Under which circumstances the court can grant relief to defendant?

 It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not Such cases as Luke v. South Kensington Hotel Co. (1879) 11 Ch D 121 and Cullen v. Knowles (1898) 2 Q.B. 380 are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action: see Hughes v. Pump House Hotel Co. Ltd. (No. 2) (1902) 2 K.B. 485 Once all the parties are before the Court, the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants. Prima facie therefore the trial Court in the present case should have given judgment in favour of the eight of the original partners who survived, though some of them had been made defendants: see Cullen v. Knowles (1898) 2 Q.B. 380 at page 382. {Para 11}

 BEFORE THE PRIVY COUNCIL

Decided On: 02.05.1939

Manghibai  Vs. Cooverji Umersey

Hon'ble Judges/Coram:

Porter, Thankerton and George Rankin, JJ.

Author: Porter, J.

Citation: AIR 1939 PC 170, MANU/PR/0023/1939.

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Privy Council: The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family

 With reference to this decision Lord Watson observed:

There are two substantial reasons why it ought not to be followed as an authority. In the first place it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family. In the second place the learned Judges misapprehended the law of England, because it is clear, according to that law, that a conveyance, or an agreement to convey his or her personal interest by one of the joint tenants, operates as severance.

12. In their Lordships' opinion this is a clear ruling that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship. There could therefore be no question of these grants creating a joint tenancy as opposed to a tenancy in common, even if according to English law the terms of these instruments admitted of such a construction.

13. As to the question whether these grants were made to these two brothers severally or as members of a joint family that depends on the intention of the donor as expressed in the grants. Prima facie a gift to a member of a joint Hindu family is his separate property and will only become joint family property when it descends to his sons, unless he himself has made it joint family property by throwing it into the common stock. There is nothing in the terms of these maintenance grants to these two brothers to suggest that the Government intended to make a grant to a joint family.

 BEFORE THE PRIVY COUNCIL

Decided On: 12.01.1933

Bahu Rani and Ors. Vs. Rajendra Baksh Singh

Hon'ble Judges/Coram:

Thankerton, John Wallis and Lancelot Sanderson, JJ.

Author: John Wallis, J.

Citation: MANU/PR/0002/1933

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Whether decree passed in suit will be binding only to parties to suit if their application for filing representative suit is rejected?

"We are satisfied," say the learned Judges,

that no permission was applied for orally or in writing, and that no permission was granted expressly or impliedly under Section 50 corresponding to Order 1, Rule 8, Civil P.C., to the plaintiffs to sue on behalf of or for the benefit of all the Vaniyas interested, along with the plaintiffs, to worship in the Tiruchendur temple as alleged by the plaintiffs.

12. In the result with all these converging considerations in mind their Lordships are in agreement with the learned Subordinate Judge that the original suit, at all events by the date of the decree, had become one from which every trace of representation was eliminated: that the decree of dismissal was as it bears to be a decree inter partes only: and that if the plaintiffs had, by the learned Subordinate Judge, been held entitled to judgment, they would have obtained from him, at the most, the individual (order is the terms which, as he stated, they were then claiming.

BEFORE THE PRIVY COUNCIL

Decided On: 11.04.1933

Kumaravelu Chettiar  Vs. T.P. Ramaswami Ayyar and Ors.

Hon'ble Judges/Coram:

Blanesburgh, Macmillan and John Wallis, JJ.

Citation : AIR 1933 PC 183

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Whether right to appeal is available if special statute under which right is claimed which does not confer right to appeal?

In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

Hon'ble Judges/Coram:

Goutam Bhaduri, J.

Citation: AIR 2018(NOC) 927 Chh

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Whether validity of trial and conviction of accused will be affected by any irregularity in his arrest?

The contention of the appellant was that his arrest, having been effected in Jind territory by a British Indian officer, was illegal and that the illegality of his arrest vitiated the whole subsequent proceedings. Their Lordships reject this contention. They assume that the arrest was open to objection as an infringement of the sovereignty of Jind, although the Jind authorities, so far from resenting what had been done or regarding their rights as having been flouted, co-operated most readily with the British Indian police in bringing the appellant to justice. There was no suggestion of anything like kidnapping. In their Lordships' view, the validity of the trial and conviction of the appellant was not affected by any irregularity in his arrest.

