THE REGISTERATION ACT, 1908

CASE ANALYSIS ASSIGNMENT

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 CASE ANALYSIS
CASE – ASPIRE INVESTMENTS PRIVATE LTD
V NEXGEN EDUSOLUTIONS PRIVATE LTD,
192/2009
FACTS
1. The appellant has filed the present appeal under
Section 37 of the Arbitration &Conciliation Act,
1996 (hereinafter referred to as “the act”) single
Judge has been pleased to set aside the interim award
dated 26.06.2014 passed by the sole arbitrator
dismissing the application filed by the respondent
under Order 12 Rule 6 of the Code of Civil
Procedure, 1908 read with Section 31 of the Act.
2. The appellant had taken on rent premises at flat
No. F – 601 – 608 and F – 610 – 619 on the sixth
floor of Aditya Tower, Building/Plot No.5, District
Centre, Delhi on a monthly rental of Rs.1,50,000/-
under lease deed dated 27.03.2008. The period
stipulated in the lease deed was 10 years. However,
the lease deed was neither sufficiently stamped being
stamped on a stamp paper of Rs. 50/- only nor was it
registered.
3. Since the lease deed was neither sufficiently
stamped nor registered, the lease-deed is
inadmissible in evidence and cannot be looked into
for any purpose and no term of the lease can be
enforced. Since the terms of the lease cannot be
relied upon or enforced, the term that provided the
appellant a period of 10 years also cannot be
enforced. The result of which is that the tenancy
becomes a month to month tenancy.
4. The lease-deed granted the appellant a concession
for a period of 3 months to make the leased premises
habitable. The appellant was required to pay 50% of
the rent i.e. a sum of Rs. 75,000/- for the initial
period of 3 months and thereafter with effect from
27th June, 2008, the full rent of Rs. 1,50,000/- was
payable. The appellant also deposited a sum of Rs.
9,00,000/- as security deposit and advance rent for
initial three months.
5. As per the respondent, the appellant failed to pay
the rent after taking possession of the leased
premises and accordingly by notice dated 13th
October 2008, the tenancy of the appellant was
terminated and the appellant was asked to vacate and
hand over the possession of the leased premises on
or before 1st of the month.
7. On the application of the appellant under Section
8 of the Act, the Suit filed by the respondent was
disposed of. Thereafter, on an application under
Section 11 (6), the arbitrator was appointed to
adjudicate the claims raised by the respondent which
inter-alia included the relief of possession, arrears of
rent and mesne profits. Before the arbitrator, the
appellant filed a counter-claim seeking specific
performance and registration of the lease deed.
ISSUES
 Whether or not a lease executed be said to be
valid, if landlord is involved and lease so
executed is in contravention to the law?
 Whether or not the law provides the mention of
person who is at fault for non registeration of a
lease deed?
 Whether or not if the lease is for more than 11
months and is not registered be enforced?
JUDGEMENT
1. In the present case, admittedly the document was
not presented for registration even within 8 months
of the date of the execution of document. The lease-
deed has been executed by both the parties, i.e. the
respondent as well as the appellant. There is nothing
on record to show that on the failure of the
respondent to present the document for registration,
the appellant presented the document before the
registrar for registration.
2. Further, we may note from a copy of the lease
deed placed on record by the appellant that the lease
deed is executed on a stamp paper of only Rs. 50/-.
The initial rent stipulated was Rs. 1,50,000/- per
month. The period of the lease mentioned is 10 years
with an increment of 10% cumulatively every third
year.
3. Further, we may notice that under Clause 12.1 of
the lease the cost and expenses of stamp papers and
registration of the lease deed were to be borne by the
lessee (the appellant). The above clause of the lease
deed clearly shows that it was the appellant, who had
to bear the cost of the stamp papers for the execution
and registration of the lease-deed.
4. The learned single Judge, in our view, has rightly
held that the arbitrator could not have treated the
unregistered lease-deed as a registered one and could
not have ignored the consequences of non-
registration of the lease deed and could not have
treated the lease period as 10 years.
5. In our view, the learned single Judge has rightly
held that the learned arbitrator committed an error in
observing that provisions of Order 12 Rule 6 would
not be applicable as there was serious dispute as to
what made the applicant not to take any steps to get
the lease- deed registered particularly in view of the
purpose for which it was given, that is, for running
an educational institution which could not have been
on a month to month basis.
6. An educational institution cannot be treated any
differently in the matter of leases of immovable
properties. Section 106 of the Transfer of Property
Act, 1882, makes an exception only in respect of
leases of immovable property for agricultural and
manufacturing purposes, which leases, in the
absence of a contract or local law or usage to the
contrary, shall be deemed to be from year to year,
terminable by a six months' notice and a lease of
immovable property for any other purpose shall be
deemed to be a lease from month to month,
terminable by fifteen days' notice.
7. The effects of non-registration of a lease-deed are
automatic and applicable irrespective of the nature of
tenancy or the purpose for which the same has been
let. The educational institution cannot be treated any
differently.
8. The learned single Judge, in our view, has rightly
held that the principles analogues to Order XII Rule
6 CPC are equally applicable to arbitration
proceedings. As noticed above, there is no dispute
between the parties as to relationship i.e. of landlord
and tenant; there is no dispute as to the rate of rent
being more than Rs. 3500/- and that the tenancy is
not protected under the Delhi Rent Control Act,
1958.
9. In view of the above, we find no infirmity in the
impugned order restoring the application under
Order XII Rule 6 CPC to the file of arbitrator. The
appeal is accordingly dismissed with costs quantified
at Rs. 25,000/- to be paid by the appellant to the
respondent in addition to the costs imposed by the
learned single Judge within a period of two weeks
from today.
 CASE 2
BUDH RAM V RALLA RAM (1987)4 SCC 75
BENCH – SABYASACHI MUKHARJI,G.L.OZA
FACTS
1. This is an appeal by the tenant against an order of
eviction granted by the Rent Controller and
maintained by the appellate authority and revision
petition against which was dismissed by the High
Court. The eviction was sought on the ground of
arrears of rent. It was alleged that the shop in dispute
was let out to the appellant tenant @ Rs. 5000/-per
annum whereas according to the appellant tenant the
rent was Rs. 2,500/- per annum and not Rs. 5,000/-
per annum. It was pleaded in the application on
behalf of the landlord that the rent note was executed
on March 25, 1975. This was for one year and the
rent fixed was Rs. 5,000/-. According to the tenant, it
was pleaded that the rent was Rs. 2,500/-. The
signature on the rent note were disputed.

