Tangerine Electronics Systems Pvt. Ltd. v. Indian Chemicals, Mumbai 2004 (1) RCR (Rent) 652 The word "property" has nowhere been defined under the Transfer of Property Act. The Civil Procedure Code also does not define the term "property". The term 'property' possesses a variety of different applications having different degrees and includes, in its widest sense, all a person's legal rights, of whatever description. In its ordinary and general meaning, the property is not only the thing which is subject matter of ownership but also includes dominium or the right of ownership or partial ownership and it indicates and describes every possible interest which a party can have, and will include any benefit that a person is entitled to take out of the property of another. A lease, in the generic sense, is the form of encumbrance which consists in a right to the possession and use of the property owned by some other person. From this definition of word "lease", it is clear that lease creates an interest in the property and unless there is a transfer of such interest, there can be no lease. The creation of an interest in the immovable property is a test to determine whether the transaction is lease. Thus, it is a transfer of right to enjoy the property leased and by way of lease, the lessee gets the tight to remain in occupation of the premises on payment of rent. It cannot be seriously disputed that tenant's right to remain in occupation of the non-residential tenanted premises is a property.31. It would be seen from Section 60 that all saleable property which belongs to the judgment-debtor may be attached and sold in execution of the decree against him subject to Proviso to sub-Section (1). Similarly, the saleable property over which the judgment-debtor has a disposing power which he may exercise for his own benefits may also be attached and sold. Property may not belong to the judgment-debtor and yet he may have a disposing power over it exercisable for his own benefit. In such cases, the property is liable to attachment and sale subject to proviso to sub-Section (1). From what we have discussed above, it is clear that the tenancy right of the non-residential premises is a property and is saleable within the meaning of Section 60 of Civil Procedure Code. There was no bar whatsoever under sub- Section (1) of Section 15 to attach and sell the leasehold interest of a lessee in the premises leased out for non-residential purpose. that the tenant's right to remain in occupation of the non-residential premises governed by the Maharashtra Rent Control Act, 1999 is a property; such property is saleable and the tenant has disposing power over the interest of tenancy for his benefit and in view thereof, we hold that the interest of the tenant of non-residential premises to which the Maharashtra Rent Control Act, 1999 applies is attachable and saleable in execution of the decree against the tenant.

Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, 1975(2) SCC 105, the Supreme Court was seized with the question of law: Is a flat in a tenant co- partnership housing society under the Maharashtra Cooperative Societies Act, 1960 liable to attachment and sale in execution of a decree against a member in whose favour or for whose benefit the same has been allotted by the society. The Supreme Court considered the said question in the light of the provisions of Section 60 of the Civil Procedure Code (CPC), the provisions of the Maharashtra Co-operative Societies Act, 1960 and also the bye-laws of the society and held YES.

Mrs. Sunita Jagmohan Verma v. Jagmohan Verma, in AIR 1985 Delhi 1 Court has held that the issue of a Commission under Order 26, Rule 4, CPC in a case where the personal attendance of a witness cannot be enforced because of the restriction imposed by Order 16, Rule 19, although discretionary with the Court, should ordinarily be allowed as a matter of course. It was further held that such powers should be exercised for the simple reason that a party cannot be punished merely because it feels helpless in procuring the attendance of a witness and the Court too is powerless to order such a witness to appear in person. It is stated that the Court, of course, must be satisfied about the compelling necessity to examine such a witness. In the said decision this Court further held that the object of the proviso to Order 16, Rule 19, CPC clearly is that if the witness is residing at a place which is connected with the place of the Court-house by air, the Court may, instead of issuing a Commission, direct in appropriate cases that summons be issued for attendance of the witness in person on his being paid fare by air. The Court, however, held that such an order cannot be passed mechanically in each and every case and before resorting to this provision the Court must make sure that the witness (applicant) is affluent enough to afford payment of fare by air otherwise it may result in undue hardship and even miscarriage of justice in many a case. The Court also held that the demenanour of a witness is quite an important factor in appraising the evidence of a witness, especially when a witness is deposing to facts from his personal knowledge but it is not so important as to take away the right of a party to issue of a Commission in deserving cases where the testimony of the witness is very material but he is not under the control of the party wanting to examine him and his personal attendance cannot be enforced by coercive process of law. It was also held that the Court must consider all relevant aspects of the matter before it exercises its discretion one way or the other so as to advance the cause of justice and fair play.

Filmistan Private Ltd., M/s. Bombay v. M/s. Bhagwandas Santprakash, AIR 1971 (SC) 61 Admittedly the witnesses sought to be examined at Kabul are relevant witnesses. All of them are living outside the jurisdiction of the Court and hence they are not amenable to the process of the Court. The fact that the witnesses examined on commission cannot be effectively cross-examined or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the learned trial Judge. It was further urged that as there is no reciprocal agreement between our Government and the Government of Afghanistan, the witnesses cannot be lawfully examined in Kabul. Section 77 of the Code of Civil Procedure read with Section 75 empowers the Court to issue a letter of request to any person other than a Court to examine witnesses residing at any place not within India. This power of the Court is not subject to any reciprocal agreement between the Governments.

Sunil Enterprises v. SBI Commercial and International Bank, AIR 1998 (SC) 2317 The Bills of Exchange were accepted by the defendants even though they had already discharged earlier Bills of Exchange as and when they were due and the bank had continued to pay out such large amounts of Bills of Exchange accepted by the party who is already a defaulter. It is also contended that some of the Bills of Exchange were mere secondary documents and, therefore, these matters require examination. It cannot be said that the defence raised by the appellants is totally defenceless or moonshine or illusory as noticed earlier in the course of this order.

Santosh Kumar v. Mool Singh, (1958) S.C.R. 1211 : (A.I.R. 1958 S.C. 321); Milkiram (India) Private Ltd. v. Chaman Lal Bros., A.I.R. 1965 S.C. 1698 and Michalec Eng. & Mfg. v. Basic Equipment Corporation, A.I.R. 1977 S.C. 580 The Propositions laid down in these decisions may be summed up as follows:- (a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at the time of granting leave to defend - the conditions being as to time of trial or more of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff by imposing the condition that the amount claimed should be paid into Court or otherwise secured.

Mookka Kone v. Ammakutti Ammal AIR 1928 Mad 299 (FB), it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom.

Mayne's Hindu Law and Usage, Twelfth Edition, page 329 Custom must be ancient, certain and reasonable as is generally said. It will be noticed that in the definition in Cl. (a) of Section 3 of the Act, the expression 'ancient' is not used, but what is intended is observance of custom or usage for a long time. The English rule that 'a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary' has not been strictly applied to Indian conditions. All that is necessary to prove is that the custom or usage has been acted upon in practice for such a long period and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group or family. Certainty and reasonableness are indispensable elements of the rule. For determination of the question whether there is a valid custom or not, it has been emphasized that it must not be opposed to public policy. I shall deal with the question of public policy later on. The origin of custom of adoption assumes great importance. The origin of custom of adoption is lost in antiquity. The ancient Hindu Law recognized twelve kinds of sons of whom five were adopted. The five kinds of adopted sons in early times must have been of very secondary importance, for, on the whole, they were, relegated to an inferior rank in the order of sons. Out of the five kinds of adopted sons, only two survive today; namely, the. Dattaka form prevalent throughout India and the Kritrima form confined to Mithila and adjoining districts. The primary object of adoption was to gratify the means of the ancestors' by annual offerings and therefore it was considered necessary that the offerer should be as much as possible a reflection of a real descendant and had to look as much like a real son as possible and certainly not be one who would never have been a son. Therefore, the body of rules was evolved out of a phrase of Saunaka that he must be 'the reflection of a son'. The restrictions flowing from this maxim had the effect of eliminating most of the forms of adoption. (See Hindu Law by S. V. Gupte, Third Edition at pages 899-906). The whole law of Dattaka adoption is evolved from two important texts and a metaphor. The texts are of Manu and Vasistha, and the metaphor that of Saunaka. Manu provided for the identity of an adopted son with the family into which he was adopted. (See : Manu.Chapter IX, pages 141-142, as translated by Sir W. Jones). The object of an adoption is mixed, being religious and secular. According to Mayne, the recognition of the institution of adoption in early times had been more due to secular reasons than to any religious necessity, and the religious motive was only secondary; but although the secular motive was dominant, the religious motive was deniable. The religious motive for adoption never altogether excluded the secular motive.

Sir H.S. Gour's Hindu Code Volume 1, Fifth Edition. "Custom defined. - Custom is an established practice at variance with the general law. Nature of custom. - A custom varying the general law may be a general, local, tribal or family custom. Explanation 1. - A general customs includes a custom common to any considerable class of persons. Explanation 2. - A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom cannot override express law - (1) Custom has the effect of modifying the general personal law, but it does not override the statute law, unless it is expressly saved by it. (2) such custom must be ancient, uniform, certain, peaceable, continuous and compulsory. Invalid Custom - No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. Pleading and proof of custom - (1) He who relies upon custom varying the general law must plead and prove it. (2) Custom must be established by clear and unambiguous evidence."

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, AIR 2003 (SC) 4548 Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission v. The State of Madras & Anr., AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes :- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as `an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sough to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court. Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced. 27. Whether a civil or a criminal case, the anvil for testing of `proved', `disproved' and `not proved', as defined in Section 3 of the Indian Evidence Act, 1872, is one and the same. A fact is said to been `proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evalution of the result drawn by applicability of the rule, which makes the difference. "The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says : There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S. 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition, pp. 58-59). In the words of Denning LJ (Bater v. B, 1950, 2 All ER 458, 459) "It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, LJ said "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others." (Hornal v. Neuberger P. Ltd. 1956 3 All ER 970, 977).

Raghavamma & Anr. v. Chenchamma & Anr., AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof : burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title.

P.C. Purushothama Reddiar v. S. Perumal 1972 (2) SCR 646 In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: "Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility

M/s R.N. Jadi & Brothers v. Subhashchandra, 2007(6) SCC 420 Maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. I am conscious that I was a party to the decision in Kailash v. Nankhu and others (2005(4) SCC 480) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nankhu and others. (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned.

Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(3) RCR (Civil) 530 As regards Order VIII Rule 1 Committee's report is as follows: "The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.

Ms. Ins. Malhotra Vs A. Kriplani & Ors. IN THE SUPREME COURT OF INDIA CIVIL APPEAL NO. 1386 OF 2001 A three Judge Bench of this Court in the case of Jacob Mathew v. State of Punjab and Another [(2005) 6 SSC 1] had the occasion to deal with and decide the liability of doctors in a death case arising due to criminal medical negligence for an offence under Section 304-A of the Indian Penal Code, 1860. In the case of professional negligence, it was observed that in the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or as skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, the professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but That cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. [Paras 18 and 48(3)] In the case of medical negligence, it has been held that the subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator, i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. The classical statement of law in Bolam's case, (1957) 2 AII ER 118, at p. 121 D-F [set out in para 19 herein] has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is, the time of the incident) on which it is suggested as should have been used. Thirdly, when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. [Paras 48 (2), 48 (4), 19 and 24] Again, it has been held that indiscriminate prosecution of medical professionals for criminal medical negligence is counter-productive and does no service or good to the society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason--whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society. [See paras 28, 29 and 47] In the case of State of Punjab v. Shiv Ram and Others [2005] 7 SCC 1, a three Judge Bench of this Court while dealing with the case of medical negligence by the doctor in conducting sterilisation operations, reiterated and reaffirmed that unless negligence of doctor is established, the primary liability cannot be fastened on the medical practitioner. In paragraph 6 of the judgment it is said: "Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) popularly known as Bolam's test, in its applicability to India".

