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					Vol-II                           Sep – Oct , 2007
Part – 9 & 10




           IMPORTANT CASE LAWS




                  Compiled by




       Tamil Nadu State Judicial Academy
                 Chennai – 28
                    SUPREME COURT CITATIONS

      (2007) 5 MLJ 1273 (SC)
       Ganmani Anasuya and Others Vs. Parvatini Amarendra Chowdhary and Others

           Indian Evidence Act (1 of 1872), Section 58 – Suit for partition – Admission by a
party – May be used against such party – Joint business venture – Suit for partition – Share of
immoveable property and for accounts of joint venture - Statement of account by one party –
Preparation from books of account – Admission to be in his signature – Plea of settlement of
accounts – Half share in another property of business – Same fraction in the business also –
Question of settlement of accounts, share in partition and limitation for relief of accounts – Not
considered in the judgment under appeal – Remanded for decision on all points.


      (2007) 5 MLJ 1269 (SC)
       Kaushlya Devi Vs. Shri Karan Arora and Others

           Motor Vehicles Act ( 59 of 1988), Sections 166, 140,141 – Motor Vehicle – Accident
– Death of child aged about 14 years – Parents claimants – Award of compensation of one lakh of
rupees – Appeal by claimant – Uncertainties in determining compensation in case of children –
Age of parents – May be relevant – One of the parents also not alive – Award sustained.


      (2007) 5 MLJ 1263 (SC)
       Apoline D'Souza Vs. John D'Souza
            Indian Succession Act (39 of 1925), Section 63 – Indian Evidence Act (1 of 1872),
Section 68 – Execution and due attestation of a will – Burden of proof on propounder – To
explain suspicious circumstances – Very old and bedridden lady – Will – Bequeathing property to
a stranger – Existence of other suspicious circumstances – Will held not proved.


      2007 (4) TLNJ 259 (Civil)
       Smt. Seema Vs. Ashwani Kumar
           Constitution of India 1950 – Registration of Marriages – The Supreme Court held
that the registration of marriages under all religions in India should be made compulsory.
Directions were given to the State Government to frame rules relating to registration of marriages
as mandatory.
                                                88


      2007 (4) TLNJ 256 (Civil)
       Smt. Thokchom Ongbi Sangeeta @ Sangi Devi & Another -

             Motor Vehicles Act 1988 – Section 147 – Compensation for death of passenger
carried by goods vehicle. The Apex Court of this Country has held that the insurance company is
not liable under the Motor Vehicle Act to pay compensation for the death or disability caused to
any person travelling in a goods vehicle involved in an accident. Further held that under the
present act that compulsory insurance coverage in respect of drivers and conductors of public
service vehicle and employees carried in goods vehicle would be limited to liability under the
Workmen's Compensation Act, 1923 and not under the Motor Vehicles Act.


      (2007) 5 MLJ 1029 (SC)
       V. Shankaranarayana Rao (D) by Lrs and Others Vs. Leelavathy (D) by Lrs and
       Others

             Benami Transactions – Whether transaction in question, benami or not – Question
as to – Impugned order of High Court, holding transaction in question as benami in nature – Held,
effect and purport of requisite ingredients for arriving at a decision as to whether transaction in
question is benami or not, had not been considered by High Court – Said question, not thoroughly
dealt with by High Court and totality of circumstances, not considered – As such, matter remitted
back to High Court for consideration of matter afresh.


      AIR 2007 Supreme Court 2257
       State of Rajasthan Vs. Om Prakash

           (A)*****
           (B)Evidence Act ( 1 of 1872), S.3 – Witness – Appreciation of evidence –
Improvements made by witness as to irrelevant details – Cannot be labelled as omissions or
contradictions.
           (C)*****


      AIR 2007 Supreme Court 2400
       State of Madhya Pradesh Vs. Chamru @ Bhagwandas etc.

           (A)*****
           (B) Evidence Act (1 of 1872), S.3 – Child witness – Testimony of – Appreciation –
Witness – Witness during investigation not disclosing identity of accused though known –
Statements in Court disclosing that she knew name of accused – Statement that she had seen
                                                89




voltage of bulb lighted 200 yards away – Indicates that she was tutored – Most of her statements
were exaggerations and embellishment – Part of her evidence was also contrary to evidence of
other eye witnesses – Witness not credible witness – Judgment of acquittal does not suffer from
any infirmity.


