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Tuesday, March 30, 2010

Amar Singh v. Amarjit Singh
2009(3) LAW HERALD (P&H) 2259
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
R.S.A. No.4392 of 2002 (O.&M.)
Amar Singh & Anr.
v.
Amarjit Singh & Ors.
{Decided on 12/05/2009}
For the Appellant: Mr. K.S. Dhillon, Advocate.
For the Respondent Nos.1 to 3 & 5: Mr. Gorakh Nath, Advocate.
For the Respondent No.4: Ex parte. Service upon respondent nos.6 to 8 was dispensed with being proforma respondents.
IMPORTANT POINT
Agreement to sell--Once the agreements to sell were admitted by the vendors themselves, the appellants were not required to prove anything further as it was the best form of evidence.
Denial of fact--If an admission is made by a party, then it is in the discretion of the Court to warrant any further proof if it thinks it to be necessary, but in the absence of it, the admission is necessary proof of the existence of a fact
(A) Civil Procedure Code, 1908, O.8, R.3, 4 & 5--Denial of fact--In the wake of specific admission made by a party whether in the suit in question or in the earlier litigation, the same can be accepted to be a valid proof of an existing fact and it need not to be proved further if the Court so concludes. (P.25)
(B) Specific Relief Act,1963--Agreement to sell--The vendors were proceeded ex parte while respondent no.5 contested the claim of the appellants and again admitted the agreements to sell in question. What is essential to notice also is that the vendors never denied the agreements to sell even in the proceedings which were initiated at the behest of respondent no.5 in which the appellants and proforma respondents were also contesting defendants--Once the agreements to sell were admitted by the vendors themselves, the appellants were not required to prove anything further and the Courts below should have accepted the same straight-away as it was the best form of evidence. (P.24)
(C) Civil Procedure Code, 1908, O.8, R. 3, 4 & 5--Denial of fact--It is not sufficient for a defendant to deny generally the grounds raised in the plaint nor any evasive denial is sufficient. Rather, they go on to say that every denial should be specific and if not being so, then by necessary implication, it has to be taken to be admitted and in such an eventuality, the Court may, in its discretion, require any fact to be proved otherwise than by admission. (P.20)
(D) Civil Procedure Code, 1908, O.8, R. 3, 4 and 5--Denial of fact--If an admission is made by a party, then it is in the discretion of the Court to warrant any further proof if it thinks it to be necessary, but in the absence of it, the admission is necessary proof of the existence of a fact. (P. 20)
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Suresh v. Smt. Mariyan
2009(3) LAW HERALD (P&H) 2266
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Arvind Kumar
Regular Second Appeal No. 2104 of 2008
Suresh
v.
Smt. Mariyan & Ors.
{Decided on 12/05/2009}
For the Appellant: Mr. Anil Malik, Advocate.
For the Respondent No.1: Mr. K.S. Dhaliwal, Advocate.
Hindu Succession Act, 1956, S.14--Civil Procedure Code, 1908, O.23, R.3-A--Pre-existing Right--Plaintiff is sister of father of the appellant. The theory of family settlement discarded by observing that since a Hindu woman becomes absolute owner of the property possessed by her by virtue of Section 14 of the Hindu Succession Act, 1956, therefore, no person can have pre-existing right therein and once the defendants had no pre-existing right in the property held by the plaintiff, there was no question of any legal and valid family settlement between the parties--Defendants have no right to retain the possession of the suit land on the basis of judgment and decree, which was a nullity. (P. 8)
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Shakuntala v. Rajesh
2009(3) LAW HERALD (P&H) 2268
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
FAO No.1572 of 2006
Shakuntala
v.
Rajesh
{Decided on 25/02/2009}
For the Appellant: Mr. M.R. Verma, Advocate.
For the Respondent: Mr. Sudhanshu Makkar, Advocate.
IMPORTANT POINT
Custody of Child--Remarriage of mother of a minor is not a disqualification; where the girl child is at advert of her puberty
(A) Guardian and Wards Act, 1890, S.9(1)--Custody of Child--Jurisdiction--Petition should be filed in the court is whose jurisdiction minor ordinarily resides--Provisions is mandatory. (P.10 and 12)
(B) Guardian and Wards Act, 1890, S.6--Custody of Child--Minor of 8-9 years and is at advert of her puberty--Remarriage of mother of a minor is not a disqualification: where the girl child is at advert of her puberty--The best guardian considered by the Court in this regard is the mother--If the child is 9 years of age and is at the advert of her puberty then at that stage she requires more care and attention of the mother.
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