2. After recording evidence the courts have came to

the conclusion that the rent note was executed by the
appellant-tenant. The rent note mentions that it is for
one year. It appears in evidence that initially Rs.
5,000/- were paid by the appellant and later on Rs.
2,500/- were returned. According to the landlord this
was returned as it was agreed that the tenant will
remain in the premises only for six months and not
for one year and therefore Rs. 2,500/- were returned.
It is alleged that in the rent note there is also a term
that the rent will be paid in advance.

3. The landlord before the Rent Controller claimed

that the tenant was in arrears of rent to the extent of
Rs. 2,500/- for the period commencing from 1st
October, 1975 to 31st March 1976 and was in arrears
of Rs. 5,000/- for the period commencing from 1st
April, 1976 to 31st Mrrch, 1977. It is not in dispute
that on July 30, 1976, the tenant-appellant tendered a
sum of Rs. 2,500/- saying that it is the advance rent
from 9th April, 1976 to 8th April, 1977. He also
tendered Rs. 52/- by way of interest and Rs. 30/- as
costs, and it is on this basis that it was contended that
as this amount of rent was tendered on the first date
of hearing, the landlord was not entitled to eviction
under Section 13 of the East Punjab Rent Restriction
Act.

JUDGEMENT

1.The courts below came to the conclusion that the

contention of the tenant that the annual rent was Rs.
2,500/- is not established. It was further held that
therefore on 30th July when the tenant tendered Rs.
2,500/- it was not rent upto date as he was in arrears
not only of the amount of Rs. 2,500/-for the year
ending on March 1976 but he was in arrears for the
next year.
2. It was also observed that if this rent note could not
be used as a piece of evidence for lease from year to
year and the lease came to an end after one year, the
tenant could only be said to be a tenant holding over
and thus he could only be treated as a monthly tenant
and even in that view of the matter within the
language of Section 13, the tenant will be in arrears
atleast for 2 months rent i.e. April and May even if
the term in the rent note of payment of yearly rent in
advance is also not given effect to and in this view of
the matter the order of eviction has been maintained.

3. The main contention advanced on behalf of the

appellant is that as the rent note is for one year and it
fixed yearly rent and talks of yearly rent in advance
it clearly is a lease from year to year and therefore as
it is not registered in view of Section 17 of the
Registration Act and Section 107 of the Transfer of
Property Act, this could not be admitted in evidence
and therefore the term could not be enforced which
talked of payment of yearly rent in advance and it
was therefore contended that the tenant at the most
could be held to be in arrears to the tune of Rs.
2,500/- as Rs. 2,500/- was paid in advance and on
this basis it was contended that the decree for
eviction could not be maintained.
 CASE 3
CHIRANJILAL SRILAL GOENKA V JASIT
SINGH,(2001) 1 SCC 486
FACTS
1. Shri Chiranjilal Shrilal Goenka was involved in
several suits and one of which is the pending appeal
at his behest. He died on 25/11/1985 leaving behind
last will dated 29/10/1982 said to have been
executed in which he appointed his younger
daughter Mrs Sushila N. Rungta as sole executrix of
his will. Radhey Shyam claims to be the adopted son
of Shri C. S. Goenka. Radhey Shyam is the natural
son of Shri Mangal Chand Kedia and Mrs Sita
another daughter of Shri C. S. Goenka. The
applicant, executrix; Radhey Shyam and his wife
filed substitution applications under Order 22 Rule 3
Civil Procedure Code setting up rival claims. When
the dispute arose as to who would represent the
estate of Shri C. S. Goenka, by order dated
7/10/1991 this court brought all the three on record
as legal representatives. By further order dated
1/11/1991 this court passed the following order: "By
consent of parties Justice V. S. Deshpande, retired
chief justice of the Bombay High court is appointed
as arbitrator to settle the dispute as to who would be
the legal heirs to the estate of late Chiranjilal Shrilal
Goenka "
2. The rest of the order is not necessary for the
purpose of this case, hence omitted. Pursuant thereto
Shri Justice V. S. Deshpande entered upon the
arbitration. Preceding the order counsel for Shri
Radhey Shyam had enclosed a letter giving details of
all the pending suits and Item No. 19, Suit No. 65 of
1985, titled S. N. Rungta v. R. C. Goenka was one
such case. The schedule of the suits was annexed to
the order of appointment of the arbitrator. On filing
the respective pleadings, the arbitrator framed
diverse issues. Issues 1 and 2 relate to two wills and
are as under: "1.Does Claimant No. 1 prove
execution of the will dated 29th (2 8/10/1982 and
prove the same to be the last and genuine will of late
Shri C. S. Goenka. 2. If not does she prove the
execution of the will dated 4/07/1978 and prove the
same to be the last and genuine will of the late Shri
C. S. Goenka. "

3. Simultaneously proceedings in the probate suit is

being pursued in Bombay High court wherein the
learned Judge, on application, expressed doubt
whether arbitrator has jurisdiction to decide probate
suit. Similarly, onapplication made before the
arbitrator seeking clarification, he too had stated that
when the appointment of him as arbitrator was made
and all the pending proceedings were referred to in
the schedule, it would be assumed that this court
applied its mind and referred to him the probate suit
as well but he cannot give any clarification in that
behalf. It would be expedient to the applicant to seek
clarification from this court. Thus the prayers in the
application are: "A.that this Hon'ble court may be
pleased to allow the applicant to proceed with the
Probate Suit No. 65 of 1987 pending before the
Hon'ble High court of Bombay in accordance with
law; and B. to pass such order and other orders as
this Hon'ble court may deem fit and proper in the
circumstances. "
4. Shri Satish Chandra, learned senior counsel for the
applicant contended, placing reliance on Gopi Rai v.
B. N. Rai Ghellabhai Atmaram v. Nandubai and
Monmohini Guha v. Banga Chandra Das that
probate court has exclusive jurisdiction to grant
probate of the will to the applicant for due
implementation of the directions contained in the
will as the executrix. That issue cannot be referred to
arbitration and the arbitrator thereby is devoid of
jurisdiction to decide issues 1 and 2. He also further
contended that the applicant had not consented to
refer the probate suit for arbitration.
5. Shri P. Chidambaram, learned senior counsel for
the respondents contended that preceding the order
of this court dated 1/11/1991, the counsel for the
respondents addressed a letter to the counsel for the
petitioner including the probate suit for reference to
arbitration. This was to obviate the litigation pending
in all the courts as to who are the legal heirs of Shri
C. S. Goenka. Thereafter this court appointed Shri
Justice V. S. Deshpande. The contention, therefore,
of the applicant that she did not consent to refer the
probate suit for arbitration is an afterthought and
cannot be accepted. He further contended that this
court, with a view to put an end to the litigation in all
the suits pending in different courts, appointed the
arbitrator to decide all the disputes in pending suits
so that it would bind them.
6. Having given our anxious consideration we will
proceed further in deciding the scope and effect of
the order passed by this court. As seen the order of
reference to the arbitrator relates "to settle dispute as
to who would be the legal heirs to the estate of Shri
C. S. Goenka". Section 2 (11) of Civil Procedure
Code Act 1908 defines legal representative' to mean
a person who in law represents the estate of a
deceased person, and includes any person who
intermeddles with the estate of the deceased and
where a party sues or is sued in a representative
character the person on whom the estate devolves on
the death of the party so suing or sued. Order 22
Rule 3 says that if "one of two or more plaintiffs die
and the right to sue does not survive to the surviving
plaintiff or plaintiffs alone, or a sole plaintiff or sole
surviving plaintiffs dies and the right to sue survives,
the court on an application made in that behalf, shall
cause the legal representatives of the deceased
plaintiff to be made a party and shall proceed with
the suit".

7. Inheritance is in some sort a legal and fictitious

continuation of the personality of the dead man, for
the representation is in some sort identified by the
law with him who he represents. The rights which
the dead man can no longer own or exercise in
propria persona and the obligations which he can no
longer in propria persona fulfil, he owns, exercises
and fulfils in the person of a living substitute. To this
extent, and in this fiction, it may be said that legal
personality of a man survives his natural personality;
until his obligations being duly performed, and his
property duly disposed of, his representation among
the living is no longer called for

8. In Black's Law Dictionary the meaning of the

word legal representative' is: The term in its broadest
sense means one who stands in place of, and
represents the interests of another. A person who
oversees the legal affairs of another. Examples
include the executors or administrator of an estate
and a court appointed guardian of a minor or
incompetent person
9. Term legal representative' which is almost always
held to be synonymous with term 'personal
representative', means in accident cases, member of
family entitled to benefits under wrongful death
statute, unsatisfied claim and judgment fund. In
Andhra Bank Ltd. v. R. Srinivasanthis court
considered the question whether the legatee under
the will is the legal representative within the
meaning of Section 2 (11 of the Code. It was held
that it is well known that the expression "legal
representative" had not been defined in the Code of
1882 and that led to a difference of judicial opinion
as to its denotation. Considering the case-law
developed in that behalf it was held that respondents
2 to 12, the legatees under the will of the estate are
legal representatives of the deceased Raja Bahadur
and so it follows that the estate of the deceased was
sufficiently represented by them when the judgments
were pronounced.
10. Section 3 (f) of the Hindu Succession Act, 1956
defines "heirs" to mean any person, male or female
who is entitled to succeed to the property of an
intestate under this Act. Section 8 thereof provides
that the property of a male Hindu dying intestate
shall devolve according to the provisions of this
chapter, 'chapter II' (Intestate succession) firstly
upon the heirs, being the relatives specified in Class
I of the Schedule. . Schedule provides Class I heirs
are son, daughter, widow, mother. . Thus under the
personal law of Hindu Succession Act, if a Hindu
dies intestate, the heirs either male or female
specified in Schedule I, Class I, are heirs and
succeed to the estate as per law. In their absence, the
next class or classes are entitled to succeed to the
property of an intestate under the Act. In Sudama
Devi v. Jogendra Choudhary a full bench considered
the question whether father of the minor in
possession of his property and who himself was a
party to the suit along with the minor is legal
representative. The minor died.
11. Section 213 of the Indian Succession Act (39 of
1925 for short 'the Succession Act' provides right to
the executor to obtain probate of the will thus: "(1
No right as executor. . can be established in any
court of Justice, unless a court of competent
jurisdiction in India has granted probate of the will
under which the right is claimed.
12. Section 276 provides the procedure to obtain
probate, namely, (1 application for probate. . with
the will annexed, shall be made by a petition
distinctly written in English. . with the will or copy,
as the case may be, staling the particulars and the
details mentioned in clauses (a) to (e) and further
details provided in Ss. (2 and (3, the mention of the
details whereof are not material for the purpose of
this case. The petition shall be verified in the manner
prescribed under Section 280 and also further to be
verified by at least one of the witnesses to the will in
the manner and to the effect specified therein.

JUDGEMENT

1. We agree with Mr Chidambaram that the

applicant had consented to refer the dispute for
arbitration of dispute in the pending probate
proceedings, but consent cannot confer jurisdiction
nor an estoppel against statute. The other legatees in
the will were not parties to it. In A. R. Antulay v. R.
S. Nayak when a Constitution bench directed the
High court Judge to try the offences under the
Prevention of Corruption Act with which the
petitioner therein was charged and the trial was
being proceeded with, he questioned by way of writ
petition the jurisdiction of this court to give such a
direction. A bench of seven judges per majority
construed the meaning of the word 'jurisdiction'.
Mukharji, J. as he then was, speaking per himself,
Oza and Natarajan, JJ. held that the power to create
or enlarge jurisdiction is legisiative in character. So
also the power to confer a right of appeal or to take
away a right of appeal. The Parliament alone can do
it by law and no court, whether superior or inferior
or both combined, can enlarge the jurisdiction of a
court and divest a person of his rights of appeal or
revision.

2. It is settled law that a decree passed by a court

without jurisdiction on the subjectmatter or on the
grounds on which the decree made which goes to the
root of its jurisdiction or lacks inherent jurisdiction is
a coram non judice. A decree passed by such a court
is a nullity and is non est. Its invalidity can be set up
whenever it is sought to be enforced or is acted
uponas a foundation for a right, even at the stage of
execution or in collateral proceedings. The defect of
jurisdiction strikes at the very authority of the court
to pass decree which cannot be cured by consent or
waiver of the party. In Bahadur Singh v. Muni
Subrat Dass an eviction petition was filed under the
Rent Control Act on the ground of nuisance. The
dispute was referred to arbitration. An award was
made directing the tenant to run the workshop up to
a specified time and thereafter to remove the
machinery and to deliver vacant possession to the
landlord. The award was signed by the arbitrators,
the tenant and the landlord. It was filed in the court.
A judgment and decree were passed in terms of the
award. On expiry of the time and when the tenant
did not remove the machinery nor delivered vacant
possession, execution was levied under Delhi and
Ajmer Rent Control Act. It was held that the decree
was nullity and, therefore, the tenant could not be
evicted.

3. In Gopi Rai case Sulaiman, J. as he then was,

speaking for the division bench held that the civil
court has no jurisdiction to allow the dispute relating
to the genuineness of a will in a probate proceedings
pending before him to be referred to the arbitration
of an arbitrator. He has got to be satisfied that the
will is a genuine document before the order of
granting probate is passed. He cannot delegate those
functions to a private individual and decide the point
through him. Similar was the view laid in
Monmohini Guha case, Sarda Kanta Das v. Gobinda
Das and Khela Wati v. Chet Ram Khub Ram. When
the plea of estoppel was raised, Sulaiman, J. in Gopi
Rai case held that "we cannot hold that there is any
estoppel against Gopi Rai on this question of
jurisdiction.
4. On a conspectus of the above legal scenario we
conclude that the probate court has been conferred
with exclusive jurisdiction to grant probate of the
will of the deceased annexed to the petition (suit); on
grant or refusal thereof, it has to preserve the original
will produced before it. The grant of probate is final
subject to appeal, if any, or revocation if made in
terms of the provisions of the Succession Act. It is a
judgment in rem and conclusiveand binds not only
the parties but also the entire world. The award
deprives the parties of statutory right of appeal
provided under Section 299. Thus the necessary
conclusion is that the probate court alone has
exclusive jurisdiction and the civil court on original
side or the arbitrator does not get jurisdiction, even if
consented to by the parties, to adjudicate upon the
proof or validity of the will propounded by the
executrix, the applicant.
 CASE 4-
COMMERCIAL AVIATION AND TRAVEL AND
CO. V VIMAL PANNALAL 1988 AIR SC 1636

The case of Commercial Aviation & Travel

Company & Ors. vs Vimal Pannalal was heard by
the Supreme Court of India on July 13, 1988. The
appeal was filed by the defendants against the
judgment of the Delhi High Court. The main issue in
the case was whether the suit filed by the plaintiff for
dissolution of partnership and accounts was
undervalued for the purpose of court fees.

Facts
The plaintiff filed a suit in the Delhi High Court
seeking the dissolution of the partnership and
accounts. The plaintiff valued the suit at Rs. 25 lakhs
for the purpose of jurisdiction and at Rs. 500 for
court fees. The defendants raised a preliminary
objection, contending that the relief sought in the
suit had been undervalued and requested the court to
reject the plaint under Order VII, Rule 11(b) of the
Code of Civil Procedure.

The learned Single Judge of the High Court rejected

the preliminary objection and held that the suit was
not undervalued. The defendants appealed to a
Division Bench, which affirmed the decision of the
Single Judge, relying on a previous Full Bench
decision of the High Court.

Issues
1. Whether the suit filed by the plaintiff was
undervalued for the purpose of court fees.
2. Whether the court had the power to interfere with
the plaintiff’s valuation of the relief sought.

Arguments
The defendants argued that in a suit for accounts, the
plaintiff could not arbitrarily value the suit according
to their whims. They contended that there was an
objective standard or positive material on the face of
the plaint, and the valuation of the relief, ignoring
such an objective standard, was demonstratively
arbitrary.

The plaintiff relied on the Full Bench decision of the

High Court, which held that the plaintiff had the
right to place any value on the relief sought, subject
to any rules made under the Suits Valuation Act.
They argued that the court had no power to interfere
with the plaintiff’s valuation.
 Judgment
The Supreme Court dismissed the appeal and upheld
the lower courts’ decisions. The apex court held that
in suits mentioned under section 7(iv) of the Court
Fees Act, it is difficult to lay down a standard of
valuation. The legislature has not provided any
standard of valuation in the Act. Therefore, the
plaintiff has the right to value the relief sought,
subject to any rules made under the Suits Valuation
Act.

The Supreme Court also observed that in a suit for

accounts, it is almost impossible for the plaintiff to
accurately value the relief. Until the accounts are
taken, the plaintiff cannot determine the exact
amount that may be due to them. The court noted
that Order VII, Rule 11(b) of the Code of Civil
Procedure requires the court to come to a finding
that the relief claimed has been undervalued. In a
suit for accounts, the court can’t determine the
correct value at a preliminary stage.

Principles Laid Down in the Case

These are the principles laid down by the Supreme
Court in Commercial Aviation & Travel Company
vs Vimal Pannalal:
1. In suits mentioned under section 7(iv) of the Court
Fees Act, the plaintiff has the right to value the
relief sought, subject to any rules made under the
Suits Valuation Act.
2. In a suit for accounts, it is difficult for the plaintiff
to value the relief until the accounts are taken
accurately.
3. The court cannot interfere with the plaintiff’s
valuation unless there are objective standards or
positive materials on the face of the plaint.

Conclusion
The Supreme Court concluded that the suit filed by
the plaintiff was not undervalued for the purpose of
court fees. The court held that in suits for accounts, it
is not possible to determine the correct value of the
relief at a preliminary stage. The Supreme
Court emphasized that the plaintiff cannot
whimsically choose a ridiculous figure for the suit.
Still, in the absence of objective standards or
positive materials, the plaintiff’s valuation of the
relief sought should be accepted. The Court upheld
the principle that the plaintiff has the right to value
the relief subject to any rules made under the Suits
Valuation Act.

In this case, the Supreme Court recognized the

practical difficulties in valuing suits for accounts,
where the exact amount due cannot be determined
until the accounts are taken. By affirming the
plaintiff’s right to determine the value of the relief
sought, the court ensured that plaintiffs are not
burdened with arbitrary valuation requirements that
may hinder access to justice.

The judgment also clarified that the court should not

interfere with the plaintiff’s valuation unless there
are objective standards or positive materials on the
face of the plaint. It prevents the court from being
overly intrusive in determining the value of the relief
and maintains the plaintiff’s autonomy in assessing
the value of their claims.

Overall, the judgment in Commercial Aviation &

Travel Company & Ors. vs Vimal Pannalal
reaffirmed the principle that in suits for accounts, the
plaintiff has the discretion to value the relief sought,
considering the practical challenges of determining
the exact amount until the accounts are taken. The
court’s decision ensures fairness and reasonable
access to justice by allowing plaintiffs to initiate
proceedings without undue valuation burdens while
also maintaining the court’s power to intervene if
there are clear objective standards or positive
materials justifying a different valuation.
 CASE 5 –

DINA JI V DADDI (1990) 1 SCC 1: AIR 1990 SC

1153

FACTS
1. This appeal arises out of the Judgment dated
13.12.1971 of the High Court of Madhya Pradesh in
Second Appeal No. 617/89, wherein the learned
Judge of the High Court dismissed the Second
Appeal filed by the present appellant.
2. The present appellant filed a suit for injunction
and possession on the basis of a registered sale deed
dated 28.4.66 executed by Smt Yashoda Bai in his
favour with respect to Immovable Property including
agricultural lands and houses.
3 The property originally belonged to her husband
and after his death she got it as a limited owner and
by influx of time and by coming into force of the
Hindu Succession Act, she acquired the rights of an
absolute owner. On 28.4.63, she adopted respondent
Nain Singh as her son and executed a document said
to be the Deed of Adoption. This document is not a
registered document and the trial court admitted it in
evidence in proof of adoption. This document, in
addition to recital of the factum of adoption in
presence of Panchayat in accordance with the
custom of the Community also contained a covenant
wherein she had stated that after this deed of
adoption her adopted son will be entitled (Hakdar) to
the whole property including movable and
immovable and she will have no right to alienate any
part of the property after this deed of adoption.
4. The trial court decreed the suit. The first appellate
court dismissed the suit setting aside the decree
passed by the trial court. The learned judge of the
High Court considering the impact of Section 12 of
the Hindu Adoptions and Maintenance Act rightly
held that the adopted son, in view of the proviso (C)
to Section 12, will only be entitled to property after
the death of the adoptive mother but the learned
judge felt that the further covenant in the adoption
deed deprived her of that right and conferred that
right on the adopted son, on this basis the learned
judge of the High Court came to the conclusion that
the widow after executing this deed of adoption had
no right left in the property and therefore a transfer
executed by her will not confer any title on the
plaintiff.

5. learned Counsel for the appellant contended that

the document which is described as a deed of
adoption, in substance, is in two parts. One recites
the factum of adoption and the second contains the
covenant wherein she has relinquished her rights in
the property and conferred rights on adopted son.
6. Section 12 of the Hindu Adoptions and
Maintenance Act reads as follows: Effects of
adoption :An adopted child shall be deemed to be the
child of his or her adoptive father of mother for all
purposes with effect from the date of the adoption
and from such date all the ties of the child in the
family of his or her birth shall be deemed to be
severed and replaced by those created by the
adoption in the adoptive family :
7. Proviso (C) of this Section departs from the Hindu
General Law and makes it clear that the adopted
child shall not divest any person of any estate which
has vested in him or her before the adoption. It is
clear that in the present case, Smt. Yashoda Bai who
was the limited owner of the property after the death
of her husband and after Hindu Succession Act came
into force, has become an absolute owner and
therefore the property of her husband vested in her
and therefore merely by adopting a child she could
not be deprived of any of her rights in the property.
The adoption would come into play and the adopted
child could get the rights for which he is entitled
after her death as is clear from the Scheme of
Section 12 proviso (C).

JUDGEMENT
1. Section 13 of the Hindu Adoption and
Maintenance Act reads as :
Right of adoptive parents to dispose of their
properties :
Subject to any agreement to the contrary, an
adoption does not deprive the adoptive father or
mother of the power to dispose of his or her property
by transfer inter vivos or by will.
This Section enacts that when the parties intend to
limit the operation of proviso (C) to Section 12, it is
open to them by an agreement and it appears that
what she included in the present deed of adoption
was an agreement to the contrary as contemplated in
Section 13 of the Hindu Adoptions and Maintenance
Act.
2. Section 17(1)(b) of the Registration Act clearly
provides that such a document where any right in
movable property is either assigned or extinguished
will require registration. It could not be disputed that
this part of the deed which refers to creation of an
immediate right in the adopted son and the divesting
of the right of the adoptive mother in the property
will squarely fall within the ambit of Section 17(1)
(b) and therefore under Section 49 of the
Registration Act, this could not be admitted if it is
not a registered document.
3. Unfortunately, the Hon'ble Judge of the High
Court did not notice this aspect of the matter and felt
that what could not be done because of the proviso
(C) to Section 12 has been specifically provided in
the document itself but this part of the document
could not be read in evidence as it could not be
admitted. In view of this, the appeal is allowed. The
Judgments of the High Court and that of the lower
appellate Court are set aside and that of the trial
court is restored. In view of these Special
circumstances, there is no order as to costs.