      AIR 2007 Supreme Court 2369
       Smt. Ass Kaur ( Deceased) by L.Rs. V. Kartar Singh (Dead) by L.Rs. & Others
             (A)Evidence Act (1 of 1872), S.57 – Judicial notice – Custom – Court can take
judicial notice – When custom has been repeatedly recognised by Courts – Proof thereof, not
necessary.
             (B)*****
             (C)*****


      AIR 2007 Supreme Court 2219
       Apoline D'Souza Vs. John D'Souza
             (A) Succession Act (39 of 1925), S. 63 – Evidence Act (1 of 1872) , S.68 – Will –
Execution of – Suspicious circumstances – Testatrix 96 years old lady – Scribe of will not known
– Attesting witness not know to testatrix and stated that Will was not drafted before her – She had
only proved her signature – As per said witness document was handwritten one – Whereas
Original Will is typed – No evidence to show that contents of Will were read over and explained
to testatrix - Several cuttings and over-writings in Will – Establishing suspicious circumstances –
Due execution of Will, cannot be said to be proved.
             (B) *****


      AIR 2007 Supreme Court 2274
       Manik Das & Ors. Vs. State of Assam


         (A)******
         (B)******
     (C) Penal Code (45 of 1860), S.34 – Common intention – Application of principle
enunciated in S.34 – Conviction of accused under Ss.304 r/w.34 – In law it means that accused is
 liable for act which caused death of deceased in same manner as if it was done by him alone.




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        AIR 2007 Supreme Court 2430
         State of Punjab Vs. Sanjiv Kumar & Others

           (A)******
           (B)******
           (C) Penal Code (45 of 1860), S.149 – 'Common object' of an assembly –
Ascertainment of – Relevant Factors.
           'Common Object' is different from a 'common intention' as it does not require a prior
concert and a common meeting of minds before the attack. The 'common object' of an assembly is
to be ascertained from the acts and language of the members composing it, and from a consideration
of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the
members of the assembly. What the common object of the unlawful assembly is at a particular stage
of the incident is essentially a question of fact to be determined. Keeping in view the nature of the
assembly, the arms carried by the members, and the behaviour of the members at or near the scene
of the incident. It is not necessary under law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated into action or be successful. The time of
forming an unlawful intent is not material. An assembly which at its commencement or even for
some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop
during the course of incident at the spot eoinstanti. An object is entertained in the human mind, and
it being merely a mental attitude, no direct evidence can be available and, like intention, has
generally to be gathered from the act which the person commits and the result therefrom.
                                                                                          (Paras 9, 10)
           (D) *****


        AIR 2007 Supreme Court 2257
         State of Rajasthan V. Om Prakash
           (A) Penal Code (45 of 1860), S.300 – Murder – Evidence of solitary witness – can be
basis for conviction – Even if he is related to deceased – Corroboration is not a must.
               1999 Cri LJ 1987 (Raj.), Reversed
                                                                                           (Paras 5,8)
            (B)*****
            (C)*****




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        AIR 2007 Supreme Court 2437
         Manubhai Atabhai Vs. State of Gujarat
            Penal Code (45 of 1860), Ss.304 Part I, 302 – Culpable homicide or murder – Proof –
Nature of intention has to be gathered from kind of weapon used, part of body hit, amount of force
employed etc. - Murderous assault by appellant – Injury was inflicted on vital part of body of
deceased – Knife used by appellant was having blade of 6 inches and had gone as deep as 6 cm in
body of deceased – Same was indicative of use of great force – And had resulted in death
instantaneously – It was not a case of exercise of right of private defence – Merely because single
blow was given, that would not attract S. 304 Part I – Alteration of conviction under S.304 Part I to
S.302 – Proper.
                                                                                           (Paras 8,9)


        AIR 2007 Supreme Court 2154
         Raja Lal Singh Vs. State of Jharkhand


            (A) Penal Code (45 of 1860), S.304-B – Dowry death – Husband of deceased as also
his brother and his wife charged – Accused husband and his brother living on seperate floors –
Incident taking place in room of her husband – Brother of husband and his wife entitled to benefit
of doubt.
                                                                                            (Para 13)
            (B) Penal Code (45 of 1860), S.304-B – Dowry death – Death about 7 months after
marriage – Harassment for dowry was 10-15 days before death – Ingredients of S.304-B are
satisfied – Death even if was by way of suicide – S. 304 B would be attracted.
                                                                                         (Para 17,19)
            (C)*****


        AIR 2007 Supreme Court 2434
         Niranjan Singh Vs. State of Madhya Pradesh
            Penal Code ( 45 of 1860), S.397 – Robbery with deadly weapon – Actual causing of
grevious hurt – Not essential for attracting S.397 – Even attempt to cause grievous hurt is sufficient
– Accused causing knife injury on chest just below niple – considering place of injury conviction
U/s.397 proper.
                                                                                           (Para 9)




                                                92



        AIR 2007 Supreme Court 2327
         National Agricultural Co-op. Marketing Federation India Ltd. Vs. Gains Trading
           Ltd.
           (A)*****
           (B) Arbitration and Concilation Act (26 of 1996), S.11 – Appointment of Arbitrator –
Arbitration Clause stating that Arbitration and Concilation Act, 1996 would apply – Mere fact that
parties agreed that venue of arbitration shall be Hong Kong – Would not follow that Laws in force
in Hong Kong will apply.


        AIR 2007 Supreme Court 2594
         Asharam & Anr. Vs. State of Madhya Pradesh
           (A)*****
           (B) Criminal P.C. (2 of 1974), S. 156 – F.I.R. - Not substantive piece of evidence –
cannot contradict evidence of eye-witness.
           (C) *****
                                                                                         (Para 18)




        AIR 2007 Supreme Court 2482
         Nadimuthu & Ors. Vs. State
           Penal Code (45 of 1860), S.300 – Murder – Eye-witness – Making contradictory
statements – Reliability – Deceased husband killed before his wife – Accused father and brothers of
deceased – Wife who was under duress and threat, stating before Village Administration Officer
that her husband died because of fall from accident – Real version of incident given only after her
father's arrival – Medical evidence and other witnesses supporting it – Conviction of accused
persons proper.
           (Evidence Act (1 of 1872), S.3)
                                                                                         (paras7,8)
        AIR 2007 Supreme Court 2531
         Swamy Shraddananda alias Murali Manohar Mishra Vs. State of Karnataka
           (A)******
           (B)Evidence Act (1 of 1872), S.27 – Disclosure Statement – Fact discovered –
Included place from which object is produced and knowledge of accused as to it – Murder case-


                                                 93
Deceased buried in a big court-yard – Accused pinpointing exact place of burial – Also marking
that place – Skeleton of deceased exhumed from marked place – This part of confessional statement
before police – Is admissible.
                                                                                   (Paras 39,44,46)
           (C) *****
           (D) *****
           (E) to (M) *****


        AIR 2007 Supreme Court 2666
         Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka
           Evidence Act (1 of 1872), S.32 – Penal Code (45 of 1860), S.300 – Dying declaration
– Can be made basis for conviction – But for that consistency in declaration is relevant factor –
Bride burning case – Deceased taking contradictory and inconsistent stand in diferent dying
declarations – Four declarations made – In one incident was attributed to accident – Other two
blamed parents-in-law – In fourth act was attributed to husband as well as parents-in-law – Parents-
in-law have already been acquitted – In circumstances husband alone cannot be convicted.
                                                                                         (Paras 6,7)
        AIR 2007 Supreme Court 2674
         Arvind Kumar & Anr. Vs. State of Madhya Pradesh
           (A) *****
           (B) Penal Code (45 of 1860), S.306 – Abetment of suicide – Consistent, reliable and
trustworthy evidence to prove that accused husband constantly harassed, humiliated and tortuted his
wife for bringing insufficient dowry articles – Deceased wife poured keresone oil and set her body
on fire – Sustained 100% burn injuries – Accused though present in house at time of incident, made
no attempt to save deceased – Not even bothered to call doctor – Presumption contemplated under
S.113A Evidence Act would be attracted in facts – Accused failed to rebut the same – Conviction of
accused under S.306 and S.4 of Dowry Prohibition Act – Not illegal.
                                                                                 (Paras 9,10,12,14)
        AIR 2007 Supreme Court 2649
         New India Assurance Co. Ltd. V. Smt. Shanti Pathak & Ors.
           (A) Motor Vehicles Act (59 of 1988), S.168 – Motor accident compensation –
Computation – Selection of multiplier – Though deceased was aged 25 years, considering age of his
mother about 65 years and of father more than 65 years at relevant time – Multiplier of 5 would be
apprpriate – Compensation computed accordingly and reduced from Rs.4,10,00/- to Rs.2,10,000/-
                                                                                                (Para 7)
           (B) *****
                                                   94