BEFORE THE PRIVY COUNCIL

Decided On: 26.01.1944

Parbhu Vs. Emperor

Hon'ble Judges/Coram:

Macmillan, Wright, Porter, Clauson and George Rankin, JJ.

Citation: AIR 1944 PC 73

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Whether champerty and maintenance is legal in India?

In India, of course, champerty or maintenance is not illegal. In Glegg v Bromley [1912] 3 K. B, 474. Mr. Justice Parker, as he then was, stated the law upon this point, as was his custom, with great clearness and precision. In that case, according to the head note, one Mrs. G. was plaintiff in an action against one H. for false representation. She was also plaintiff in an action for slander against Lady Bromley She was at the time greatly indebted to her husband, and she executed in his favour a deed of assignment whereby, after reciting that he had requested her to give him further security, which she had agreed to do, she assigned to him, "all that the interest sum...or premises to which she is or may become entitled...under or by virtue of any verdict, compromise or agreement which she may obtain or to which she may become party in or consequent upon the said action (i e. Glegg v. Bromley) or otherwise howsoever, under or by reason of the same to hold the same...subject to redemption on payment of all moneys due to him." Both actions proceeded, that against H. resulting in a verdict for the defendant, with cost amounting to £218. That against Lady Bromley resulted in a verdict for the plaintiff Mrs. G. for £200 with costs. H. then took garnishee proceedings against Lady Bromley to attach this sum of £200, and Mrs. G.'s husband also claimed it under his assignment. It was held that the assignment was not an assignment of a mere expectancy or of a cause of action, but was an assignment of property that is of the fruit of an action as and when recovered, and that it was consequently not void under 13 Eliz. c.5. There is no distinction, and can he no distinction on this point between the fruits of an action which the plaintiff gets by compromise and the fruits he would receive by a decree or verdict in his favour At page 490 Mr. Justice Parker is reported to have said:--.

It is to be observed that an equitable assignee of a chose in action, whether it is legal or equitable, could institute proceedings and maintain proceedings for its recovery. The question was whether the subject-matter of the assign-ment was, in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity. With regard to the assignments of future property, they stand, I think, on a totally different footing. Nothing passes, even in equity, until the property comes into present existence. Only when this happens can the assignment attach and an interest pass... Even a solicitor who is conducting an action or suit may take a mortgage on the fruits for the purpose of securing the payment of his proper costs. He may not be able to purchase an interest in such fruits because of the doctrine of champerty.

36. In their Lordships' view the agreement embodied in paragraph 12 of the agreement of August 14, 1907, is an agreement by the plaintiffs to assign to others part of the fruits they may acquire in an action at law and therefore perfectly legal. Besides, if even the money given to the plaintiffs in the compromise was a non-existing thing at the date of the agreement and only came into existence at the date of the compromise decrees, the agreement of August 14, 1907, which is still in existence, not terminated as the High Court erroneously supposes, attaches to the things so coming into existence subsequently.

BEFORE THE PRIVY COUNCIL

Decided On: 05.05.1924

Vatsavaya Venkata Subhadrayamma Vs.  Poosapati Venkatapati

Hon'ble Judges/Coram:

Atkinson, Louis Addin Kershaw, Blanesburgh, John Edge and Ameer Ali, JJ.

 Citation : AIR 1924 PC 162

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Whether issue involved in suit should be decided on basis of statements of parties or their relation to estate?

Their Lordships regret that they are unable to accept the interpretation placed by the High Court upon the statements, and they agree with the trial Judge that the statements made by the two brothers in 1876 were false. It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. The vital factor in a case of this kind is the nature of the interest which the members of the family have in the estate. As stated, if there has been a division of their right to, or severance of their interest in the estate, they must be held to be separate in status, though there has been no physical division of the property, and though there may be no separation in food or dwelling: Amritrao v. Mukundrao 1919 P.C. 91. If, on the other hand, there has been no such division of right or severance of interest, they continue to be joint in estate, and mere cesser of commensality would not make them separate in estate, as a member may become separate in food or residence for his convenience. A division of right or a severance of the joint status may result, not only from an agreement between the parties, but from any act or transaction which has the effect of defining their shares in the estate, though it may not partition the estate. If a document clearly shows a division of right, its legal construction and effect cannot be controlled or altered by evidence of the subsequent conduct of the parties: Balkishen Das v. Ram Narain Sahu (1903) 30 Cal. 738.

