Allied Laws

16. 
Foreign Decree – Execution in India. [Code of Civil Procedure, 1908,
Sections 13, 44].

In the present
case, the primary contention raised is that the parties are foreign nationals
and the direction by the Canada Court can only be executed at Canada and not in
India.

Hanifa
Kalangattu vs. Shaista Khan AIR 2017 KERALA 217

It was contended that, as per section 44A of
the Code of Civil Procedure, a decree of the foreign Court can be executed only
if the certified copy of decree of any of the Superior Courts of any
reciprocating territory has been filed before the District Court. However,
there was no material to indicate that Canada is a reciprocating territory which
would enable the said foreign judgment to be enforced and executed by this
Court.

It was held by the High Court of Kerela that
since no materials were produced either before the Family Court or before this
Court to indicate that Canada is a reciprocating territory as far as Government
of India is concerned, in the absence of any such material, there is a clear
bar of jurisdiction for entertaining the execution petition which has been
totally ignored by the Court below.

17.  Hindu female dying intestate – Inheritance
after death of her second husband – Devolution of Property – To go back to
husband’s heirs when not self acquired [Hindu Succession Act, 1956; Sections
14, 15, 16]

Suldeep (Through Legal heir) vs. Hira Lal
and Ors. AIR 2017 CHHATTISGARH 164

The only issue which was to be adjudicated
here was whether the property in question would devolve upon the heirs of the
deceased second wife or upon the heirs of the deceased husband, who was the
owner of the property.

The facts of the case are that the plaintiff
instituted a suit for declaration of title and vacant possession of the suit
property (house and hotel) by submitting, inter alia, that his father
was the owner of it and after his death, it was inherited by him. It is pleaded
that defendant No.1, the second wife of the deceased father (since deceased,
now represented by her legal representatives) was his father’s servant as she
was working as such in his hotel business and used to take care of him whenever
he fell ill. It was pleaded in the plaint that defendant was put in  possession over the suit property only for
its proper care where she was
residing with her son, the defendant No. 2, who has thrown his bag and baggage from the suit property.
Therefore, the plaintiff has been constrained in filing the suit in the instant
nature.

The Supreme
Court held that the Source of acquisition of such property was supposed to be
seen before the general rules of succession would apply. Since in the present
case, the defendant no.2(Son) was outside the wedlock of the defendant no.1 and
the deceased father, in such a situation, the interest of defendant
no.1(deceased wife), who expired intestate, shall be reverted to her deceased
husband’s heirs by virtue of clause (b) of sub-section (2) of section 15 of the
Act of 1956. The property in question is admittedly not the self-acquired
property of the said defendant no.1(deceased wife), and therefore, the general
rules of succession defined in sub-section (1) of section 15 of the Act of 1956
would not be attracted. Consequently, her interest would be devolved upon her
deceased husband’s heirs, i.e., the plaintiff and his sister and, not from
heirs of the deceased wife’s first husband, i.e., the present appellant
Son(Defendant No.1), as per the provisions prescribed u/s. 15(2)(b) of the Act
of 1956.

18.  Land – Valuation of part of the building can
be made without the land attached to such building. [Land Acquisition Act,
1894; Sections 3, 23, 49]

State of Maharashtra and Ors. vs.
Reliance Industries Ltd. and Ors. AIR 2017 SUPREME COURT 4490

The question which arose for consideration
was whether, under the Land Acquisition Act, 1894 (the ‘Act’), acquisition of
Part of the building can be made without acquiring land underneath such
building.

The Supreme Court, while deciding the issue
of whether acquisition of any building or part thereof de hors the
underlying land or not, held that when land and building once married becomes
one unit, neither land nor building can thereafter be valued separately. The
expression “land” includes benefits to arise out of land and, things
attached to the earth or permanently fastened to anything attached to the
earth. But this would not come in the way of determining the valuation of a
particular floor, all the aspects of the owner’s interest and the bundle of
other rights can be taken into consideration including support provided by the
land and value of the land in the locality etc. Value of the part of the
building can also be accordingly assessed.

19.  Tenancy – Tenancy not to automatically get
terminated even though the property is forfeited [Smugglers And Foreign
Exchange Manipulators (Forfeiture Of Property) Act, 1976; Section 3]

Domnic Alex Fernandes (D) through L.Rs.
and Ors. vs. Union of India (UOI) and Ors. AIR 2017 SUPREME COURT 4007

The question for consideration was whether
tenancy of a property, ownership of which is acquired by a person to whom the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA) applied, would be treated as “illegally acquired property”
within the meaning of section 3(1)(c) of SAFEMA and can be subjected to
forfeiture under the provisions thereof, due to which the said tenancy would be
terminated.

The Supreme Court held that rights of a bona
fide tenant, not having any relation with the person to whom the provisions
of SAFEMA apply, will not stand automatically terminated by forfeiture of
property and vesting thereof in the Central Government. Such forfeiture will
extinguish the rights of the person to whom the Act applies i.e. the owner of
the property or his/her relative or associate having nexus with him/her in
relation to the said property.

20.  Will – Licence cannot be granted merely on
the basis of will, without being legal heir of manufacturer or partner in firm
– Legal Successor – Construed to be read in a restricted sense [Succession Act,
(39 of 1925) Section  63 ]

Dharam Chand vs. Dharam Paul and Ors. AIR
2017 JAMMU AND KASHMIR 138

The issue in the appeal was whether a
person’s name can be incorporated as a co-licensee since the person had
acquired the status of a legal successor-in-interest of the deceased licensee,
based on a will followed by a Probate and letter of administration, as granted
in his favour by a competent Court.

It was observed that a subsequent Circular,
dated 27.03.1971, provided that in case of an existing manufacturer or a
surviving partner of a licenced unit, besides his son(s), wife or wives may
also be admitted as additional partners. It was further decided that where a
manufacturer or a partner of the firm has no son(s) or wife, only his legal
successor(s) would be entitled to be admitted as partner(s) or additional
partner(s), as the case may be.

The Supreme Court held that the subsequent
Circular was to regulate the entry of other persons in the existing licensed
units so as to safeguard the legitimate interest of the successor-members of
the family of the existing manufacturers and to prevent mala fide
trading in such licences or their transfer to outsiders.

On the basis of the principle of ejusdem
generi, the word ‘legal successor’ had to be given a restricted meaning
bearing in mind the objective/basic policy behind issuance of the subsequent
communication to safeguard the legitimate interest of the successor-members of
the family of the existing manufacturer and to prevent mala fide trading in
such licences or their transfer to outsiders through backdoor methods, to mean
that person who is in some way related to the licensee and would succeed in the
absence of wife or son. _