Allied Laws

9.  Abatement of decree in case of death of sole defendant – Decree passed in ignorance of such death – Held to be null and void. [Code of Civil Procedure, 1908, Order XXII].

Angadi Srinivasa and Ors. vs. M. Girija AIR 2016 Karn. 176 (HC)

The substantial question of law raised for consideration before the Karnataka High Court was “whether the decree passed by the Lower Appellate Court, in ignorance of the death of the respondent before it is sustainable in law?”

The husband and father of the appellants – Angadi Srinivasa, was the sole defendant. The suit was filed by the respondent herein for passing a decree of ejectment against Sri Angadi Srinivasa and for delivery of vacant possession of the suit premises. The defendant/respondent died on 25.12.2010. Death of the respondent was not informed and the legal representatives of the deceased were not brought on record by the appellant. Upon hearing the arguments, the appeal was allowed and the judgment and decree passed by the Trial Court was set aside and the suit was decreed with costs. The defendant was directed to vacate and hand over vacant possession of the suit property to the plaintiff within a period of three months and pay damages.

Learned advocate contended that as the sole defendant, who was the sole respondent in the appeal died during the pendency of the appeal before the Lower Appellate Court and his L.Rs. having not been brought on record, the Lower Appellate Court has committed illegality in allowing the appeal and setting aside the decree of dismissal of the suit passed by the Trial Court.

Learned advocate for the defendant, on the other hand, contended that the defendant having failed to appear and file written statement to the suit, that in view of the provision made as per Order 22 Rule 4(4) CPC, the impugned decree is sustainable.

In the case of MOHD. SAFDAR SHAREEF (DIED) PER L.RS. AND OTHERS vs. MOHAMMED ALI (DIED) PER L.R. 1993(1) ALT 522, it was held as under:

“The appeal which has abated by operation of law, cannot be revived and the decree which has become a nullity being a decree against a dead person, cannot also be revived. Therefore, the inescapable result of the above discussion is that the appeal before the learned single Judge has become abated and the decree passed by him is a nullity.”

In the present case, the appellant in the Lower Appellate Court had not sought the exemption in terms of sub-Rule (4) of Rule 4 of Order 22 CPC, prior to the pronouncement of the judgment. The sole respondent having died during the pendency of the appeal before the Lower Appellate Court and as his legal representatives were not brought on record, the appeal abated and hence, the decree passed by the Lower Appellate Court being against a dead person was a nullity.

In the result, appeal was allowed and the impugned judgment and decree were declared as null and void.

10.  Gift Deed – Revocation of gift based on unwillingness of daughter to maintain the mother – No condition for maintenance mentioned in deed – Revocation not proper. [Transfer Of Property Act, 1882; Section 126,44; Maintenance And Welfare Of Parents And Senior Citizens Act 2007, Section 23]

Jagmeet Kaur Pannu, Jammu vs. Ranjit Kaur Pannu AIR 2016 P & H 210 (HC)

The revision petition was filed in the High Court against the order passed by the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short the ‘Act’) directing that the gift executed by the mother in favour of the daughter is voidable at her instance and hence ordered to be voided.

The Tribunal relied on the assertion of the mother that the daughter was not behaving with her properly and abused her with filthy language and treated these assertions as justifying the demand for the document being declared null and void.

The High Court held that u/s. 23 of Maintenance And Welfare Of Parents And Senior Citizens Act 2007, the relevant part being stated as under:

If the transferee refuses or fails to provide such amenities and physical needs as required, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

Section 126 of the Transfer of Property Act deals with a rule of public policy that a person who transfers a right to the property cannot set down his own volition as a basis for his revocation.

There have been views held from decisions of several courts that if a gift deed is clear and operative to transfer the right of property to another but also contains expression of desire by the donor that the donee will maintain the person, the expression contained in a gift deed must be treated as pious wish and the sheer fact that the donee did not fulfill the condition, cannot vitiate the gift.

In the present case, order passed by the Tribunal is based only on the assertion made by the mother that “the daughter is not behaving with her properly and abused her and used filthy language to her several times on telephone”. No judicial exercise has been undertaken by the Tribunal to examine whether the documents contained any condition and whether there had been any demand made by the mother on the daughter that provided the proof for the Tribunal to render a finding that the transferee refused to provide such amenities and physical needs.

Hence the order of the Tribunal was set aside.

11.  Interpretation of Statutes – Use of Comma before the word ‘AND’ –Disjunctive and not Conjunctive [Karnataka Stamp Act, 1957, Section 33]

Gajanan Ramachandra Velangi vs. Teegala Vijaya Irappa and Ors.. AIR 2016 Karn. 163 (HC)

While adjudicating the matter whether an Arbitral Tribunal has the power to impound documents, not duly stamped, an issue of interpretation came up before the court where it was contended that the word ‘and’ occurring in section 33(1) of The Karnataka Stamp Act, 1957, should be understood in a conjunctive sense, and hence, mere authority to receive evidence is not sufficient, but the said person should also be in-charge of a public office to get the power to impound any document. He submitted that an Arbitral Tribunal cannot be said to be a person in-charge of a public office, and therefore, it has no power to impound any document u/s. 33 of the Act.

Relevant extract of section 33(1) of the Act is as under :

33. Examination and impounding of instruments.–(1) Every person having by law or consent of parties authority to receive evidence, and every person in-charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

It was held by the Court that the use of comma before the word ‘and’ occurring therein indicates that the word ‘and’ should be understood in a disjunctive sense. It is not necessary in law that the said person should also be in-charge of a public office.

The appeal was devoid of merit and was accordingly dismissed.

12.  Right to Information – No exemption from disclosure when information relates to Corruption and violation of Human [Right to Information Act, 2005, Section 24(4)]

Subhash v. State Information Commission, Haryana and Ors. (AIR 2016 P & H 203) (HC)

a. The petitioner sought for information w.r.t. the issue of corruption (i.e. cases registered against the officers, action taken against such officers, benefits withdrawn or given to such officers, etc.) against the officers under  Right to Information Act, 2005.

b. Accordingly a Writ Petition has been filed against the order of Respondent-Commissioner who denied information to the petitioner on the ground that information sought was qualified to be ‘personal information’ u/s. 8(1)(j) of the Right To Information Act, 2005 and a finding was recorded that the information which was sought was primarily between the employee and employer and therefore the disclosure of which had no relationship to any public authority or public interest and hence was not required to be disclosed.

Held that reliance upon the judgment of Girish Ramachandra Deshpande vs. CIC & Ors, 2012(8) SCR 1097 in facts and circumstances of the case was not justified, since it related to information being sought w.r.t. ‘Personal Information’ which would amount to unwarranted invasion of privacy of private individual as per section 8(1)(j) of the Right to Information Act(supra), which gives an exemption from disclosure of personal information which has no relation to any public activity or interest. However, the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, if satisfied, that the larger public interest justifies the disclosure of such information, they may disclose such information.

Reliance was placed in the case of First Appellate Authority-cum-Additional Director General of Police and another vs. Chief Information Commissioner, Haryana and another AIR 2011 (Punjab) 168, where it was held that information pertaining to corruption is relevant and cannot be denied. In the said case, the Division Bench held that notification u/s. 24(4) of the Act would not exempt the information which pertains to corruption since the Act itself provided that the notification could not include the allegation of corruption and human rights violations.

In the present case, keeping in view the above principles laid down in First Appellate Authority-cum-Additional Director General of Police’s case (supra) and fact that the judgment of the Apex Court in Girish Ramchandra Deshpande’s case (supra) is not applicable in the facts and circumstance of the present case and hence the impugned order is quashed.

13.  Stamp Act – Valuation of Property–Market value at the time of registration of the property should be considered and not at the time of Agreement of Sale – Long time of litigation shall not affect market value of instrument. [Indian Stamp Act, 1899 – Sections 17, 2(12), 27, 3, 47A]

Manoj Kumar Mishra vs. State of Bihar and Ors. AIR 2016 PATNA 155 (HC)

The point which is to be decided by the High Court, “whether the valuation should be assessed on the market rate prevailing at the time of registration of the sale deed or when the parties entered into agreement to sale.”

The respondent for the State submitted that u/s. 47. A of the Stamp Act the petitioner is liable to pay the stamp duty on the present market value of the property and for considering the stamp duty and registration fee, the valuation mentioned in the agreement is irrelevant.

The counsel for the petitioner submitted that the petitioner is liable to pay the stamp duty on the basis of the valuation mentioned in the agreement between the parties as per the decision of the Division Bench in this Court in Brij Nandan Singh vs. The State of Bihar & Ors. 2006 (3) PLJR 538.

It was held that from a composite reading of sections 3, 17 and 27 of Indian Stamp Act, 1899, it becomes clear that the valuation given in an instrument is not the conclusive valuation and the registering authority is not bound by the valuation mentioned in the deed sought to be registered.

It is settled principles of law that a taxing statute has to be construed as it is. All the contingencies that the matter was under litigation and the value of the property by that time became high cannot be taken into account for interpreting the provisions of a taxing statute.

In the case of the Hon’ble Supreme Court in State of Rajasthan and Others vs. Khandaka Jain Jewellers, (2007) 14 SCC 339, court decided the question “whether the valuation should be assessed on the market rate prevailing at the time of registration of the sale deed or when the parties entered into agreement to sale” and in answer to this question considering sections 2(12), 3, 17, 27 and 47-A of the Rajasthan Amendment of Stamp Act held that a taxing statute has to be construed strictly and hence the plea that the instrument took a long time to get a decree for execution against the vendor that consideration cannot weigh with the court for interpreting the provisions of the taxing statutes. Therefore, simply because the matter has been in the litigation for a long time that cannot be a consideration to accept the market value of the instrument when the agreement to sale was entered. The valuation is to be seen at the time when registration is made.

In view of the decision of the Supreme Court, the Division Bench decision of this Court Brij Nandan Singh (supra) is no longer a good law as has been impliedly overruled. Accordingly, the writ application was dismissed. _