BEFORE THE PRIVY COUNCIL

Decided On: 17.07.1936

Alluri Venkatapathi Raju and Anr. Vs.  Dantuluri Venkatanarasimha Raju and Ors.

Hon'ble Judges/Coram:

Roche, Shadi Lal and George Rankin, JJ.

Citation: AIR 1936 PC 264

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Whether admission in pleading can be accepted in part?

If an admission in pleading is made subject to a condition, it must either be accepted subject to the condition or not accepted at all.

It is permissible for a tribunal to accept part and reject the rest of any witness testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all. 

BEFORE THE PRIVY COUNCIL

Decided On: 25.02.1915

 Motabhoy Mulla Essabhoy Vs. Mulji Haridas

Hon'ble Judges/Coram:

Dunedin, Louis Addin Kershaw, George Farwell, John Edge and Ameer Ali, JJ.

Citation: AIR 1915 PC 2

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Whether a person can be held bound by recitals of deed even if he has signed said deed without reading it?

Their Lordships wish to add that in a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it. 

BEFORE THE PRIVY COUNCIL

Privy Council Appeal No. 16 of 1937

Decided On: 13.01.1938

Martin Cashin and others  Vs. Peter J. Cashin

Hon'ble Judges/Coram:

Lords Atkin, Thankerton, Bussell of Killowen, Wright and Maugham

Citation:AIR 1938 Privy Council 103

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Privy council :Landmark judgment on burden of proof and onus of proof

What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as "shifting." The burden of proof on the pleadings never shifts, it always remains constant see Pickup v. Thames Insurance Co. (1878) 3 Q.B.D. 594. These two aspects of the burden of proof are embodied in Sections 101 and 102 respectively of the Indian Evidence Act. Section 101 states: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

26. When a person is bound to prove the existence of any "fact, it is said that the burden of proof lies on that person." Section 102 states: "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." This section shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When, after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.

27. How the above rules relating to onus operate in a case is thus described by Lord Dunedin in Robins v. National Trust Co. Ld. (1927) A.C. 515, 520: "Their Lordships cannot help thinking that the appellant takes rather a wrong view of what is truly the function of the question of onus in such cases. Onus is always on a person who asserts a proposition or fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion, because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Now, in conducting any inquiry, the determining tribunal, be it judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered."

BEFORE THE PRIVY COUNCIL

Decided On: 14.06.1949

Kumbham Lakshmanna and Ors. Vs. Tangirala Venkateswarlu and Ors.

Hon'ble Judges/Coram:

Porter, Mac Dermott, Madhavan Nair and John Beaumont, JJ.

Citation: AIR (36) 1 949 Privy Council 278

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How to ascertain damages in case of chain contracts?

By virtue of a clause in one of the earlier documents, which will be mentioned shortly and which is in conformity with the usual practice in produce markets where there is a chain of sellers and buyers, the damages as ascertained between the last buyer and seller would probably without further litigation form the measure of the damages to be recovered all along the chain.

Chain contract;Where there is a chain of sellers and buyers,the damages as ascertained between the last buyer and seller will ordinarily form measure of damages to be recorded all along the chain
BEFORE THE PRIVY COUNCIL

Decided On: 24.03.1925

Appellants: Hope Prudhomme and Company
Vs.
Respondent: Hamel and Horley, Ltd.

Corum;Phillimore, J.

Citation: AIR1925PC161

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Whether there can be valid registration of document by power of attorney when principal is dead?

 In the interval between the execution of the completed deed and its presentation to the registrar the munshi died. The legal question now to be considered turns on this last fact. The narrative, however, may be completed by mentioning that the registrar accepted the deed and registered it, recording in writing that the man who had executed it and whose attorney presented it for registration was dead.

