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Pre-emptor has right to pre-empt on three dates

The issue to be decided is a legal issue which stands in a narrow compass. Before dealing with the issue itself, it would be pertinent to refer to the Constitution Bench judgment of this Court in the case of Shyam Sunder and others v. Ram Kumar and another, wherein this Court considered the effect of the amendment made to the 1913 Act. This Court held that if section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. After discussing the entire law, the Constitution Bench culled out the following legal principles:

“10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first Court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first Court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.”

Hon’ble M.B. Lokur and Deepak Gupta, JJ., have held that in view of the decision of the Constitution Bench, it is not necessary to refer to various other judgments cited before us. A perusal of the principles laid down by the Constitution Bench clearly indicates that the pre-emptor should possess the right to pre-empt on three dates:

(i) The date of sale;
(ii) The date of filing of the suit; and
(iii) The date of passing of the decree by the Court of first instance only.

As far as the first two conditions are concerned, there is no dispute that the appellant possesses the right of pre-emption on the date of sale as also on the date of filing of the suit since he was a co-sharer in the land in question. It is also not disputed that on 10th April, 1990 when the exparte decree was passed in favour of the appellant he had a valid legal right of pre-emption in his favour.

Vijay Singh v. Shanti Devi, 2017 (178) AIC 174 (SC)

Court in case of custody of child, concerned with their welfare

it is an unfortunate case where the parties, who are wife and husband, are having a bitter and acrimonious fight over the custody of their children. Such custody battles are always regrettable, not only for the spouses who resort to this kind of litigation, which is the offshoot of matrimonial discord and results in their separation from each other, but also for their child/children who become the subject-matter of this kind of dispute. Failure of marriage generally leads to disputes of varied nature, either in the form of divorce or enforcement of conjugal rights or maintenance etc. and even criminal cases in the form of proceedings under section 498-A of the Code of Criminal Procedure, 1973 and so on. However, in those cases where their togetherness as spouses had resulted in procreation of children, the war is extended by laying respective claims on the custody of those children as well. These minor children, for their proper upbringing, need the company of both the parents—mother as well as the father, for financial reasons, security reasons, psychological reasons, etc. They need the love of both their parents. Not only separation of their parents from each other deprives these children 24/7 company of both the parents, when it results in legal battle of custody in the Courts, the situation becomes more traumatic for these children because of various obvious reasons. That is why such cases which seriously impact these children are the most unfortunate.

Hon’ble A.K. Sikri and Ashok Bhushan, JJ., have held that during the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother. They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father.

In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in the mid-term of the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the welfare principle the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.

It is further held that, in view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasized that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view.

Purvi Mukesh Gada v. Mukesh Popatlal Gada, 2017 (178) AIC 180 (SC).

Plaintiff can file fresh suit for mesne profits

Hon’ble R.K. Agrawal and Mrs. R. Banumathi, JJ., have held that from a reading of the provisions of Order II, Rule 2 and Rule 4 of the Code and also the principles laid down in the aforementioned cases, it is clear that under Order II, Rule 2 read with Rule 4, the plaintiff can also claim mesne profits or arrears or rent in a suit filed for ejectment of the tenant. The plaintiff can further file a fresh suit for claiming mesne profits or arrears of rent for the period subsequent to the decree passed in the earlier suit having become final. But in a case where the plaintiff has claimed mesne profits or arrears of rent in a suit filed for ejectment of the tenant and has relinquished his rights vis-à-vis mesne profits or arrears of rent in the suit proceedings itself, the provisions of Order II, Rule 2 will come into play and in comparison to the second suit for mesne profits or arrears of rent till the decree, the earlier suit will attain finality.

Raptakos, Brett & Co. Ltd. v. Ganesh Property, 2017 (178) AIC 192 (SC).

Court may order to remove name from Advocate on Record

Hon’ble J.S. Khehar, C.J.I., Dr. D.Y. Chanderachud and S.K. Kaul, JJ., have held that the privilege of being an Advocates-on-Record under the Rules has clearly been abused by the contemnor. The conduct was not becoming of an Advocate much less an Advocate-on-Record in the Supreme Court.

The aforesaid Rule makes it clear, that whether on the complaint of any person or otherwise, in case of misconduct or a conduct unbecoming of an Advocate-on-Record, the Court may make an order removing his name from the register of Advocate-on-Record permanently, or for a specified period. We are not referring to the right to practice as an Advocate, and the name entered on the rolls of any State Bar Council, which is a necessary requirement, before a person takes the examination of Advocate-on-Record. The present case is clearly one where this Court is of the opinion that the conduct of the contemnor is unbecoming of an Advocate-on-Record. The pre-requisites of the proviso are met, by the reason of the Bench being constituted itself by the Chief Justice, and the contemnor being aware of the far more serious consequences, which could have flowed to him. The learned Senior Counsel representing the petitioner has thrown him at the mercy of the Court. We have substantively accepted the request but lesser consequences have been imposed on the contemnor.

Re. Mohit Chaudhary, Advocate, 2017 (178) AIC 118 (SC).

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