                                 HIGH COURT CITATIONS
        2007 (3) TLNJ 232 (Civil)
         Arun Alexander Lakshman, Proprietor M/s. Alraj Builders, Chennai and Another
         Vs. A.P. Vedavalli

            Indian Limitation Act 1963 – Section 5 – Petition to condone the delay of 714 days

 in filing petition to set aside the exparte decree under Order 9, Rule 13 of Civil Procedure Code

 1908 – Suit decreed exparte in the year 2002 – Petition filed to set aside exparte decree – allowed

 on condition of deposit of Rs.25,000/- amount deposited – exparte decree set aside – plaintiff field

 execution petition – defendant again filed petition to set aside exparte decree with petition to

 condone delay of 714 days – petition dismissed by single Judge of High Court – appeal filed in

 Original Side – Held: the conduct of the defendant/appellant on the whole does not warrant to

 castigate them as ''irresponsible litigants'' – failure to take extra vigilance not a ground for ousting

 the defendants from litigation when there is a huge claim for compensation – diligent efforts taken

 by defendant by filing memo to search the records – differences with their previous counsel –

 appellants have arguable points on facts and law merits of the main application under Order 9,

 Rule 13 examined to avoid further delay – sufficient grounds exist for setting aside exparte decree

 as well – memo filed by the appellant /defendant to deposit of Rs.3,50,000/- towards credit of the
suit to show their bonfaides taken note of petition to condone the delay allowed on payment of

Costs of Rs.50,000/- to the opposite party – Rs.3,50,000/- to be deposited towards the credit of the

suit as condition for setting aside exparte decree – appeal allowed.




                                                 95




      2007 (3) TLNJ 425 (Civil)
       J.M. Jeyachandran Samuel Vs. G.S.S. Masilamani
           Indian Evidence Act 1872 – Section 109 – Burden of Proof – The presumption is if
the tenant continue to be a tenant it is for him to prove that he continues to be a tenant and in case
of surrender of possession by the tenant, it is for the Land Lord to prove whether the tenant has
surrendered his possession or not.
           Indian Evidence Act 1872 – Section 115 – Estoppel – The mere dismissal of
application of a particular party without any discussion would definitely not be advantageous to
the opposite party and not amounts to an Estoppel.


      2007 (4) CTC 404
       Hairunnisa by her Power Agent Muhamad Ali Jinnah Vs. The Sub Collector,
       Nagapattinam and another.

           Limitation Act, 1963 (36 of 1963) – Code of Civil Procedure, 1908 (5 of 1908),
Section 115 – Condonation of delay – Reopening of the case – Application for Origianl Petition
closed and orders were passed – Application for reopening dismissed – Transfer or Original
Petition to another Court – Fresh Application for re-opening after a period of five years –
Dismissed – Contention that Original Petition was closed without any reference does not make
out any reason for condoning huge delay – Application is bereft of any reason – Order of the
Lower Court in dismissing Application sustained.


      2007 (4) CTC 371
       Kailash Chand Jain Vs. N. Seetharaman and others
           Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Criminal Procedure
Code, 1973 (2 of 1974), Sections 203 & 200 – Necessity of giving full particulars in sworn
statement – Magistrate dismissing Complaints on ground that sworn statments did not contain
particulars of payment of loan, date of cheque and presentation of cheque – When complainant
had furnished all details regarding loan, cheque, bank and statotory notice details in Complaint,
Magistrate ought not have dismissed Complaints on basis of sworn statements alone – Allegations
made in Complaint are to be taken along with sworn statement to decide whether there is a prima
facie case or not – Ratio in judgment reported in Mukesh Jain Vs. Balachander, 2005 (3) CTC
531, applied and followed.




                                               96




      2007 (3) CTC 630
       J. Kanniga Parameswari Vs. The Spl. Commissioner and Commissioner of
       Treasury and Accounts Office, Chennai and 2 Others

           Constitution of India, Article 226 – Tamil Nadu Pension Rules, 1978, Rule 82 -
Pension – Family Pension – Rejection of Family Pension on technical ground – Employee died on
26.01.2006 – Petitioner married deceased during 1984 after death of first wife in 1979 – Deceased
attained superannuation on 31.07.2005 – Misunderstanding between petitioner and deceased –
Judicial Magistrate passed Order for maintenance to be paid by deceased – Deceased specifically
stated that there is no nominee for pension – Petitioner applied for Family Pension – Rejection on
ground that deceased had not nominated anybody to receive family pension – Welfare measure
has been introduced with purpose to enable family of deceased Government servant – Family
Pension cannot be denied on mere technicalities – Object of scheme will be defeated if Family
Pension is rejected – Power of relaxation can be exercised and condition of nomination can be
relaxed – Writ Petition allowed – Impugned Order set aside – Matter remanded to authority to
exercise power under Rule 82 of Pension Rules and to relax condition relating to nomination and
to sanction and pay Family Pension to the petitioner within 3 months from date of receipt of
order.


      2007 (3) CTC 633
       Nagammal Vs. Valliammal
           Transfer of Property Act, 1882 (4 of 1882), Section 54 – Sale – Oral sale of equity
of redemption by one of mortgagors to third party – Property worth more than Rs.100/- ie.
Rs.4,000/- - Effect of non-registration – Claim of mortgagee that she purchased equity of
redemption from third party to mortgage under oral sale held as not permissible in law –
Combained reading of Section 54 of T.P. Act along with Section 17 of Indian Registration Act
contemplates that any such transfer has to be effected by a registered deed – Such oral sale is not
permissible nor does it extinguish right of redemption of mortgagor.
           Transfer of Property Act, 1882 (4 of 1882), Section 60 – Mortgage – Right of
redemption – Right of redemption cannot be extinguished except by ''Act of Parties or by Decree
of Court'' – ''Act of Parties'' – Meaning of – Purchase by mortgagee subsequent to mortgage of
equity of redemption will extinguish right of mortgagor to redeem would mean ''Right of Parties''
– ''Act of Parties'' under Section 60 of T.P. Act means Act of Parties to mortgage transaction –
Father and son (D&A) mortgaged suit property to V – One of mortgagors viz. D orally sold right
of equity of redemption to third party viz. S – Mortgagee V claimed that she purchased right of


                                                   97
equity of redemption from S and hence right of redemption of sucessor of mortgagee was
extinguished – Such plea of mortgagor was negatived holding that purchaser of right of equity
redemption by S who is not a party to mortgage deed does not come within meaning of '' Act of
Parties'' as employed in Section 60 of T.P. Act.
           Indian Registration Act, 1908 (16 of 1908), Section 17 – Compulsory registration of
sale deed worth more than Rs.100/- Oral purchase of right of equity of redemption by third party
to mortgage deed – Property is worth of Rs.4,000/- Effect of – Combined reading of Section 54 of
T.P. Act along with Section 17 of Registration Act contemplates that any such transfer has to be
effected by a registered deed – Purchase of equity of redemption by third party under oral sale is
not permissible in law.
           Words and Phrases - '' Act of Parties'' – Section 60 of T.P. Act – Meaning of – Third
Party to mortgage deed claimed to have purchased right of equity of redemption does not come
within meaning of Act of Parties.


      2007 (3) CTC 641
       M/s. Shri Parvatham Textiles, rep by its sole proprietor Vs. M/s. Chona Financial
       Services Pvt. Ltd., rep by its Managing Director

             Code of Civil Procedure, 1908 (5 of 1908), Section 115 and Order 21, Rules
41(2) & 41(3) – Judgment-Debtor entered into Agreement with decree holder on 18.12.2002 and
started trading in Stock Exchange – Judgment-Debtor defaulted in making payment due to loss in
transaction – Dispute arose – Dispute was referred to National Stock Exchange of India –
Arbitrator was appointed on 12.10.2004 to resolve disputes between parties – Arbitrator passed
Award directing judgment-Debtor to pay to decree holder a sum of Rs.6,27,054.33 with interest at
18% p.a. from date of award till date of realization – Decree transmitted from City Civil Court,
Chennai to 1st Additional Subordinate Court, Erode – E.P. No.219 of 2005 filed by decree holder
to realize amount by arrest of Judgment-Debtor – Judgment-Debtor filed proof affidavit stating
that he did not own movable or immovable property – Decree holder filed an application seeking
for direction to Judgment-Debtor for production of details of his income and properties for
satisfaction of decree, as he was having another business in some other name and such
Application was allowed – Judment-Debtor failed to comply with directions nor filed any
affidavit stating details of his income but challenged said order – Object of Order 21, Rule 42, is
to enable decree holder to get information of assets which is within knowledge of Judgment-
Debtor – Order passed by executing Court directing production of document is correct order,
upheld – Decree holder filed another Application seeking for arrest as Judgment-Debtor
disobeyed order of Court by not filing affidavit and arrest was ordered – Even if Judgment-Debtor


                                                 98


had no assets, Judgment-Debtor ought to have obeyed order of Court by filing affidavit and arrest
was ordered – Even if Judgment-Debtor had no assets, Judgment-Debtor ought to have obeyed
order of Court by filing affidavit – Order of arrest of Judgement-Debtor was justified – order of
arrest does not suffer from any procedural impropriety calling for intereference – Orders of
Executing Court directing production of document or filing of affidavit and order of arrest on
account of default in complaince of earlier order confirmed in Revision.CRP dismissed – No costs
– MP Dismissed.
      2007 (3) CTC 668
       A.V. Gopalakrishnan Vs. O.L.V.R. Paramanandam
              Tamil Nadu Buildings ( Lease & Rent Control) Act, 1960 (Act 18 of 1960), Section
4 – In a Petition to fix fair rent, guideline value cannot form foundation to determine market value
– It is duty of landlord to prove exact market value by sufficient oral and documentary evidence –
Opinion of engineer cannot be equated to evidence of expert under Section 45 of the Evidence Act
– Matter remitted to Rent Controller to decide fair rent afresh after giving sufficient opportunity to
both parties to adduce further evidence, if any. CRP allowed – Matter remanded for fresh disposal
– No costs.


      2007 (3) CTC 672
       V. Radhakrishnan and 3 Others Vs. The Registrar, CAT, Madras Bench and 3
       others

              Constitution of India, Article 226 – Industrial Disputes Act, 1940, Section 2(ra) –
Regularization of casual daily labourers employed for two decades – Casual daily labourers
employed in state Forest College for two decades were accorded Temporary status – Creations of
posts is pending with Government of India – Tribunal directed forest college to regularize services
of casual daily labourers as and when vacancy arises – Appointment of casual daily laboureres not
de hors rules and not through back door entry – Failure to také steps to regularize service and
permitting them to remain in temporary employee status amounts to sheer exploitation of labour
as envisaged under Section 2 (ra) of Act besides it is not a wise policy to continue services of
petitioners as temporary employees for two decades – Hence direction issued to Government of
India to také positive steps and to pass appropriate orders for creations of Group-D posts for
purpose of conferring permanent status on petitioner within 12 weeks from date of receipt of copy
of order and further direction to third and fourth respondent to grant permanent status within four
weeks from date of receipt of orders from Government of India. W.P. disposed of with directions
– No costs – W.P.M.P. Closed.


                                                  99


      (2007) 5 MLJ 1232
       M.Subramani Vs. P. Shanmugam and Others
           Indian Evidence Act (1 of 1872) – Recitals in documents – Recitals as to boundaries
in documents not inter parties not admissible in evidence unless executants examined as held in
Amiappa Nainar Vs. Annamalai Chettiar (1972) 1 MLJ 317 – Minor discrepancy in document
cannot be considered for throwing out plaintiff's claim, relying on improved documents on other
side – Defendants themselves not proved documents they relied on – Said documents inadmissible
in evidence – Appellate Court not considered issue in proper perspective.


      (2007) 5 MLJ 1314
       A. Ismail Khan (died) and Others Vs. Lalitha Devi and Others
           Family arrangement – Muslim Family – Partition deed – Condition, if when share
sold, to be sold only to other sharers – Two of five sharers selling their shares to outsiders
plaintiffs – Defendants denying plaintiff's title – Suit for declaration and possession by plaintiffs –
Defendants appellants contention, by partition deed sale of property to outsiders prohibited –
Right to pre-emption created – Sale could be efected only between sharers – Parties agreed to said
terms whe they signed deed – Held, all parties agreed to partial restraint on alienation – Plaintiff
knew about said restraint on alienation - Yet purchased suit property – No evidence to show other
sharers refused to buy suit property – Sale in favour of plaintiffs invalid – Plaintiff not entitled to
declaration.
      (2007) 5 MLJ 1005
       Ramasamy and Another Vs. Kamalammal and Others
           Negotiable Instruments Act (26 of 1881), Section 118 – Suit on promissory note –
Presumption and proof – Signature of defendant on promissory note admitted – Presumption is in
favour of the promissory note – Onus shifts to defendants to disprove its contents.




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