 It was not attempted on the part of the appellant to justify the registration of the deed, as regularly done in accordance with the Act. The departure from the Act is indeed palpable, and the only question is whether it invalidates the registration. The Act, by Section 32, enacts that every document to be registered under it, whether such registration be compulsory (as in the present case) or optional (as in the case of other classes of instruments), shall be presented by some person executing or claiming under the same, or by the representative or assign of such person, or by the agent of such person, representative or assign, duly authorized by power of attorney. Now the case in hand is that of a person who, when he presented the deed for registration, as he Bays he did, on November 4, 1889, stood in no other relation to the deed than that, before the death of the person executing it, he had held his power of attorney. It is perfectly plain, not merely from the general law, but from the terms of this Section 32 itself, that after the man's death the only attorney who would have any locus standi would have been the attorney of the representative or assign of the deceased. It has been suggested, however, that the error of the registrar was a defect in his procedure only, and accordingly, under Section 87, does not invalidate the act of registration. To their Lordships the error appears to be of a more radical nature. When the terms of Section 32 are considered with due regard to the nature of registration of deeds, it is clear that the power and jurisdiction of the registrar only come into play when he is invoked by some person having a direct relation to the deed. It is for those persons to consider whether they will or will not give to the deed the efficacy conferred by registration. The registrar could not be held to exercise the jurisdiction conferred on him, if, hearing of the execution of a deed, he got possession of it and registered it; and the same objection applies to his proceeding at the instigation of a third party, who might be a busybody. Now, it seems to their Lordships that when the deed was presented on November 4, 1889, it was presented by a volunteer, and the registrar's minute shows that he proceeded to register at the request of one whom he knew to derive his power of attorney from a dead man. Nor is it possible to treat this action of the registrar as compliance with the request made on October 16, 1889, when the principal was alive. Not only had the deed in fact been executed afresh on October 24, but it was presented afresh on November 4, as the minute itself bears; and, even assuming the continuity of the proceeding, the death of the applicant brought it to an end. The registrar, indeed, did not merely disregard Section 32, for he proceeded to accept the admission of the alleged attorney as a good admission of the execution of the deed, although Section 34 requires in the case of a decease the admission of the representative or assign.

Their Lordships were referred to two decisions of this Committee in support of the appellants' contention. Neither case gives any countenance to the view that the absence of any party legally entitled to present a deed for registration is a defect in procedure falling under Section 87. In both those cases the registrar was throughout moved by a person having title, and was exercising his jurisdiction. The difference is, in their Lordships' judgment, vital. They therefore hold the registration of this deed to have been illegal.
BEFORE THE PRIVY COUNCIL

Decided On: 08.12.1900

Appellants: Mujibunnissa and Ors.
Vs.
Respondent: Abdul Rahim and Abdul Aziz

 Citation: 1912(14)BOMLR295, 14Ind. Cas.988

Robertson, J.

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Whether contract will be become void if it was entered due to economic duress?