Martin F. D'Souza v. Mohd. Ishfaq decided on 17.02.2009. "We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case otherwise the policemen will themselves have to face legal action."

Kishori Lal v. Chaltibai, 1959 AIR (SC) 504 From a reading of the provisions of Section 52 of the Transfer of Property Act, it is clear that any right in a suit or proceeding with regard to immovable property, which is directly and specifically in question, cannot be transferred in any manner whatsoever by either party to the suit inasmuch as it would affect the right of any other party. However, such transfer can be made with prior sanction of the Court, subject to terms as it may impose, and the same would be subject to the conclusion of the suit. From a perusal of the plaint, it is clear that the plaintiff has pleaded his readiness and willingness to perform his part of contract. However, thirty days time sought for by the plaintiff is as per clause (6) of Ex. A1 and as per the clause (1) of Ex. A1, the defendant No. 1 has to obtain Income Tax Clearance Certificate and other permissions from the authorities concerned.

K.K. Bhaskara Rao v. Naduminti Suryanarayana Murthy, 2003(6) ALD 23 (DB) wherein a Division Bench of this court, while dealing with Section 19 (b) of the Specific Relief Act, 1963, held that when there are two agreements for sale of property in favour of two different vendees, the subsequent transferee is required to establish that he has purchased bona fide for value and that he had no notice of prior agreement of sale.

K.S. Vidyanadam and others v. Vairavan, AIR 1997 SC 1751 the apex Court, while dealing with Section 20 of the Specific Relief Act (47 of 1963), held that when there was total inaction on the part of the purchaser in violation of the terms and conditions of the agreement, the delay coupled with substantial rise in the prices of properties, it would be inequitable to grant relief of specific performance to the purchaser.

Satyabrata Ghose v. Mugneeram Bangur and Co., and another AIR 1954 SC 44 The apex Court held that the obligations of the parties to a contract for sale of land are the same as in other ordinary contracts and consequently there is no conceivable reason why the doctrine of frustration should not be applicable to contracts for sale of land in India.

Abdul Khader Rowther v. P.K. Sara Bai and others, AIR 1990 SC 682, The apex Court, while dealing with Article 133 of the Constitution of India, held that a plea which was not taken in the trial Court cannot be taken in appeal for the first time.

Parakunnan Veetill Joseph's son Mathew v. Nedumbara Kuruvila's son and others, AIR 1987 SC 2328, The apex Court, while dealing with Section 20 of the Specific Relief Act (47 of 1963), held that it is the duty of the Court to see that litigation is not used as instrument of oppression to have unfair advantage to the plaintiff.

Jugraj Singh and another v. Labh Singh and others, AIR 1995 SC 945(1) Plaintiff must plead and prove that he was always ready and willing to perform his part of essential terms of the contract. The continuous readiness and willingness, at all stages, from the date of agreement till the date of hearing of the suit need not be proved. The substance of the matter, surrounding circumstances and the conduct of the plaintiff have to be taken into consideration in judging the readiness and willingness on the part of the plaintiff to perform his part of the contract.

Bishan Singh and others v. Khazan Singh and another, AIR 1958 SC 838, The apex Court, while dealing with a pre-emption suit under Section 52 of the Transfer of Property Act (Head Note-B), held thus: "It is settled law in Punjab that the rule of lis pendens is as much applicable to a suit to enforce the right of pre-emption as to any other suit. But, the rule applies only to a transfer pendente lite and it cannot affect pre-existing rights. If the sale is a transfer in recognition of a pre- existing subsisting right, it would not be affected by the doctrine as the said transfer does not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer though ostensibly made in recognition of such a right in fact created only a new right pendente lite."

CPC- Order XXXIX, XXI Rule 46 Food Corporation of India Vs. Sukh Deo Prasad CIVIL APPEAL NO.380 OF 2007 In a general sense, though every order of a court which commands or forbids is an injunction, but in its accepted legal sense, an injunction is a judicial mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing [see Howard C. Joyce - A Treatise on the Law relating to injunctions (1909) S. 1 at 2-3]. A direction to pay money either by way of final or interim order, is not considered to be an `injunction' as assumed by the courts below. If there was no prayer in the suit against FCI, obviously no interim relief could have been sought against FCI as a defendant. Even assuming that the final relief was sought against FCI also, the position is that FCI was only a `garnishee defendant' and not a `principal defendant'. The garnishee proceedings are governed by Rules 46 and 46A to 46F of Order 21 of the Code. Sub-para (1) of Rule 46 A provides that in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under Rule 46, upon the application of the attaching creditor, the court may issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due from debtor or to appear and show cause why he should not do so. Rule 46B provides that where the garnishee does not forthwith pay into court the amount due from him to the debtor and does not appear and show cause in answer to the notice, the court may order the garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against him. Rule 46C provides that where the garnishee disputes liability, the court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit. It would thus be seen that the amount due by a garnishee, if disputed has to be determined as if it was an issue in the suit and the court can appropriate order determine the extent of liability of the garnishee. In this case, there was no adjudication of the amount payable by FCI. , if a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under order 39 Rule 2A. . The power under Rule 2A should be exercised with great caution and responsibility. It is shocking that the trial court had entertained an application under Order 39 Rule 2A from a person who was not entitled to file the application, has accepted an interpretation of the order which does not flow from the order, and has created an liability where none existed.

CPC- Sec 34 C.K. Sasankan Vs The Dhanalakshmi Bank Ltd SLP (C) No. 30832 of 2008 According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that although the amount of interest from the date of filing of the suit till the date of the decree and thereafter till realisation is in the discretion of the court as is confirmed by the use of the word `may' but such discretion has to be exercised by the court properly, reasonably and on sound legal principles and not arbitrarily and while doing so the court is also to consider the parameter, scope and ambit of Section 34 of Code. we find that the rate of interest as awarded for pendente lite and future interest is exorbitant and thus we direct that pendente lite and future interest at the rate of 9% shall be paid which is found to be just, proper and reasonable.

CPC- Sec 34 Clariant International Ltd. v. Securities & Exchange Board of India, (2004) 8 SCC 524 the interest can be awarded in terms of an agreement or statutory provisions and it can also be awarded by reason of usage or trade having the force of law or on equitable considerations but the same cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefor, for which a written demand is mandatory. It was further held that in absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. It was also held that in ascertaining the rate of interest the courts of law can take judicial notice of both inflation as also fall in bank rate of interest. The bank rate of interest both for commercial purposes and other purposes has been the subject-matter of statutory provisions as also the judge-made laws

HAMA- Sec8 Brijendra Singh v. State of M.P. 2008(2) RCR (Civil) 277 (SC) Section 8 speaks of what is described as `capacity'. Section 11 which lays down the condition for a valid adoption requires that in case of adoption of a son, the mother by whom the adoption is made must not have a Hindu son or son's son or grand son by legitimate blood relationship or by adoption living at the time of adoption. It follows from the language of Section 8 read with Clauses (i) & (ii) of Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance of the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no dissolution of the marriage. Prior to the enactment of the Act also adoption of a son during the lifetime of a male issue was prohibited and the position continues to be so after the enactment of the Act. A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.

Evidence- sec 100, 101 burden of proof Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR 2003 SC 4351 The question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, Supreme Court opined :- "12...The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position..

Evidence- sec 100, 101 burden of proof Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR 2003 SC 4351 The question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, Supreme Court opined :- "12...The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position..."

CPC- Order VI R 17 Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N., AIR 2007 (SC) 806 In the written statement there is a denial that defendant No. 1 wanted to handover his seat or office to defendant No. 2, his son. The insertion proposed in draft amendments is that defendant No. 2 was appointed in 1984 as the successor of defendant No. 1. The two read together mean that though defendant No. 1 had in 1984 appointed defendant No. 2 as his successor, defendant No. 1 had no intention at present to handover the seat/office to defendant No. 2. In B.K. Narayana Pillai v. Parameswaran Pillai and Another, (2000) 1 SCC 712 wherein this Court held that delay on its own, untouched by fraud is not a ground for rejecting the application for amendment opposite party to be compensated by costs. . No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants.

CPC- Order VIII R 1 M/s R.N. Jadi & Brothers v. Subhashchandra, AIR 2007 (SC) 2571 The maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned.

CPC- Order VIII R 1 Kailash v. Nanhku, AIR 2005 (SC) 2441 Whether the time limit of 90 days as prescribed by the Proviso appended to Rule 1 of Order VIII of the CPC is mandatory or directory in nature ? Directory. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

Procedure Law Sangram Singh v. Election Tribunal, Kotah & Anr., (1955)2 SCR 1, (i) A code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. (ii) There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. (iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant's defence unless there be an express provision to the contrary.

Trial Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370, the narrow and wider sense in which the word 'trial' is used came up for consideration of the Court. In its narrow or limited sense, 'trial' means the final hearing of the petition consisting of examination of witnesses, filing documents and addressing arguments. In its wider sense, the word 'trial' indicates the entire proceeding from the time when the petition comes before the court until the pronouncement of decision.

Partnership Commissioner of Income Tax. West Bengal, Calcutta. v. Juggilal Kamalapat, AIR 1967 (SC) 401 The Deed of Relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partnership firm in favour of the Kamala Town Trust, and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to he invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, ILR 44 Mad 196. A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole.

Partnership Ajudhia Pershad Ram Pershad v. Sham Sundar, ILR (1947) as Lah 417 ), the interest in a partnership of a partner is to be regarded as movable property when it is sought to be dealt with under O. 21 R. 49, Civil Procedure Code, notwithstanding that at the time when it is charged or sold, the partnership assets include immovable property.

Partnership Chandrakant Manilal Shah v. Commissioner of Income-tax, Bombay, AIR 1992 (SC) it cannot be said that when a coparcener enters into a partnership with the karta of a HUE and contributes only his skill and labour, no contribution of any separate asset belonging to such partner is made to meet the requirement of a valid partnership. Reverting to the facts of the instant case it is noteworthy that it is not the case of the Revenue that the partnership between Chandrakant Manilal Shah as karta of HUE and Naresh Chandrakant was fictitious or invalid on any other ground.

Partnership In Commr. of Income-tax V. Sir Hukumchand Mannalal and Co., (1970) 78 ITR 18 "The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual : it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all : if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family."

Partnership I.P. Munavalli v. Commr. of Income-tax, Mysore, (1969) 74 ITR 529, it was held by the Mysore High Court, after referring to the decision of the Privy Council in the case of Lacchmandas, and of Supreme Court in the case of Bhagat Ram, :- "So it is clear that the Supreme Court did not dissent from the opinion expressed by the Privy Council that "in respect of their separate or divided property" the coparceners of a Hindujoint family, even though they had not become divided from one another and there had been no partition of the family properties, could become partners of a firm of which the Joint Hindu family represented by its karta is itself a partner. If a partner by putting into the partnership by way of his capital his separate property or the property which he obtained at a partition on division and thus can become a partner with the family represented by its karta, it is difficult to understand how such a partnership cannot come into being and why a coparcener who continues to remain a member of the coparcenary cannot become a working partner of a firm of which he and the family represented by its karta are the partners. In Lachhman Das's case the coparcener placed at the disposal of the firm as his capital his separate property, and in the case of a working partner he contributes his skill or labour or both as the case may be. If the partnership is permissible in one case, it would be difficult to assign any reason for reaching the conclusion that it is not permissible in the other."

Partnership –Sec 69(2) Purushottam v. Shivraj Fine Art Litho Works, 2007 (4) JT 564 (SC) With respect, we find ourselves in complete agreement with the principles enunciated in Haldiram Bhujiawala and Anr. Having regard to the purpose Section 69(2) seeks to achieve and the interest sought to be protected, the bar must apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply. In the instant case the contract was entered into with the respondent firm by the erstwhile proprietor of the concern namely Purushottam. The partnership firm came into existence later. The amount claimed in the suit were due to the proprietor Purushottam who carried on his proprietary business in the name and style of "Dinesh Paper Mart". When he entered into partnership with others, he contributed to the partnership by way of his contribution to the capital, all the assets and liabilities of his erstwhile proprietary concern. Thus, though the partnership firm, which was unregistered, became entitled to enforce the contractual obligation of the defendant firm which it owed to Purushottam, the contract was not one entered into by the unregistered firm with a third party, nor was it one entered into by the unregistered firm in the course of its business dealings with the defendants. So viewed, the bar of Section 69(2) cannot apply to the suit filed by the Plaintiff - appellants.

Partnership –Sec 69(2) Raptakos Brett & Co. Ltd. Vs ganesh Property 1998 (7) SCC 184 that the bar in Section 69(2) of the Act did not operate to bar a suit by an unregistered firm seeking enforcement of a statutory right or a common law right. It was held that a passing off action being a common law action based on tort, and not on contract, Section 69(2) did not apply. The reliefs of permanent injunction and damages were claimed on the basis of infringement of registered trademark. Thus the suit was held to be one based on statutory right under the Trade Marks Act, and therefore not barred by Section 69(2). "A mere look at the aforesaid provision shows that the suit filed by an unregistered firm against a third party for enforcement of any right arising from a contract with such a third party would be barred at its very inception. To attract the aforesaid bar to the suit, the following conditions must be satisfied : (i) That the plaintiff-partnership firm on the date of the suit must not be registered under the provisions of the Partnership Act and consequently or even otherwise, the persons suing are not shown in the Register of Firms as partners of the firm, on the date of the suit. (ii) Such unregistered firm or the partners mentioned in the sub- section must be suing the defendant-third party. (iii) Such a suit must be for enforcement of a right arising from a contract of the firm with such a third party".

Partnership –Sec 69(2) D.D.A. v. Kochhar Construction Work and Anr., (1998)8 SCC 559. In view of the clear provision of the Act it was not possible to subscribe to the view that subsequent registration of the firm may cure the initial defect, because the proceedings were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were instituted was not a registered firm on the date of the institution of the proceedings.

Partnership –Sec 69(2) M/s. Shreeram Finance Corporation v. Yasin Khan and others, (1989)3 SCC 476, a suit filed by the existing partners of the firm after reconstitution was not maintainable if the newly added partners were not shown as partners in the Register of Firms under the Act. In that case the suit was filed in the name of the current partners as on the date of the suit, whose names were not shown as partners in the Register of Firms maintained under the Act. It is no doubt true that in the aforesaid decision the bar was attracted not on account of non-registration of a partnership firm but on account of the fact that the persons suing had not been shown in the Register of Firms as partners of the firm.

Partnership M.V. Karunakaran v. Krishan, AIR 2007 (SC) 1501 The partners as pre-existing co-owners had a definite share of the property. They merely applied their own property for running a business in partnership. On dissolution of the partnership, their right in the property revived. Using of a premises for business purpose would not automatically lead to the conclusion that the premises belonged to the partnership firm.

Partnership Addanki Narayanappa and another v. Bhaskara Krishnappa (dead) and thereafter his heirs and others [AIR 1966 SC 1300], this Court opined : "...The whole concept of partnership is to embark upon a joint venture and for that purchase to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. it would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated his right during the subsistence of the partnership is to get his share of profits from time to time as maybe agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of solution or retirement after a deduction of liabilities and prior charges..."