Allied Laws

14.  Duty to Court – Advocates not to cite wrong judgments & mislead the Court – No excuse for lawyers for not cross-checking status of judgments – Task of an advocate is perhaps more onerous – Duty to the court, duty of fidelity to the law, if anything, it is higher now. [Principles of Law, Code of Ethics for Professionals]

Heena Nikhil Dharia vs. Kokilaben Kirtikumar Nayak NOTICE OF MOTION (L) NO. 3117 of 2016 (Bom) (HC) (unreported)

The learned judge has cited several instances where the learned counsel appearing for one of the parties cited judgements as being binding authority even though the said judgements had been overruled.

The learned Judge records with “profound sadness” that before pronouncing the judgement, he specifically asked the counsel whether he still maintained that the judgements cited by him were good law and that the counsel confirmed that he did and that both are binding precedents. “It was clear that Mr. Shah was completely unaware of the appeal court orders, and, too, the subsequent orders in Sajanbir Singh Anand,”

As Lord Denning MR in Randel vs. W. (1996) 3 All E. R. 657 observed:

“The Code which obligates the Advocate to disregard the instructions of his client, if they conflict with his duty to the Court, is not a code of law — it is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.”

The Judge made it clear that whatever may have been the position in the past, there is today no excuse for the casual and careless approach of Advocates given the fact that all judgements are available in online databases.

Conveying the message that, Don’t make the Court lose its way, the Court stated :

“Judges need the Bar and look to it for a dispassionate guidance through the law’s thickets. When we are encouraged instead to lose our way, that need is fatally imperilled,”

15.  Family – Does not include mother of unmarried deceased employee – Entire pension to be payable to widow of employee – However, the assets may be distributed amongst mother and widow, if employee died intestate [Employees Provident Fund and Miscellaneous Provisions Act, 1952; Section 6A – Family Pension Scheme, 1964; Cl. 4(ii)].

Nitu vs. Sheela Rani And Ors AIR 2016 SUPREME COURT 4552

The learned counsel appearing for the appellant-widow submitted that the appellant-widow is the only person who is entitled to the pension as per the provisions of the Family Pension Scheme. It was also submitted that pension is paid in pursuance of the afore-stated Scheme and therefore, pension cannot be treated as other assets of the deceased and according to the provisions of the Scheme, only the appellant-widow is entitled to the pension.

On the other hand, the learned counsel appearing for the respondent-mother submitted that she being a class-I heir of a Hindu of the deceased who died intestate, she is entitled to one-half share of the properties of the deceased, as he was survived by his widow and the mother.

The learned counsel appearing for the State supported the case of the appellant-widow and submitted that in the Scheme, the term “family” has been defined and in the instant case, the widow of the deceased is the only person who is entitled to pension and therefore, the impugned order deserves to be quashed and set aside so that the entire amount of pension can be paid to the appellant.

Clause 4(ii) of the Scheme defines the term “family”, which reads as under :-

4(ii). “Family” for the purpose of this scheme includes the following relatives of the officer:-

–    wife, in the case of a male officer;

–    husband, in the case of a female officer;

–    minor sons;

–    unmarried minor daughters;

–    widowed/legally divorced daughters; and the parents of an unmarried officer.”

So far as the respondent mother is concerned, she has not been included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family and therefore, the respondent mother would not be included in the family of deceased as he was married.

So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of the deceased are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but the position in this case, with regard to pension, is different.

16.  Legal Practitioners – Publicity for Judges and Legal Practitioners must not be encouraged – Amounts to breach of Professional Ethics and Professional Conduct – Only the name of High Court should be used by Print Media and not the names of Judges or the legal Practitioners. [Constitution of India – Art 217, Advocates Act, 1961, Section 35; Law Reports Act, 1875, S.4]

S. Baskar Mathuram vs. The State of Tamil Nadu and Ors. AIR 2016 MADRAS 178

The whole basis for seeking extravagant reliefs through filing a Writ Petition appears to be an act of obtaining gaining popularity and publicity, so that the law practitioner filing such a writ, could attract more number of clients.

Such a practice would amount to an unethical practice of soliciting one’s work. If the code of conduct prescribed by the Bar Counsel is not adhered to, whether directly or indirectly, it must attract corrective actions.

Hence, the Registrar was directed to initiate necessary action for breach of Code of Ethics and Professional Behaviour.

The court also directed the Registrar (Administration) to request the Print, Electronic and Media House, not to publish the individual names of the Judges, unless it is so essentially required. The reason being, every Judge of the High Court is carrying on with his work sitting in a particular division/roster as assigned by the Hon’ble Chief Justice. The Judges do perform their duties dispassionately and to the extent possible by not allowing their individual notions and philosophies to be a guiding factor in deciding the causes brought before them. Therefore, we feel that the names of the Judges should not be published and on the other hand, the name of the High Court alone should be published.

17.  Limitation on filing suit – Suit instituted within 3 years of attaining majority – Not barred by limitation – Plaintiffs even though majors were not managers/karta of Joint family – Not capable of discharging without concurrence of other members of the family [Hindu Minority and Guardianship Act, 1956; Section 8, Limitation Act, 1963; Section 7, Constitution – Article 60, 109, 110, 113]

Narayan vs. Babasaheb and Ors. AIR 2016 SUPREME COURT 1666

The Hon’ble Court was of the considered opinion that a quondam minor Plaintiff challenging the transfer of an immovable property made by his guardian in contravention of section 8(1)(2) of the Hindu Minority and Guardianship Act 1956 which states the powers of a natural guardian, and who seeks possession of property can file the Suit only within the limitation prescribed under Article 60 of the Limitation Act and Articles 109, 110 or 113 of the Limitation Act are not applicable to the facts of the case.

In view of the above discussion, the limitation to file the present Suit is governed by Article 60 of the Limitation Act and the limitation is 3 years from the date of attaining majority. When once the Court arrives at a conclusion that Article 60 of the Act applies and the limitation is 3 years, the crucial question is, when there are several Plaintiffs, what is the reckoning date of limitation?

A reading of section 7 of the Limitation Act, 1963, makes it clear that when one of several persons who are jointly entitled to institute a suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge.

In the case on hand, the 1^st Plaintiff was 20 years old, the 2^nd Defendant was still a minor and the Plaintiffs 3, 4 and 5, who are married daughters, were aged 29, 27 and 25 respectively on the date of institution of the Suit in the year 1989. As per Explanation 2 of section 7 of the Limitation Act, 1963, the manager of a Hindu undivided family governed by Mithakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In this case, Plaintiffs 3 to 5 though major as on the date of institution of Suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the manager or Karta of the joint family.

The 1^st Plaintiff was 20 years old as on the date of institution of the Suit and there is no evidence forthcoming to arrive at a different conclusion with regard to the age of the 1^st Plaintiff. In that view of the matter, the Suit was instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Limitation Act.

Hence, in view of the above discussion, the Court held that the appeal was devoid of merits and it deemed it appropriate to dismiss the appeal.

18.  Registered Document – Operates from date of its execution – Not from the date of its Registration  [Registration Act, 1908; Section 47]

Principal Secretary, Government of Karnataka and Ors. vs. Ragini Narayan and Ors. AIR 2016 Supreme Court 4545

One of the Disputes which arose was with respect to the date from which the document is said to start to operate when the document registration was on a date subsequent to date of execution.

It was contended that the Deed of Nomination dated 16.01.1995 was not a valid document. It was pointed out that the amended deed based on Resolution dated 10.12.1994 was not registered, by the date 16.01.1995 as the registration is said to have been done only on 30.01.1995. As such, delegation of power in favour of the Plaintiff on 16.01.1995 is not valid. It was vehemently argued that since the amendment registered on 30.01.1995 was a non-starter as such the same was non-effective.

Section 47 of Registration Act, 1908 reads as under:

Time from which registered document operates. – A registered document shall operate from the time at which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.