his title to something".

S. Govinda Menon vs K. Madhavan Nair And Ors. AIR 1964 Ker 235 http://indiankanoon.org/doc/6910/

"In legal    acceptation    a party    or person  is aggrieved by a judgment,  decree,  or order,  so  as to be entitled to appeal..... whenever it operates prejudicially and directly upon his property or pecuniary rights or interests, or upon his personal rights and only when it has such effect". (Vol 4, P- 356 -- 1st Edn.) 

  

Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra & Ors 

CA 7728/2012

7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons.

Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361).

15. ....a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others.

Will, Gift and Settlement - distinguishing the attributes

Mathai Samuel & Ors vs Eapen Eapen (dead) by Lrs. & Ors CA No 8197 of 2012

11. ...basic  and  fundamental  difference  between  a   testamentary disposition and a settlement.  Will is an  instrument  whereunder  a  person makes a disposition of his properties to take effect  after  his  death  and which is in its own nature ambulatory and  revocable  during  his  lifetime.
It has three essentials:

     1) It must be a legal declaration of the testator’s intention;

     2) That declaration must be with respect to his property; and

     3) The desire of the testator that  the  said  declaration  should  be
        effectuated after his death.

12.   The essential quality of a testamentary disposition is  ambulatoriness of revocability  during  the executants’  lifetime.   Such  a  document  is dependent upon executants’ death for its vigour and effect.

13.   Section 2(h) of the Indian Succession Act says “Will” means the  legal declaration of the intention of a testator  with  respect  to  his  property which he desires to be carried  into  effect  after  his  death”.

16. ....A document which operates to dispose of properly in  praesenti  in  respect of few items of the properties is a settlement and in future in  respect  of few other items after the deeds of the executants,  it  is  a  testamentary disposition.  That one part of the document has effect during the life  time of the executant i.e. the gift and the other  part  disposing  the  property after the death of the executant is a Will.

17.   In a composite document, which has the characteristics of  a  Will  as well as a gift, it  may  be  necessary  to  have  that  document  registered otherwise that part of the document which has the effect of  a  gift  cannot be given effect to.  ...The  document which may serve as evidence of the gift, falls within the sweep  of  Section 17 of  the  Registration  Act.   Where  an  instrument  evidences  creation, declaration, assignment, limitation or extinction of any present  or  future right, title or interest in  immovable  property  or  where  any  instrument acknowledges  the  receipt  of  payment  of  consideration  on  account   of creation, declaration, assignment, limitation or extinction of  such  right, title or interest, in those cases alone the instrument or receipt  would  be compulsorily registrable under Section 17(1) (b) or (c) of the  Registration Act.  A ‘Will’  need  not  necessarily  be  registered.   But  the  fact  of registration of  a  ‘Will’  will  not  render  the  document  a  settlement.

Intention – Guiding Factor:

18.   The primary rule of construction of a document  is  the  intention  of the executants, which must be found in the words used in the document.   The question is not what may be supposed to have been  intended,  but  what  has been  said.   We  need  to  carry  on  the  exercise  of   construction   or
interpretation of the document only if the document  is  ambiguous,  or  its meaning is uncertain.  If the language used in the document  is  unambiguous and the  meaning  is  clear,  evidently,  that  is  what  is  meant  by  the executants  of  the  document.   Contemporary   events   and   circumstances
surrounding  the  execution  of  the  document  are  not  relevant  in  such situations.

30. ....we have .....no  hesitation in holding that so far as that item is concerned, the document  in  question cannot be construed as a settlement or a gift because there is no  provision in  the  document  transferring  any  interest  in  immovable  property   in praesenti in favour of settlees

Affidavit - whether legal evidence (S. 3 of Evidence Act, 1872)

Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra & Ors

http://indiankanoon.org/doc/162455222/

31. ...Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:....

It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908. Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. 

36. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view, stands fully affirmed particularly, in view of the amended provisions of Order XVIII, Rules 4 & 5 CPC. In certain other circumstances, in order to avoid technicalities of procedure, the legislature, or a court/tribunal, can even lay down a procedure to meet the requirement of compliance with the principles of natural justice, and thus, the case will be examined in the light of those statutory rules etc. as framed by the aforementioned authorities.

Specific Relief Act, 1963 - S. 26 - rectification of instruments

Section 26 of Specific Relief Act, 1963:

            Section 26 of the Special Relief Act 1963 (hereinafter  referred to as ‘Act’) provides for rectification of instruments, where  through fraud or a mutual mistake of the parties,  an  instrument  in  writing does not express the real intention, then the parties  may  apply  for rectification. However, clause 4 thereof, provides that such a  relief cannot be granted by the court, unless it is specifically claimed. vs

Joseph John Peter Sandy vs Veronica Thomas Rajkumar & Anr. CA No 2178-2179 of 2004 d/d 12/03/2013 http://indiankanoon.org/doc/156545202/

7. Section  26  of the Act has a limited application, and is applicable only where it  is pleaded and proved  that  through  fraud  or  mutual  mistake  of  the parties, the real  intention  of  the  parties  is  not  expressed  in relation to an instrument.  Such rectification is permissible only by the parties to the instrument and by none else.

Malicious Prosecution

Nagendra Kumar vs Etwari Sahu And Ors AIR 1958 Pat 329
http://indiankanoon.org/doc/285864/

8a. The object of law is the creation and protection of legal rights. Any interference with a man's right, whether with respect to his personal liberty or property is prima facie wrongful. A person as such is prima facie entitled to set the law in motion against any person, who has wronged him, either in person or property, if he does so with an honest intention of protecting his own and the public interest.
It is no doubt true that courts established for administering justice, civil or criminal should be open to every aggrieved person in. vindicating his right, but at the same time everv person has a corresponding right that he should not be harassed by legal proceedings improperly instituted against him. Law is anxious that persons should not be harassed In courts of law.
From motives of public policy, the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for prosecution; but if the person abuses his privilege for the indulgence of his personal spite, he loses the protection and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation by a causeless prosecution.
So, whenever the law has been set in motion, not for the bona fide purpose of vindicating justice, but there is a perversion of the machinery of justice for improper purposes, an action will be maintainable.
9. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results.
The mere presentation of a false complaint which first seeks to set the criminal law In motion will not per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been : othing but an unsuccessful attempt to set the criminal law in motion, but no damage to the plaintiff results.

Laying the information before the Magistrate, therefore, would not be the commencement of the prosecution, unless the Magistrate issues a summons against the plaintiff, and, when once, a summons is issued, the commencement of the prosecution relates back to the laying of the information. The malicious criminal prosecution, therefore, means instituting unsuccessful criminal proceedings against any one resulting in damage to him, if the prosecution is inspired by malice and is destitute of any reasonable and probable cause. 

Conditions of Liability.

12. On being analysed, malicious prosecution resolves itself into the following component parts, and, therefore, the plaintiff must prove to succeed in an action for damages for such prosecution.

(i) The prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the courts are competent to enquire; and,
(ii) that the proceedings complained of terminated in his favour, if from their nature they: were capable of so terminating; and,
(iii) that the defendant instituted or carried on such proceedings maliciously; and,
(iv) that there was an absence of reasonable and probable cause for such proceedings; and

(v) that the plaintiff has suffered damage. 

12b. The onus of proving every one of the above conditions of liability is on the plaintiff. 

Evidentiary Value of Police Investigation Dairy

S. 172 of CrPC not meant to be used for the purpose to overcome the contradictions pointed out by the defence

S. 172 of CrPC : (1) "Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place, or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police diaries of the case under inquiry or trial in such Court, may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purposes of contradicting such police officer, the provisions of Sec. 161 or Sec. 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply." 

In Md.Ankoos & Ors vs Pub.Pros.High Court Of A.P, Cr. Appeal 120/2008 decided on 6.Nov.2009 held :

24. A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. Court's power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. This Court had an occasion to consider Section 172 of the Code vis-`-vis Section145 of the Evidence Act and Section 162 of the Code in the case of Mahabir Singh v. State of Haryana2 and it was stated as follows:

"14. A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a case diary for contradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction."