Hindu Property types

This article explains and answers the following questions:-

 

 

i) What is a Joint Hindu Family/Hindu Undivided Family as per the law ?

 

ii) The Joint Hindu Family Property ? who all have a right ?

 

iii) What is a Coparcenary ? and who all are Coparceners ?

 

iv) What do we mean by daughters being coparceners as well ? 

 

v) The rights and obligations of coparceners ? Can a coparcenor sell/gift his interest in ancestral properties ?

 

vi) Who can seek a partition ?

 

vii) What is the difference between self acquired & ancestral properties ?

 

vi) Who is a karta? What are his rights & obligations ?

 

Concept of Joint Hindu Family or Hindu Undivided Family (HUF - A Tax term)

 

A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last few decades. A joint Hindu family is a group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It includes children, children's children down the line, spouses.  A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their parental side are part of a hindu joint family. A joint family may encompass countless generations. 

 

A joint family is headed by a karta who is normally the eldest living male member of the family. Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power and duty of superintendence of how the joint family is run, who is getting what ?, how the members are being maintained ? He is also entitled to dispose off the property in times of dire need/necessity. After 2005 amendments by which women have been given equal proprietary rights in ancestral property even women can be Kartas.

 

A Coparcenory 

 

Within the joint family there is a narrower body called the Coparcenary.

 

This includes the eldest male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This special group of people are called coparcenors and have a definitive right in ancestral property right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled out by filing a suit for partition at any time.   A coparcenor’s interest is not fixed it fluctuates by birth and deaths in the family.

 

Ancestral & Self Acquired properties

 

A property is ancestral when acquired through inheritance from ancestors, this property is always shared by members of a coparcenary equally. On the other hand property is self acquired if it is earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is the sole owner and nobody exercises any right  on the same during his lifetime.

 

Partition

 

Any coparcenor can at anytime seek a partition of his share. The continuing coparceners can seek to buy out the share of coparcenor expressing his intention to move out by exercising the right of ‘pre-emption’.

 

Can a Coparcenor sell/gift/dispose off his right in ancestral/coparcenary property?

 

Yes – a coparcenor can sell/gift away his interest to another coparcenor or even a third party. However a third parties right to take possession of property alongwith rest of coparcenary is limited. The family can buy the third party out in order to maintain integrity of the house and to prevent a stranger from getting in with the family. This right is given by Transfer of Property Act as well as the Partition Act.

 

Can a Karta dispose of coparcenary property without consent of the family/other coparceners?

 

Yes in cases of legal necessity/benefit of estate the karta can alienate joint family property. However such an alienation can be challenged by the continuing coparceners as not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

 

Author is a Supreme Court advocate specialising in Property Laws and Joint Family affairs, with special regard to Joint Family Property & Partition Cases.

 

Law of limitation

Law of limitation
In order to prevent any suit running till perpetuity law of limitation is necessary.
Every civil suit has a limitation period that is the maximum time allowed to file a civil suit after the date of cause of action.

cause of action
The cause of action is the date from which a civil/criminal offence came into force.The cause of action is important to calculate the limitation period.In order to find that a civil suit is filed within the stipulated time.

Law of Limitation and criminal offences
The law of limitation is not applicable on offences which have punishment > 3years.But on some offences the law of limitation is applicable as prescribed by 468 crpc.

ADVERSE POSSESSION

In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], Court held : In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.” 

Yet recently, in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59], Court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine : “Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.” 

M. Durai v. Muthu & Ors. [(2007) 3 SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act, holding : “The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

AIR 2008 SC 346 Annakili vs A. Vedanayagam & Ors Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title. 


AIR 2007 SC 1753 P.T. Munichikkanna Reddy & Ors VS Revamma and Ors CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor or on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.

Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. 

Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title.


In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] Supreme court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse."

A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by Supreme Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: 
(a) on what date he came into possession,
(b) what was the nature of his possession, 
(c) whether the factum of possession was known to the other party, 
(d) how long his possession has continued, and 
(e) his possession was open and undisturbed. 

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"

In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], Supreme Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter."

In Karnataka Wakf Board, the law was stated, thus: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."


An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."

Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined : "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable"


Chatti Konati Rao & Ors. vs Palle Venkata Subba Rao on 7 December, 2010 Bench: JUSTICE HARJIT SINGH BEDI, JUSTICE CHANDRAMAULI KR. PRASAD
In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows : "20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows : "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. 

Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.


In a case before Supreme Court Vidya Devi vs Prem Prakash AIR 1995 SC 1789, By referring to following citations the point is clarified “In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'..... His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."

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Concept of Estoppel

1.0 INTRODUCTION

 All of us know what estoppel is. I first heard about it when I was reading section 28 of the Partnership Act, 1932 which provides that a person holding out to an outsider providing credit to the firm is estopped from pleading that he is not a partner when circumstances indicated that he so represented himself. There are varieties of other estoppels like those found in Contact law, law of sale of goods and law of evidences. This article seeks to discuss estoppel in contract law.

1.1 ESTOPPEL

The word “Estoppel” is derived from the French word “ESTOUPE” from which the word estopped in English language emerged. A man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth” (See Lord coke in Co. Litt 352(a) as cited by the Hon’ Supreme Court in B.L. Sreedhar v/s K.M. Munireddy(2003) 2 SCC 355 at 365. Estoppel, simply put, means this: a man who made a promise or representation etc to another person who based on that promise or representation altered his position or situation, then the promisor shall be estopped in law to go back on his promise or representation.

It is a rule of equity invented by the courts to do justice. It is also a rule of Evidence. Section 115 of the Indian evidence act, 1872 contains express provisions recognizing the doctrine of Estoppel.Section 43 of the Transfer of Property Act also contains provisions recognising the doctrine of estoppel.

2.0 CONTRACT LAW

Let us see the application of the doctrine in the arena of contract law. It is settled that a contract without consideration is void subject to the exceptions for which the law makes specific provisions. But we may come across situations where there is no contract in law yet it requires to be enforced in the interests of equity, justice and good conscience. But the stringent rule of consideration would stare at us. Is there any remedy or solution when the statute provides none?

2.1 HISTORY OF THE DOCTRINE

When we strive to look into the history of application of this doctrine of “Promissory Estoppel” in the field of contract law, we may begin with JORDEN v MONEY (1854) 5 H.L.C 185, a decision of the House of Lords in England. In that case Mr. Money borrowed 1200 pounds from Marvell who died. Mrs.Jorden took the bond as successor. Money was about to marry and this debt caused concern for him. But Mrs. Jordan came to his rescue and promised that she will never enforce the bond. So he married. But Mrs.Jorden sought to enforce the bond after 5 years. Mr.Money defended the action by pleading that she be estopped. The House of Lords held that he is liable as estoppel work only in respect of a statement of existing fact was not to representations about future. But lack of consideration for the promise of Mrs.Jorden stood in the way. Thus the Lords refused to give relief to Money.

2.2 METROPOLITAIN RAILWAY CO CASE

The second case in line in the history of the doctrine is Hughes v/s Metropolitan Railway co (1877) 2 AC 439. It is definitely worthwhile to look into the famous passage from the speech of Lord

Cairns which is set out below.

"It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties."

2.3 THE DOCTRINE GETS WIDENED

The third case is Birmingham and District Land Co v London and NW Railway Co (1888) 40 Ch.D 268. it was stated by Bowen LJ that Estoppel is wider than cases of forfeiture and stated as follows.

“It seems to me to account to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in abeyance or suspense for some particular time, those persons will not be allowed by a court of Equity to enforce the rights until such time has elapsed…”

So by 1888 the doctrine assumed wider dimensions than before.

2.4 HIGH TREES….HIGH TREES…….HIGH TREES

The fourth but the most important land mark case is Central London Properties Trust Ltd. v/s High trees House Ltd (1941) 1 KB 130. The case is popularly known as High tree’s case. This judgment was delivered by none other than the great Lord Denning who shall ever be regarded as the one of the greatest English judges of the last century. He was only a junior judge of the Kings Bench of the High Court.  I shall set out below the facts of the case briefly as stated by the great judge himself in his book “the discipline of Law”.

2.5 FACTS OF THE HIGH TREES CASE

 The facts were quite simple. During the war many people left London owing to the bombing. Flats were empty. In one block, where the flats were let on 99 year leases at 2500 a year, the landlord had agreed to reduce it by half and to accept 1250 a year. Then the bombing was over, and the tenants came back, the landlord sought to recover the full 2500 a year.

2.6 LORD DENNING TURNS HERO

Lord Denning held that Landlord cannot recover the original rent of 2500 a year when the flats were empty. The learned judge in his judgement stated as follows which has become classic.

“If I were to consider this matter without regard to recent developments in the law, there is no doubt that had the plaintiffs claimed it, they would have been entitled to recover ground rent at the rate of 2500 a year from the beginning of the term, since the lease under which it was payable was a lease under seal which, according to the old common law, could not be varied by an agreement by parol (whether in writing or not), but only by deed. Equity, however, stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced in writing), the courts may give effect to it…. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that –payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v Money, a representation as to the future must be embodied as a contract or be nothing”

2.7 LORD DENNING LEAPS OVER THE FENCES   

Thus time has come to do something to do justice and to leap over the fences created by law and the binding decision of the House of Lords in Jorden v Money (1854) 5 HLCas185.  Lord Denning observed as follows:

“In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better. That aspect was not considered in Foakes v Beer. At this time of day however, when law and equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is to be noticed that in the sixth Interim report of the Law Revision Committee, paras 35, 40, it is recommended that such a promise as that to which I have referred, should be enforceable in law even though no consideration for it has been given by the promise. It seems to me that, to the extent I have mentioned, that result has now been achieved by the decisions of the courts”.

Thus justice has been done even in the absence of consideration for the variation in the terms of the contract.

3.0 CANNOT BE OVER THROWN BY A SIDE WIND

Thus now the doctrine is firmly established and “cannot be over thrown by a side wind”. Thus the doctrine came to be accepted as legally firm and conceptually sound. There was no going back. There was no appeal to the Court of Appeal or to the Lords. Thanks to the parties. On a close look at High trees case it can be seen that the court intended to assist the parties for defending an action and has not recognised the doctrine of promissory estoppel as a cause of action.

3.1 NOT A SWORD

Soon came the decision of the Court of Appeal in Combe v Combe(1951) 2 KB 215 decided by Lord Denning himself now a judge of the Court of Appeal (CA). It was in 1950.Mr.Combe promised to give Mrs.Combe an annual maintenance amount before divorce. But after divorce Mr.Combe refused to pay. Mrs.Combe thought that there is a breach of promise. Mr.Combe promised, she relied on that promise and in fact acted upon the promise (by not seeking assistance of courts for getting maintenance order). So she thought she can rely on HIGH TREES and get relief. The lower court allowed her claim based on High trees. But on appeal to Court of Appeal (CA) the matter came up before Lord Denning and the very person who is regarded as the defender of the doctrine refused to apply the same.

He stated the estoppel could only be used as a "shield" and not a "sword". In the High Trees case, there was an underlying cause of action outside the promise. Here, promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. He further stated that the High Trees principle should not be stretched so far as to abolish the doctrine of consideration, He went on to add “"The doctrine of consideration is too firmly fixed to be overthrown by a side-wind....it still remains a cardinal necessity of the formation of a contract".

4,0  AS CAUSE OF ACTION

Presently the subject matter of discussion among legal experts is regarding the limitation placed by Combe v Combe. They plead for widening the scope of its application. The doctrine should be capable of being used as a cause of action  in addition to its application as a shield of defence. It is to be noted that United states abandoned this restriction long back in Hooffman v Red owl stores 133 NW 2d 267 (1965). Australia also in a recent case in Walton’s stores (Interstate) v Maher (1988) 164 CLR 387 widened or stretched it to give relief as a cause of action. It may also be noted that the House of Lords (now Supreme Court) is yet to discuss the doctrine of promissory estoppel and its limitations.

5.0 PROPRIETORY ESTOPPEL

The courts have invented a new species of estoppel known as “Proprietory Estoppel” which is related to promises on properties. The Hon High Court of Kerala in a very recent decision in Jammeela Beevi V Basheer and others reported in AIR 2012 KER107 held that the seller shall not be allowed to go back on the representation when the purchaser acted upon it in full faith of the representation so made. The Hon Court relied on the judgement of the Hon Supreme court in Jumma Masjid Mereara v Kodimaniandra Devian and others reported in AIR 1962 SC 847.

6.0 CONCLUSION

To sum up, let us try to understand the main ingredients necessary for application of the doctrine in the field of contract law.There must be a promise by one person to another which can be enforced in a court of law. The promisor makes a representation to the promisee and the promisee based on that representation acts or alters his position fully relying on the representation.. Then subsequently the promisor shall not be allowed to go back on his promise and on an action by the promisor the promise can invoke the doctrine of promissory estoppel as a defence. He can even use it positively as a cause of action in view of the developments in US and Australia etc after the land mark decision in High Tree’s case. This article is mainly confined to English decisions and the application of the doctrine in the field of English law.

The game of Adjournments

The Olympics are here once again. It is that time of the year when people around you start talking about sports no one has ever heard of and will never mention again for another four years.

For two whole weeks people will pore keenly over the progression of world records in discus throwing, the fitness of horses in the equestrian events andhow the Koreans are essentially unbeatable in women’s archery. Then we can all go back to obsessing over cricket.

But in the spirit of things, I would like to take this opportunity to introduce to the public a little known but fairly widely played sport called “The Adjournment Game”.

The Adjournment Game, unlike its more well known compatriot, Kissa Kursi Ki (literally “The Game of Thrones”) doesn’t always feature prominently in popular culture or mass media (save for one very notable exception), and perhaps this explains its lack of popularity among the masses. However, once you understand its intricacies and strategies you will find yourself deeply engrossed in what will prove to be an enriching and deeply rewarding sport.

1. The Rules

The object of the Adjournment Game is very simple – the player (i.e., the lawyer) has to make the judge adjourn the case that is all set to be taken up for hearing.

This is not to be confused with the regular judicial process when a case is adjourned for completely valid reasons like the Bar Association going on (yet another) strike or the lawyer dropping dead in court and such like.

Having a valid reason for seeking an adjournment takes the fun out of the game – sort of like having the Olympic swimming events in a shark-infested pool where the fastest swimmer lives or the shooting events involving the participants shooting at each other.

No, the point of the Adjournment Game is to come up with an excuse (much less, a reason) to seek and obtain an adjournment of the case by the judge. The reason must be sufficiently vague to require no further detail, yet sufficiently precise to merit an adjournment.

As you can imagine there’s a lot of scope for free play and improvisation. Simple as the rules of the game actually are, they allow for the adoption and testing of various intricate strategies and tactics that make this an engrossing spectator sport.

2. Advanced tactics

Over the long and illustrious history of the Indian Bar, many, many strategies have been evolved by its leading practitioners that have continued to be used to this day.

Over these years strategies have been distilled to a few opening gambits (like chess) that can make or break the game. Much of course depends on the skill level of the player using this strategy, and of course it helps to actually be related to the judge (or being related to any judge) in getting an adjournment.

For the benefit of the lay reader, the eager amateur and the practicing professional, I bring to you some of the most popular and thrilling strategies of the Adjournment Game.

2.1. The Non-Availability of the Senior Conundrum

This gambit is usually preferred by juniors of senior counsel or lawyers fresh into the profession who are under the mistaken assumption that the truth will get you an adjournment. Upon (over)using this gambit, they’re quickly disabused of such notions.

The gambit proceeds on making a very reasonable request to the court that since the senior counsel who’s been briefed is not present in court, perhaps it would be for the best if the matter is adjourned.

The key sportsman would have noted the problem with its gambit – specificity. It almost begs the question: “Where is the senior counsel?”

Here arrives the next problem. To say “in another courtroom on his legs arguing a matter” is to almost inevitably invite the “so what? You argue!” retaliatory finishing stroke. At best you might escape with a pass-over and at worst, well, it won’t be a pretty sight.

Short of constitutional authorities (i.e. the Chief Justice of India) compelling attendance of said senior counsel (who also happens to be government lawyer) in another court/courtroom, this is a dangerous gambit to use, and is best avoided in all but the rarest of easy situations.

2.2. The Personal Difficulty Opening

By far the most popular stratagem in the Adjournment Game is the Personal Difficulty Opening.

An adjournment is sought because the counsel (senior or otherwise) is unavailable for “personal difficulty”. As with other things in the law, semantics is important here. “Personal” would mean that the judge can’t really ask for details in open court lest he/she sound too voyeuristic.

Yet, it hints sufficiently at the kinds of problems that may compel one to be unavailable for the case at the last moment. Any doubt about the last minute nature of this problem is removed by the use of the word “difficulty”. It almost perfectly meets the requirements of both vagueness and specificity to the right degree in almost any situation.

Some rookies however, tend to ignore the semantic effect of the Opening and simply say “personal reasons”. This sets off alarm bells in the judge’s mind as it seems to suggest that the lawyer in question just couldn’t be bothered to come up with a proper excuse for an adjournment, let alone a reason to turn up in court.

Repeated use may however prompt unwarranted concern of the court in which case the vagueness aspect may stand diminished while using this opening.

2.3. The Material Instructions Move

All judges have, at some point of time in their lives, been lawyers. Some more successful than others but all know the pressures and peculiarities of practice, especially that peculiar source of pressure – clients.

Clients who make increasingly unreasonable demands on your time and effort without a proportionate increase in fees are a plague upon the profession, and one can parlay the imposition of having to appear without adequate fees into a solid ground for adjournment with the golden words “material instructions”.

One can’t obviously come out and say “I’m not going to appear today because my dodgy client wants to see if he can get away with not paying me for my appearance”. One has to find a delicate way to say so, and the profession seems to have agreed upon “material instructions”.

Of course if you’re appearing for the Government (or pretty much any governmental body), you’re essentially working for no money and lots of promises so this might not cut much ice with the judge in such a situation.

2.4. The Additional Documents Alibi

This is a move which needs to be played with some care. A counsel needs to pick and choose the court and the time in which to make the request for an adjournment to file additional documents. To seek an adjournment first-up for this request invites the obvious and devastating question “Which documents?”, followed by the crushing, “How’s it relevant to the case at hand?”

The trick here is to pretend that you don’t actually want an adjournment and that you’re proceeding to argue the case and then, at the appropriate moment, slip in a reference to an event or document that has not been referred to in the paper book. When the judge looks for it, you look around horrified and apologetic that you’ve made such a silly mistake and ask for time to file it. Continue to look apologetic until you walk out of court and double-high-five someone.

The really skilful lawyers (and this mostly works only in appellate or writ proceedings) is to leave in just enough documents to make your case, but leave out just enough so that when you need an adjournment, you have a ready-made excuse.

3. Advanced Improvisations

Naturally, the above strategies are not exhaustive and the innovative lawyer must improvise in a difficult corner. Of course, it is not possible to list all the possible and successful improvisations, but one example should suffice to show you how the masters of the Adjournment Game play it.

The late, great AK Sen, a fine lawyer and by all accounts one of the finest this country’s had, was also a great player of the Adjournment Game. On one occasion, he was faced with a most obdurate judge who refused an adjournment for all reasons, and with a calculatedly weary sigh, AK Sen began arguments.

“My Lord may please turn to page 35 of the paper book.”

“Yes, Mr Sen.”

“My Lord would see the letter written by so and so.”

A moment of page rustling.

“I’m afraid not Mr Sen, this seems to be the order of some authority.”

“Is it my Lord?”

“Actually sir,” the briefing counsel whispers to AK Sen, “the judge has the correct page number. It is the order of…”

AK Sen hisses at him to shut up.

“Does my Lord have that letter on page 35?”

“I’m afraid not Mr Sen, there seems to be an error in the pagination.”

AK Sen frowns. “Oh is that so, my Lord? Staring indignantly at the briefing counsel, I deeply apologise for the inconvenience. Let me have this fixed within the week.”

“Sure, Mr Sen. Adjourned by one week.”

4. General Tips

While all the above strategies have their own pros and cons, the player must keep one fundamental maxim of the Adjournment Game.

In the Adjournment Game, you win or you die...

... a thousand deaths in full public view as the judge makes you argue a case you’re ill prepared for to the general laughter of a packed courtroom.