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WHETHER A COMPANY CAN BECOME TRUSTEE OF THE TRUST - YES SAYS MADRAS HIGH COURT JUSTICE N.V. BALASUBRAMANIAN

THIS IS THE OBSERVATIONS OF MADRAS HIGH COURT BY JUSTICE N.V. Balasubramanian, in the case of B. Ramachandra Adityan vs Educational Trustee Co. (P.) Ltd. citation - 2003 113 Comp Cas 334 Mad,


Section 25 deals with charitable companies and licence from the Central Government is necessary so that company can be formed for promoting commerce, art, science, religion, charity or any other useful objects with no profit motive in mind.

Section 11 of the Companies Act in all cases, the company must carry on some trading or commercial activity and the object of the company must be to earn income. In the case of a company which is formed to act as trustee, such company must also carry on the activity for profit and unless there is an activity for profit, it would be of no benefit either to the company or to the shareholders who have invested money to the company.

Section 32 of the Trust Act which prohibits the receipt of any personal benefit to the trustees from the trust. Section 32 of the Indian Trusts Act, 1882 also provides that the trustee is entitled to get reimbursement out of the trust property all expenses properly incurred in relation to the execution of the trust property and for preservation of the trust property.

It is well settled that the company can be a trustee. The following observation made in Halsbury's Law of England, Volume VI, paragraph-20 (III Edn. Volume-4), the learned author, at page 394 clearly shows that the company can be a trustee. "As charitable corporations exist solely for the accomplishment of charitable purposes, they are necessarily trustees of their corporate properly, whether the beneficiaries are members of the corporation, as in the case of hospitals and colleges, or not. Accordingly, like other trustees, charitable or otherwise, they are subject to the jurisdiction of the Court. Though called directors and empowered to make and amend bye-laws for the corporation, apart from any provision in the constitution of the corporation, they have no right to remuneration and cannot amend the byelaws to permit remuneration to be paid to themselves."

In Palmer's Company Precedents, while dealing with the topic, 'Trust Company', learned author has observed that a company can be a trustee in the following words : "To undertake the office of and act as trustee, executor, administrator, manager, agent or attorney of or for any person or persons, company, corporation, government, state, colony, province, dominion sovereign, or authority, supreme, municipal, local or otherwise, and generally to undertake, perform and discharge any trusts, or trust agency business, and any office of confidence."

In Section 6 of the Banking Regulation Act, 1949, a banking company can be a trustee and it can act for the administration of estates as an executor, trustee or otherwise and Section 6 provides that the banking company can act as a trustee in several manners as indicated in Section 6(1)(j).

In the Indian Trusts Act by N. Suryanarayana Iyer, learned author has observed as under:--"Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellablc to carry out the intentions of the settlor of property which has been vested in them.... Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee."

Section 12 of the Companies Act deals with the mode of formation of incorporated companies and under Section 12, any seven or more persons or where the company to be formed will be a private company, any two or more persons, associated for any lawful purpose, by subscribing their names to a memorandum, may form an incorporated company with or without limited liability. The company so formed may be limited by shares or limited by guarantee. Section 13 deals with the requirements with respect to memorandum and the company has to set out its main objects to be pursued by the company on its incorporation and the objects incidental or ancillary to the attainment of the main objects. Section 11(2) of the Companies Act provides that no company or association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the company, etc. unless it is registered as a company under the Companies Act or is formed in pursuance of some other Indian Law. Section 11(1) deals with the case of a banking company, while Section 11(2) deals with cases other than banking companies. From these two provisions, it cannot be said that a company must always be formed to carry on a business venture with a view to make profit. If such an interpretation is given, then the trustee companies will have no place of existence at all in the Companies Act.


The concept of trust is a peculiar concept. Therefore, the word, 'business' found in Section 11(2) of the Companies Act is to be construed to mean any useful activity and it is not necessary to confine it to commercial activity for profit. The charitable companies are not formed or not intended for commercial activities.



WILL IS INTERFERENCE OF NORMAL SUCCESSION – NATURAL HEIRS ARE DEPRIVED IN CASE OF WILL IS USUAL 1995 SC

FULL JUDGMENT
RABINDRA NATH MUKHERJEE AND ANOTHER vs PANCHANAN BANERJEE (DEAD) BY LRS. AND OTHERS, . AIR 1995 SC 1684, 1995 SCC (4) 459 In this case their Lordships have held as under: "The circumstances of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of will is to interefere with the normal line of succession. So natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of the testatrix whereas the objectors descendants of a full blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will. The identification by the lawyer could have been regarded as a suspicious circumstances if a wrong person would have been identified as the testatrix. That, however, is not the case of the objectors. So, there is no bane in this circumstance. The third circumstance can not also be said to be suspicious. Witnesses in such documents verify whether the same had been executed voluntarily by the person concerned knowing its contents. In case where a will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub-Registrar had explained the contents to the old lady. Objection as regards `ubiquitous', cannot be there if there be other circumstances on record to show the voluntary character of the document. Such circumstances were present in this case. Taking total view of the circumstances, which has to be the approach, it must be held that the Courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders."

