Will -- Executed in favour of eight siblings to the exclusion of plaintiff - Testator was of sound disposing state of mind at the time of execution of Will - There is a reason stated for such exclusion of plaintiff in Will - Plaintiff is found to have no partible claim over properties of her father, which by a Will have been bequeathed to other siblings of plaintiff -..........
Civil Procedure Code, 1908, Order 21, Rule 35 -- Execution - Decree for specific performance - Issuance of possession warrant - Relief of possession is in built in decree for specific performance of contract - Executing Court has not travelled beyond decree by issuing possession warrant...........
Agreement to sell -- Breach of agreement - Refund of advance amount - Execution and contents of agreement unequivocally admitted by defendant in his evidence - Case projected by defendant that plaintiff was aware of encumbrance on suit property from inception was nothing but an afterthought, devised solely to defeat plaintiff's legitimate claim for refund - More so, upon..........
Will -- Due execution - Suit property is in the ownership of Family Trust - It was thus, not within power of testator to bequeath the trust property by way of Will as her personal property...........
Specific Relief Act, 1963, Section 28 -- Scope - Operation of S.28 of the Act ceases after execution of sale deed...........
Specific Relief Act, 1963, Section 28 -- Rescission of contract - Relief of rescission of contract can be sought by a transferee pendente lite and while deciding such application, Court only decides antecedent rights - Fact that such right of rescission is sought after execution of sale deed in favour of original plaintiff is a fact fatal for the applicant...........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of plaint - Suit filed by plaintiff claiming natural succession whereas defendants were claiming title over suit property on basis of Will - Plaintiffs only sought formal amendment in respect of cause of action by stating that cause of action will start from death of testatrix and not from date of execution of Will,..........
Agreement to sell -- Validity - Plaintiff discharged his burden by examining attesting witness as well as scribe - However, defendant miserably failed to prove his defence - Plaintiff proved execution of agreement to sell...........
Civil Procedure Code, 1908, Order 21, Rule 43 -- Execution - Attachment of proceeds of movie - JD has not made any sincere attempt to settle decree amount - He is borrowing time by filing counter statement or by giving undertakings - Even one time settlement recorded by High Court also not utilized by JD - JD thus, not entitled for any leniency - Execution Court rightly..........
Civil Procedure Code, 1908, Order 41, Rule 5 -- Stay of execution - First appellate Court should have taken a decision on stay application, as in first appeal all questions of facts and law are to be considered by first appellate Court, which is also the last Court of facts...........