Traditionally, duress rendered a contract voidable only if it was physical duress (which involved a threat to the person or belongings of an individual), but following the decision of the Privy Council in Pao On v Lau Yiu Long, the concept of economic duress was also recognised. It is now fairly settled law that there are two essential ingredients for voiding a contract on grounds of economic duress: (a) there should be illegitimate pressure, and (b) the pressure should be a significant cause for the claimant entering into the contract (Per Mance J, Huyton v Cremer). However, each of these requirements gives rise to a controversial issue:Adam Opel v Mitras Automotive) holding 'no reasonable alternative' to be a third requirement, and several academics dismissing it as a unnecessary third wheel. However, it was with the first of the issues that the High Court in Progress Bulk Carriers Limited v Tube City IMS LLC [2012] EWHC 273 (Comm) grappled, making some interesting observations.
The facts of the case involved the proposed charter of a vessel to carry goods from the Mississipi River to China. The identity of the vessel (the "Cenk K") and the time of delivery, were significant elements of the contract between the charterer (the Claimant) and the recipient of the goods in China (the Recipient). This fact was communicated by the Claimant to the owner of the vessel proposed to be chartered (the Respondent). A week before Cenk K was to be provided, the Respondent chartered it to another charterer, without the Claimant's approval. Instead, on the date of delivery to the Claimant, the Respondent offered a substitute vessel. The Claimant objected, and stated that any substitution would be subject to approval by the Recipient. Although the act of chartering Cenk K to another party without the Claimant's consent was a repudiatory breach of the charter party, the Claimant did not terminate the charter party. Two days later, the Respondent admitted it had made a mistake, and that it would compensate the Claimant for any losses suffered due to the substitution. Based on this assurance, the Claimant did not look for other alternatives. The Claimants then communicated the revised timetable and the new vessel to the Recipient, which accepted the changes subject to a reduction in the purchase price of $6 per metric ton. This was above the market price of the commodities at that time, and hence was accepted by the charterer as a reasonable discount. However, when this was communicated to the Respondent, it refused to grant the charterer a discount of more than a $2 per metric ton. Given the lack of alternatives, the Claimant informed the Respondent that it would accept the discount, but would reserve its rights in respect of claims for damages arising out of the owner's breach of the charter party. In response, the Respondent made the Claimant a 'take it or leave it' offer, where the Claimant had the option between (a) not having any discount from the Respondent, or (b) having a $2 per metric ton discount, contingent on the waiver of all claims for loss or damages arising out of the substitution of the vessel. Given the situation, the Claimant accepted option (b) under protest.
Against this backdrop, the issue before the Court was whether this waiver could be challenged on the ground of economic duress. There were no issues of causation, and the arbitral tribunal below had found that the Claimant had no reasonable alternative to entering grating the waiver. Hence, the only question was whether the 'take it or leave it' offer amounted to illegitimate pressure.
For these purposes, the Court relied on the Court of Appeal's decision in CTN, Cash and Carry v Gallaher. In this case, a threat to refuse to enter into future contracts was held to be legitimate because (i) the defendant was not obliged to enter into any future contracts, (ii) the defendant bona fide believed that it was entitled to the amount it was claiming and (iii) the parties were in a purely commercial relationship. Against this backdrop, Steyn LJ in CTN had held there that the key question is not whether the conduct was 'lawful', but whether it was 'morally or socially acceptable'. He went on to observe that it would only be in rare cases that the Court would conclude that in a commercial relationship, a lawful act would amount to economic duress.
On the facts here, the Court concluded that the breach of the charter party by the owner, combined with the subsequent failure to live up to the assurance given to the charterer was sufficient to make the pressure illegitimate. Thus, although the 'take it or leave it' offer was legal, and although the parties were in a purely commercial relationship, the defendant had acted in bad faith. Reliance was placed on the Privy Council's decision in Borrelli v Ting for the proposition that an illegality in the past, which coloured the subsequent pressure, could render the pressure illegitimate. Hence, since the waiver of claims under the charter party was procured by the application of illegitimate pressure, the waiver was held to be voidable.
Although the result appears to be right, it is important to identify the real basis of the decision. The reliance on Borrelli, though persuasive, is made suspect by the fact that the impugned settlement agreement in that case required the defendant to do that which he was anyway statutorily obliged to do. On the other hand, on the facts here, the waiver merely imposed a new contractual obligation on the Respondent, to replace an earlier contractual obligation it had breached. Hence, although the similarities with Borrelli should not be understated, it is important to note that the existence of a purely commercial relationship, and the absence of a legal obligation to fulfil the assurance made following the breach, amounts to an extension of Borrelli.
The decision reiterates the highly fact-specific nature of any economic duress claim, with findings that the Respondent had 'lulled the charterer into a false sense of security' and 'driven the charterer into a corner from which it could not escape' playing an important role. However, in terms of legal principle, the notable addition is that when there is an unjustified past illegality/breach of contract which colours or leads to subsequent pressure, any subsequent unconscionable conduct by the defendant aggravating that pressure (although not amounting to the breach of a legal obligation), can be sufficient to render the pressure.

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How to appreciate evidence of Child Witness?

Precautions which must be borne in mind in evaluating the evidence of a child-witness 

In Bhojraj v. Sitaram, AIR 1936 PC 60, it was pointed out that 

"The real tests are how consistent the story is with itself, how-it-stands the test of cross-examination and how far it fits in with the rest of the evidence and circumstances of the case."

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