WHEN THE ORIGINAL WILL IS LOST – LOSS OF ORIGINAL TO BE PROVED 2007 SC

FULL JUDGMENT
Benga Behera & Anr vs Braja Kishore Nanda & Ors (AIR 2007 SC 1975), A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. Loss of the original, therefore, was required to be proved. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated. Furthermore, secondary evidence, could be led by production of a certified copy given in terms of the provisions of the Indian Registration Act. In support of the proof of the Will, purported Xerox copy and a certified copy thereof have been produced. In the Xerox copy, an endorsement has been made by an advocate that the executant was his client and it was written by his clerk in his office on his dictation, whereas in the certified copy there is no such endorsement of the advocate. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908. S.52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of s.3 of the Transfer of Property Act and s.63 of the Succession Act. "Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness.
A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as :
"(a) Signature of the person admitting the execution of the document;
(b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration.
Therefore this is the only duty cast on the Registering authority to endorse on the will, i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else.."
If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term `attestation' means: "to `attest' is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument (ii) each of them has signed the instrument in presence of the executant.
"Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. ….. The said witness did not know the testatrix personally. Even her parentage was not asked for and inquired into. He was examined eight years after the registration. It is difficult for any ordinary person after a period of eight years, inter alia, on the basis of a certified copy to depose in regard to evidence of such nature, particularly, in a case where a Will has been executed on the day on which she had executed a deed of sale in favour of a complete stranger. His evidence, therefore, does not inspire confidence. In any event he cannot be said to have proved due execution or attestation of the Will.

It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant.

IF ATTESTING WITNESS DENIES OR DOES NOT RECOLLECT EXECUTION IT CAN BE PROVED BY OTHER EVIDENCE 2003 SC

FULL JUDGMENT
Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, [(2003) 2 SCC 91] laid down the law on interpretation and application of Section 71 of the Act in the following terms: "11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause ( c ) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will"
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence.
However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling Section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.
Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act. Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. When the document is not proved as mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that a will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the will by the second witness, the
evidence of the witness called falls short to the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses were available who could prove the execution if they were called.

BURDEN OF PROOF IN CASE OF WILL AND ITS CIRCUMSTANCES 1977 SC

FULL JUDGMENT
SETH BENI CHAND vs SMT. KAMLA KUNWAR AND OTHERS AIR 1977 SC 63, 1977 SCR (1) 578, The mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. ….. The onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Where the circumstances surrounding the execution of the will are shrouded in suspi- cion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of auspicious circumstances which can satisfy a prudent mind.

REGISTRAR OF DEEDS IS NOT AN ATTESTING WITNESS 2004 SC

FULL JUDGMENT
Bhagat Ram And Anr. vs Suresh And Ors. AIR 2004 SC 436, The Registrar of Deeds who had registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to the registration of a document. Registration of any will, and the endorsements made by the Registrar of Deeds in discharge of his statutory duties do not elevate him to the status of a 'statutory attesting witness'. However, a registrar can be treated as having attested to a will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the will or codicil or has received from the testator a personal acknowledgement of his signature or mark and he has also signed in the presence of the testator. In other words, to be an attesting witness, the registrar should have attested the signature of the testator in the manner contemplated by Clause (c) of Section 63 of the Succession Act. No particular form of attestation is provided. It will all depend on the facts and circumstances of a case by reference to which it will have to be answered if the registrar of deeds fulfils the character of an attesting witness also by looking at the manner in which the events have actually taken place at the time of registration and the part played therein by the Registrar. .. A Registrar of Deeds before he be termed an attesting witness, shall have to be called in the witness box. The court must feel satisfied by his testimony that what he did satisfies the requirement of being an attesting witness. ….. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in one manner as provided in Section 68 of the Evidence Act. Under Section 68 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:
(1) the date, hour and place of presentation of the document for registration;
(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign of agent of any person, the signature and addition of such representative, assign or agent;
(3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act, and
(4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar alongwith his signature and date on document under Section 59 and then certified under Section 60. A presumption by reference to Section 114 (Illustration (e)) of the Evidence Act shall arise to the effect that the events containing in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, require to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation within the meaning of Section 63(c) of the Succession Act or Section 68 of the Evidence Act being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (See: Kunwar Surendra Bhadur Singh and Ors. v. Thakur Behari Singh and Ors., . On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL ATTESTATION AND ITS PROOF. 2001 SC

FULL JUDGMENT
N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, ILR 2002 KAR 4273. The relevant paragraphs-28 and 32 read as under: "Para 28 : It is on this count that the learned Advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice. Technicalities. It has been contended there may be many - but would that sub-serve the ends of justice; one needs to ponder over the same. Justice oriented approach cannot be decried in the present day society as opposed to strict rigours of law; Law Courts existence is dependant upon the present day social approach and thus cannot and ought not to be administered on sheer technicalities. The discussion of the law as above, definitely make us ponder over the legal aspects once more since the tenor of the observations contained therein obviously looked into being in favour of the technicality rather a justice oriented approach and in that perspective let us now have review of the whole situation on the factual context. Masaney Gowder executed a Will said to have been written by one Arunachalam and attested by Subbaiah and Govindaraju. The two attesting witnesses were not called to give evidence against them - why it has not been done? The explanation has been that both the attesting witnesses were inimical towards appellants and as such there was a refusal on their part to come to Court and prove the document - how far however the same is an acceptable evidence; We Will have to examine; but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with herein before, was made after a lapse of about 10 years after the appeal was filed and the learned judges though it fit to reject such a prayer and we also do lend out concurrence thereof without taking any exception - but then what is the effect? we have thus existing on record a document said to be a Will of one Masaney gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the will or the scribe came forward and deposed as to the state of affairs on the date of signing of the will, it would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the will in the absence of the attesting witnesses. Arunachalam stated in his examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane Gowder has been introduced to me by the Advocate G.M. Nathan who was formerly have. During the execution of the WILL, Advocate G.M. Nathan was residing at Thomas Street.At that time Masane Gowder was residing at the same place after one house of Advocate's home. Before the preparation of the `WILL' I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A.1 the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane Gowder had affixed his thumb impression in each page. The affixing of thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by attestor Subbaiah,Govindaraju and myself.The signing of signature for witness by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 : While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est."

RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4. In this case it was held that once the execution of the Will is denied by the alleged executant the document cannot be admitted in evidence, unless one attesting witness atleast has been called for proving the execution of the document, if alive, and subject to the process of the Court. In that case there was no evidence to show that the attesting witnesses were not alive and none of them were examined. Therefore, the requirement of Section 68 of the Indian Evidence Act has not been complied with and as such the Will could not be used in evidence.

ESSENTIAL CONDITIONS OF VALID ATTESTATION OF A DOCUMENT

FULL JUDGMENT
M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors AIR 1969 SC 1147, The essential conditions of a valid attestation under s. 3 of the Transfer of Property Act are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to hear witness to this fact each of them has signed 'the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or-has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. …. Prima facie the registering officer puts his signature on the document in discharge of his statutory duty under s. 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. ….. In the present case the evidence did not show that the registering officer and the identifying witnesses signed the document with the intention of attesting it. Nor was it shown that the registering officer signed it in the presence of the executant. The document could not therefore be said to have been attested by these witnesses and must be held to have been signed by one attesting witness only. ….. Section 100 of the Transfer of Property Act does not attract the provisions of s. 59. The first paragraph of s. 100 consists of two parts. The first part concerns the creation of a charge over immovable property which may be by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. When such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of S. 59 relating to the creation of a mortgage. The second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law. Obviously the provision of s. 59 are not attracted to a charge by operation of law. Likewise the legislature could not have intended that the second part would attract the provisions of s. 59 to a charge created by act of parties. …… If a charge can be made by a registered instrument only in accordance with s. 59, the subsequent transferee will always have notice of the charge in view of s. 3 of the Act. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases when the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that A charge can be made without any writing. …. If a non-testamentary instrument creates a charge of the value of Rs. 100/- or upwards the document must be registered under s. 17(1) (b) of the Indian Registration Act, 1908. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses. …. The object of the second part of the first paragraph of s. 100 is to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage. It was not intended to prescribe any particular mode for the creation of a charge. ….. It followed that the security bond in the present case was not required to be attested by witnesses. It was duly registered and was valid and operative.


By quoting above case law Madras High Court Justice S. Swamikkannu, in P. Kamakshi Ammal, W/O. Late P. ... vs P. Venkatesan And Ors. (1986) 1 MLJ 438 “Thus, we see that it is a well established principle of law that in every case where the genuineness of a document is disputed, the Court must be satisfied that the names of the attestors of the said disputed document were written animo attestandi. Evidence is admissible to show whether the witness had the intention to attest. The attesting witnesses must subscribe with the intention that subscription made should be complete attestation of the document, and evidence is admissible to show whether such was the intention or not.”

Karnataka High Court in Robert D' Mello vs Henry D'Mello And Anr. AIR 2004 Kant 78, ILR 2003 KAR 3153, 2003 (5) KarLJ 232 Quotes supreme court case law of M. L. Abdul Jabhar Sahib has specifically held that In view of the principles laid down by the Apex Court in ILR 2002 KAR 4273, the scribe and the Sub-Registrar who have come to depose before the Court regarding writing of the document and the due registration of the document cannot be held to have proved due attestation required under law.

THOSE WHO INDULGE IN IMMORAL ACTS LIKE PERJURY, PREVARICATION AND MOTIVATED FALSEHOODS HAVE TO BE APPROPRIATELY DEALT WITH 1995 SC

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Justice B.L. HANSARIA, in case of Chandra Shashi vs Anil Kumar Verma reported in 1995 SCC (1) 421, To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that (truth alone triumphs) is an achievable aim there; or (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts.

THE LAW SHOULD NOT BE SEEN TO SIT BY LIMPLY, WHILE THOSE WHO DEFY IT GO FREE, AND THOSE WHO SEEK ITS PROTECTION LOSE HOPE 1980 SC

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Advocate General, State Of Bihar vs Madhya Pradesh Khair Industries AIR 1980 SC 946 While we are conscious that every abuse of the process of the Court may not necessarily amount to Contempt of Court, abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of Court. It may be that certain minor abuses of the process of the Court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of order 6, Rule 16 or in some other manner. But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The publice have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage". (1) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope". (2) In Halsbury's Laws of England (4th Edn-Vol. 9, paragraph 38), there is a brief discussion of when abuse of the process of the Court may be a punishable contempt. It is said: "38. Abuse of process in general. The Court has power to punish as contempt any misuse of the court's process. Thus the forging or altering off court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt. Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt".

PROPERTY GRABBERS ETC FROM ALL WALKS OF LIFE FIND THE COURT PROCESS A CONVENIENT LEVER TO RETAIN ILLEGAL GAINS 1994 SC

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Justice KULDIP SINGH, J in S.P Chengalvaraya Naidu vs Jagannath reported in AIR 1994 SC 853, The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

THE JUSTICE SYSTEM CANNOT BE ALLOWED TO BECOME SOFT, SUPINE AND SPINELESS. 1996 SC

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Delhi Development Authority vs Skipper Construction & Anr AIR 1996 SC 715, The interest of justice demand that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheels of justice may appear to grind slowly but it is the duty of all of us to ensure that they do grind steadily and grind well and truely. The justice system cannot be allowed to become soft, supine and spineless.

WHEN STATUTE IS SILENT PRINCIPLES OF JUSTICE EQUITY AND GOOD CONSCIENCE PREVAIL 1992 SC

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Hon'ble Supreme Court in the case of M.V. Elisabeth & ors. vs. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco, De Gama, Goa reported in (1993) Suppl (2) SCC 433, AIR 1993 SC 1014, 1992 SCR (1) 1003, is very much significant in the present case as it was also held therein that where statute is silent and judicial intervention is required, Court's strive to redress grievances according to what is perceived principles of justice, equity and good conscience. The relevant part of the said judgment is set out hereunder:-"Paragraph 86; the judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statue is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience."

Order of a Competent Court Could Not Be Set Aside as Void in Collateral Proceeding 2011 SC

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Justice P. SATHASIVAM and Justice Dr. B.S. CHAUHAN in the case of Inderjit Singh Grewal VS State of Punjab & Anr. Decided on 23-08-2011 has laid down following Ratio “Where a person gets an order / office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes on the law. A void order passed by a Court or authority could be ignored or set aside only by initiating appropriate proceeding before an appropriate Forum. A person who obtained an order by playing fraud on the Court or authority is not entitled to challenge that order by alleging such fraud. Even in the proceeding for divorce by mutual consent, there is an obligation on the part of the court to make every endeavour to bring about reconciliation between the parties. In the proceeding for divorce by mutual consent, for granting divorce, the Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.”

Unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim

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. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear `admission' which can be acted upon.

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS