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Category: Allied Laws

Allied Laws

5. Jagadeesan and others vs. A. Logesh
AIR 2023 MADRAS 94
Date of order: 11th November, 2022

Registration – Unregistered agreement to sell – Non-registration is not a bar from specific performance [Registration Act, 1908, Section 17(1)(g), 49; Specific Relief Act, 1963, S. 20]

FACTS

The Plaintiff/Respondent filed a suit for the specific performance of a contract based on an unregistered agreement of sale before the District Court.

The Defendants/Petitioners challenged the maintainability of the said suit since the same was based on an unregistered sale agreement.

Hence the present petition.

HELD

In view of the express provision contained in section 49 of the Registration Act, the suit cannot be rejected on the grounds that the agreement is unregistered as per section 17 (1)(g) of the Registration Act and section 2(g) of the Contract Act. The Court referred to the decision in the case of D. Devarajan vs. Alphonse Marry & another reported in 2019 (2) CTC 290 in which it was held that the consequence of non-registration does not operate as a total bar to look into the contract. The Proviso to Section 49 of the Registration Act itself carves out two exceptions: (i) it can be used for any collateral purposes, and (ii) it can be used as an evidence in a suit for specific performance”.

In view of the above the petition was dismissed.

6. Parish Priest, Kanyakumari vs. State of Tamil Nadu
AIR 2023 MADRAS 70
Date of order: 3rd January, 2023

Gift deed – Absolute gift – failure to fulfil the purpose – In absence of revocation clause – Gift cannot return to the donor. [Transfer of Property Act, 1882, Section 126]

FACTS

The Petitioner-Church established a cooperative society in 1981 for the economic and social development of poor and gifted a piece of land to the Society. The State Government put up a shed on the said land with their own funds. The land continued to be in the possession of the church. However, with technical advancement in the field of textiles, society became redundant and was wound up in 2006.

After several requests to the State Government to reconvey the land, the Church filed a Writ in 2014. The Court directed the Respondents to consider the representation and pass orders. The Respondent rejected the application of the Church.

Hence the present Petition.

HELD

The Gift deed of 1981 was an absolute gift deed i.e., without any conditions. Therefore, the gift cannot be revoked on the objects becoming redundant. Further, the donor will not have any right to make a claim for the return of the gifted land on the failure of the purpose for which it was gifted.

The Petition was dismissed.

7. Union of India vs. Maheswari Builders, Rajasthan
AIR 2023 MADRAS 73
Date of order: 3rd  January, 2022

Arbitration – Setting aside arbitral award – Award passed after considering all the facts – No interference required.  [Arbitration and Conciliation Act, 1996, Section 34; Contract Act, 1872, 63]

FACTS

The Respondent was engaged by the Petitioner to carry out civil construction work. The Respondent requested an extension of time for completing certain phases of the project as per their contract and the same would be granted. An issue arose between them with respect to the claims made by the Respondent and the Respondent invoked the arbitration clause.

Before the Arbitration Tribunal, after making its claims, the Respondent vide an affidavit withdrew from the arbitration and submitted before the Arbitration Tribunal that the affidavit was submitted under the pressure of the Petitioner on a promise for an extension of time. The Tribunal on considering all the facts passed an order allowing some of the claims of the Respondent.

The award was challenged.

HELD

The award was challenged on the grounds that the Arbitration proceedings should not have proceeded when both the parties had withdrawn from the Arbitration. It was held that the Arbitrator was economical with reasons in support of the order. As the affidavit was not given under free consent, the same cannot be considered as it amounts to coercion. The award was passed after considering all the facts of the case.

The Application is dismissed.

8. Shri Ram Shridhar Chimurkar vs. Union of India and another
AIR 2023 SUPREME COURT 618
Date of order: 17th January, 2023

Succession – Pension – Government employee – Adoption after death by the spouse – Not a family member [Central Civil Services (Pension) Rules, 1972, R. 54, Constitution of India]

FACTS

In the instant case after the death of a retired government employee, his widow adopted a son. The adopted son claimed that they were entitled to family pension payable to the family of the deceased government employee. On the rejection of his plea, the appellant filed an application before the Central Appellate Tribunal. The Tribunal allowed the application and directed the Respondents to consider the Appellant’s claim for family pension by treating him as the adopted son of the deceased government employee directing the Respondents to consider the plea of the appellant.

On a Writ Petition, the Hon’ble High Court reversed the order of the Tribunal. Hence the present appeal.

HELD

The Supreme Court considered provisions of the Hindu Adoptions and Maintenance Act, 1956 (HAMA Act). It highlighted that the provisions of the HAMA Act determine the rights of a son adopted by a Hindu widow only vis-à-vis his adoptive family. Rights and entitlements of an adopted son of a Hindu widow, as available in Hindu Law, as against his adoptive family, cannot axiomatically be held to be available to such adopted son, as against the government, in a case specifically governed by extant pension rules. It held that Rule 54 (15)(b) of the Central Civil Services (Pension) Rules, 1972 states that a legally adopted son or daughter by a government servant would be entitled to a family pension. The phrase “in relation to” would be vis-à-vis the Government servant and not his widow.

The appeal is dismissed.

9 GM Heights LLP vs. Municipal Corporation of Greater Mumbai and Ors
WP No. 5303 of 2022 (Bom)(HC) (UR)
Date of order: 29th March, 2023

Tenancy – Tenants – limited rights – Cannot dictate the terms of redevelopment. [Mumbai Municipal Corporation Act, 1888, Section 354, Development Control and Promotion Regulations for Greater Mumbai, R. 33(19), 33(7)(A) ]
 
FACTS

The Petitioner is an LLP and the owner of the land. There was a building standing on the land, which had 21 tenants. The building had some commercial tenements and some  residential tenements. The building had become dilapidated. A notice was issued by the respondent-Municipal Corporation of Greater Mumbai to the owners/occupants under Section 354 of the Mumbai Municipal Corporation Act, 1888. The building ultimately was demolished in August 2021.

The petitioner, in these circumstances, proposed to undertake redevelopment so as to construct a commercial building, which according to the petitioner was permissible as per the rules.

Out of 21 tenants, one tenant (respondent no. 3) objected to the permanent alternate accommodation. The petitioner approached the Court primarily on the grounds that respondent no.3 who is only one tenant out of the majority of the 21 tenants, cannot obstruct the redevelopment in such condition as inserted in the Intimation of Disapproval  (IOD) by the Municipal Corporation.

HELD

Respondent no.3 is not entering into an agreement for an alternate accommodation with the petitioner and thereby is stalling the entire redevelopment. The approach of respondent no.3 in the present case is most unreasonable and adamant. Respondent no.3, in fact, by his obstinate conduct is stalling the entire redevelopment, which he certainly cannot do. Respondent no.3 in his capacity as a tenant has limited rights. Respondent No.3 within the ambit of such rights cannot dictate to the petitioner-owner, as to the nature of redevelopment. Recognising such rights would, in fact, take away and/or obliterate the legal rights of the owners of property to undertake redevelopment in a manner as may be permissible in law, including under the Development Control and Promotion Regulations. Thus, tenants cannot take a position to foist, dominate and/or dictate to the owner the nature and the course of redevelopment the owner desires to have. The rights of the owners of the property to undertake redevelopment of the manner and type they intend, cannot be taken away by the tenants, minority or majority. Tenancy rights cannot be stretched to such an extent that the course of redevelopment can be taken over by the tenants, so as to take away the basic corporeal rights of the owner of the property, to undertake redevelopment of the owner’s choice. The only rights the tenants have would be to be provided with an alternate accommodation of an equivalent area occupied by them before the building was demolished.

The Petition was allowed.

Allied Laws

1 Senior Superintendent, Deptt. of Post and others vs. Bundu and Another
AIR 2023 Allahabad 33
Date of order: 30th November, 2022

Speed post – Lost articles – Department does not have immunity – Order of Lok Adalat awarding cost – valid. [Legal Services Authorities Act, 1987; Post Office Act, 1898, Section 6]

FACTS

The Department of Post preferred a Writ Petition against an order of the Lok Adalat where compensation of Rs. 4,500 was awarded on account of the loss of articles through speed post.

HELD

It was held that speed post services were introduced 88 years after the enactment of the Post Office Act, 1898 and hence weren’t covered within the ambit of immunity under section 6 of the Post Office Act, 1898.

It was also held that the Lok Adalat had valid jurisdiction to award such compensation. Further, it was remarked that the Department should refrain from litigating such small issues where the cost of litigation is higher than the amount involved.

2 Sridhar Balkrishna and others vs. Evaristo Pinto and others
AIR 2023 (NOC) 75 (BOM)
Date of order: 4th January, 2022
 
Registration – Compulsory registration – Non-mentioning of composition deed – Not exempted from registration. [Registration Act, 1908. Section 17 (1), 49]

FACTS

The Respondents/Original Plaintiffs, filed the suit in 1983 for partition of the suit property and praying for allotment of 1/3rd share in an immovable property. The Plaintiff had purchased an undivided 1/3rd share of the property from his vendor by a registered sale deed. In the plaint itself, it was stated that the Plaintiff,Original Defendant No.1 and his wife the Original Defendant No. 2, had agreed on the division of the property, but the said agreement was signed only by Original Defendant No 1, while his wife did not sign the same. It was also stated in the plaint that the said agreement was never presented for registration before the office of the Sub-Registrar. The said agreement was entered into on 17th July, 1980, but according to Plaintiff, it was never acted upon. On this basis, the Plaintiff sought the decree of partition and allotment of 1/3rd share in the property, which would include the residential house occupied by him.

The trial court allowed the decree to the plaintiffs. The appellate court dismissed the appeal of the appellants. On the second appeal.

HELD

A perusal of the agreement dated 17th July, 1980 shows that there is a reference made to the property in question and it is specifically recorded that from the date of the agreement, a specific division of the property shall stand exclusively allotted to the Original Plaintiffs and they shall be entitled to possession of the same. The said document did not reduce in writing any settlement or an arrangement arrived at in the past, to exempt it from the mandatory requirement of registration under the provisions of the Registration Act.

Once it is found that the said document was compulsorily registrable under section 17(1)(b) of the Registration Act, the effect of non-registration under section 49 of the said Act must follow. In this regard, the attempt made on behalf of the Appellants to wriggle out of the mandatory requirement of section 17(1)(b) of the Registration Act, by claiming that the agreement dated 17th July, 1980, was a composition deed, cannot be accepted. A perusal of the agreement dated 17th July, 1980, does not give any indication that it was a composition deed and that under section 17(2)(i) of the Registration Act, it could be said to be exempt from the applicability of section 17(1)(b) of the said Act.

The Appeal was dismissed.

3 D. T. Rajkapoor Sah thru LRs. and others vs. Kamakshi Bai and others
AIR 2023 (NOC) 78 (MAD)
Date of order: 30th November, 2022

Succession – Hindu Undivided Family – Daughters and sisters are coparceners – Entitled to an equal share in property and profits [Hindu Succession Act, 1956, Section 6A]

FACTS

The grandfather of the Plaintiffs and Defendants purchased the suit property.  The father of the Plaintiffs and Defendants received the said property vide partition deed dated 7th March, 1964. The father died intestate on 30th May, 2000.. The four sisters (Plaintiffs) filed the present suit for partition for partitioning the suit property and allotment of 4/7th (1/7th each) shares to them against their three brothers (Defendants).

The trial court allowed the partition in favour of the sisters. On appeal.

HELD

The separate property once thrown into the coparcenary stock, then by virtue of Doctrine of Blending, it also becomes the coparcenary property. If self-acquired property was made available for partition along with joint family property, that itself is a proof of blending. By the doctrine of blending the suit property loses its characteristic as separate property and the coparcener loses his/her claim against it. In light of the amendment in the amendment in the Hindu Succession Act in 2005 and the decision of the Hon’ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma 19 (2020) 9 SCC 1, the rights of the daughters are made equivalent to that of the son. The amendment is held to be retroactive and by their birth, the Plaintiffs also got the same rights in the coparcenary property and since the property of the father was not partitioned until the suit was filed in 2013, the property will be available to all seven coparceners.

The appeal was dismissed.

4 Kavita Kanwar vs. Pamela Mehta and Others
(2021) 11 SCC 209
Date of order: 19th May, 2020

Will – Legitimate suspicion – Several instances of suspicion – Probate was denied. [Indian Succession Act, 1925, Sections 61, 62, 63, 73, 111; Evidence Act, 1872, S. 68]
 
FACTS

The Will of Amarjeet Mamik (mother) was dated 20th May, 2006, and she expired on 21st May, 2006, leaving behind two daughters and one son. The properties in question were received by her from her father vide Will dated 14th February, 2001.

The father during his lifetime on 25th January, 2001, gifted the ground floor of the property to Kavita Kanwar (The appellant) whereas the first floor and other portions came to the testatrix. Pamela Mehta (Respondent No. 1) was the elder and widowed daughter of the testatrix who was living with her unmarried daughter on the first floor and also taking care of the testatrix. The son of the testatrix, Col. (Retd.) Prithviraj Mamik (Respondent No. 2) was bequeathed the ‘credit balance’ lying in the bank accounts with a clarification that he shall not inherit any portion of the immovable assets of the testatrix.

The appellant being the executor, filed for  probate which was challenged. The Trial Court  declined to grant probate on the grounds of  suspicion. The High Court upheld the views of the Trial Court.

HELD

The Supreme Court took into consideration facts such as the executor being a major beneficiary, the son and another widowed daughter not included in the execution of the will, only the presence of the appellant executor at the time of the execution of the will, unexplained unequal distribution of property, manner and language of the will, unreliable witnesses, etc..

Held that, before entering into the provisions of law and judgements it is important to understand the facts surrounding the will. Therefore, taking into consideration all the circumstances surrounding the Will, the order of the High Court refusing the probate was upheld.

The appeal was dismissed.

Allied Laws

51 Mandira Paul and another vs.

Maya Rani Dev and another

AIR 2023 GAUHATI 4

Date of order: 11th November, 2022

Wills – Suspicious circumstances surrounding the Will – Propounder failed to establish the genuineness – Probate rejected. [S. 273, 270, 63, Indian Succession Act, 1925; S. 68 of Indian Evidence Act, 1872]

FACTS

The Plaintiff instituted a suit seeking probate of her mother’s will where she was appointed as the executor. A deity was impleaded as the Petitioner No. 2. Her two sisters were impleaded as opposite parties. According to the will, the three daughters and the deity were each entitled to 1/4th share in the property.

The District Court dismissed the suit on several grounds such as non-mentioning the date of death, tampering with the will and lack of confirmation if it was the last will.

On appeal to the High Court

HELD 

The onus to prove the due execution of the will is on the propounder. The evidence brought on record must be credible and inspire confidence and the same cannot be assumed to be satisfied by mere mechanical compliance.

As there are several instances which bring doubt on the genuineness of the will, the same cannot be ignored by the Court. As the testatrix has failed to discharge the onus of proof regarding the genuineness of the will, the decision of the lower Court is upheld.

The appeal was dismissed.

52 Neeraj Garg vs. Sarita Rani and others

(2021) 9 SCC 92

Date of order: 2nd August, 2021

Judiciary – Cannot pass remarks on the counsel – The same has no bearing on the process of adjudication – Can affect the career and repute of counsels.

FACTS

The Appellant is a practicing lawyer before the High Court of Uttarakhand with around 17 years of experience. The High Court in its order passed certain remarks on the lawyer regarding his conduct without giving him an opportunity of being heard.

On an appeal to the Supreme Court on this limited issue.

HELD 

The conduct of an advocate has no bearing on the process of adjudication. Further, no opportunity was given to the counsel for his explanation. Such remarks cast an apprehension on the professional integrity of the advocate and it will adversely impact his professional career. The offending remarks are to be recalled to avoid future harm.

The appeal was accordingly disposed of.

53 UOI vs. Manraj Enterprises

(2022) 2 SCC 331

Date of order: 18th November, 2021

Arbitrator – Creation of a contract – Powers – Cannot award interest which is contrary to the contract. [S. 31, 28, 34, Arbitration and Conciliation Act, 1996]

Appearing Counsels – Cannot provide concession which is contrary to law – No estoppel against the Law.

FACTS

On account of a dispute between the Union of India and a contractor, the issue was referred to Arbitration. The Sole Arbitrator passed an award wherein, pendente lite and future interest was also prescribed.

The Union of India preferred an appeal before the High Court (Single Bench) on the issue of interest. The Single judge of the High Court dismissed the appeal. The Division Bench also dismissed the appeal of the Union of India.

On an appeal to the Supreme Court.

HELD

The Arbitrator is a creation of a contract. The Arbitrator cannot award interest if the same is contrary to the terms of the contract between the parties.

Further, if any concession is proposed by the Counsel and the same is contrary to the law, it cannot bind the parties. There can be no estoppel against the law.

The appeal was accordingly allowed.

54 Sri Ganesh Sai Granites and Minerals vs. Commissioner and Inspector General

AIR 2023 (NOC) 14 (AP)

Date of order: 25th August, 2022

Partnership – Issue raised before the Registrar of Firms – Registrar is duty-bound to look into the complaint and act on it. [S. 64, Partnership Act, 1932]

FACTS

A dispute arose between the partners of a partnership firm. It was claimed that one of the partners had forged the signatures of the other partners and created a deed of reconstitution of the Firm. The said deed was registered before the Registrar of the Firms.

One of the partners filed a complaint before the Registrar of Firms explaining the details, requesting the registrar not to act on the reconstitution deed filed before it and to rectify the same.

There was no enquiry or rectification done by the Registrar of Firms.

On a Writ Petition.

HELD

As per section 64 of the Indian Contract Act, 1932 and State Rules thereof, the partners are entitled to approach the Registrar of Firms to ascertain the correct facts. The Registrar is duty-bound to conduct an enquiry and pass necessary orders. Refusal or inaction by the Registrar is not proper. The Registrar of Firms is directed to conduct an enquiry as per the complaint.

The petition was accordingly allowed.

55 Jagdish Gotam vs. State of Madhya Pradesh and others

AIR 2023 (NOC) 19 (MP)

Date of order: 22nd July, 2022

Senior Citizen – Seeking urgent relief – Right to live with dignity – Alternate Remedy not to be applied strictly – Writ Petition allowed. [Article 21, 226, Constitution of India]

FACTS

The Petitioner claimed to be the owner of a house situated at Jabalpur based on a registered sale deed. He was living with his wife. He allowed his son and daughter-in-law to live with him.

On account of matrimonial disputes between his son and his daughter-in-law, his son left the house. The daughter-in-law ousted the petitioner and his wife from the house.

On a Writ Petition for recovery of vacant possession of his self-acquired property.

HELD

The objections raised by the daughter-in-law (Respondent No. 4) are that there is an alternative remedy available under the provision of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and she denied any harassment.

As per Article 21 of the Constitution, every citizen has the right to live with dignity. In such a case it would not be appropriate for a senior citizen to go through the statutorily prescribed alternate remedy. The rule of alternate remedies should not be strictly applied.

The daughter-in-law and her children are to be evicted from the premises and a vacant possession is to be handed over to the Petitioner.

The petition was accordingly allowed.

Allied Laws

20 Jagrutiben Dharmeshbhai Suhagiya – Appellant
AIR 2023 Gujarat 86
Date of order: 13th January, 2023

Succession – Natural Guardian – to sell the property of minor – Property in question is an undivided share in the joint family property – Out of the purview – No permission of the Court required to sell. [S. 8, Hindu Minority and Guardianship Act, 1956 (Act)]

FACTS

The appellant (Jagrutiben Suhagiya) lost her husband. The appellant, being in dire need of the funds for the education of her children wished to sell the undivided share of the property of the minors. For this purpose, the appellant filed an application before the Additional Sessions Judge, wherein the appellant’s application was partly allowed, granting guardianship and rejecting the permission to sell the share in the joint family property. Aggrieved by the same, the appellant filed appeal before the Hon’ble Gujarat High Court. The fundamental question before the Bench was whether the restriction in section 8 of the Act, i.e., requirement of approval of the Court for alienating immovable property is applicable to a minor’s undivided share in a joint family property or not.

HELD

Relying on the case of Krishnakant Maganbhai vs. State of Gujarat (1961 FLR 108), the Court held that the requirement of obtaining permission before alienating the property of a minor would not apply in respect of an undivided interest in the joint family property. The Hon’ble Court further held that the concept of guardian is out of the purview of section 8 of the Act with respect to an undivided interest in a joint family property. The Manager or the Karta of the joint family could also alienate the property without acquiring any permission.

The appeal was allowed.

21 A. Wilson Prince v. Nazar and others
AIR 2023 Supreme Court 2384
Date of order: 15th May, 2023

Will – Probate granted on 29th July, 1972 – Application by an alleged beneficiary for the supply of a copy of the will in 2016 – Records either destroyed under the Destruction of Records Act, 1917 or returned to the executor – No dispute regarding bequeathment of the deceased’s property till date from anyone – Person allegedly claiming to be the beneficiary never saw the will – High Court justified in refusing to grant any relief. [Indian Succession Act, 1925]

FACTS

Rev. Salusbury Fynes Davenport (testator) executed a will in the year 1969. The executor had applied for probate which was granted in the year 1972. In 2016, Mary Brigit (original petitioner) allegedly claiming to be a beneficiary, applied for a copy of the probate. The District Court filed a counter affidavit in the High Court of Madras stating that it was an old matter and the record may have been destroyed under the Destruction of Records Act, 1917 or returned to the executor. The executor claimed to have not found any trace of the document. Subsequently, the petitioner Wilson Prince (successor of the original petitioner) filed an SLP in the Supreme Court.

HELD

The Hon’ble Supreme Court held that since the original writ petitioner had never seen the copy of the will and was not aware of the contents of the same, on mere guesswork, the Court could not grant any relief to the petitioner. Subsequently, the Hon’ble Court dismissed the Special Leave Petition with no costs.

22 Canara Bank, Mullakkal v. Sachin Shyam
2022 SCC OnLine Ker 6934
Date of order: 19th December, 2022

Possession of Secured Assets – The right of possession of the Tenant with respect to Secured Assets – Creditor entitled to possession. [Section 14, Section 17, and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI); Section 107, Transfer of Property Act, 1882]

FACTS

The petitioner, a secured creditor in respect of a loan availed by the 1st respondent, brought to sale an item of property in which the 3rd respondent claims to be a tenant under the provisions of the SARFAESI Act. The 4th respondent had purchased the property. The application filed by the petitioner under section 14 of the SARFAESI Act for obtaining vacant possession of the property was rejected by the learned Magistrate, finding inter alia that the provisions in the SARFAESI Act cannot defeat the rights of the tenant. The learned Magistrate had concluded that the tenancy had been created much before the creation of the mortgage, and therefore, such tenants cannot be evicted by resorting to proceedings under Section 14 of the SARFAESI Act.

Hence, the present appeal.

HELD

In light of the judgement of the Supreme Court in the case of Balkrishna Rama Tarle vs. Phoenix ARC Pvt. Ltd. [(2023) 1 SCC 662] the Court held that the order of the learned Magistrate cannot be sustained. The 3rd respondent has no case that any proceeding initiated by the petitioner under section 14 of the SARFAESI Act had been challenged by the 3rd respondent in proceedings before the Debts Recovery Tribunal under section 17 of the SARFAESI Act.

Court further held that in the absence of a registered document the tenant was not entitled to possession of secured assets for a period exceeding the limit prescribed under section 107 of the Transfer Property Act. The creditor had the right to take actual possession of the secured asset even after the transfer of title to an auction purchaser.

Order of the Chief Judicial Magistrate was quashed.

Allied Laws

23. Ashok Kumar Joshi vs. Achlaram Bhargava Joshi
AIR 2023 Rajasthan 97
27th March, 2023

Maintenance of parent — Father living on pension since 2008 — Father unable to maintain himself — Son bound to maintain. [Section 4, Maintenance and Welfare of Parents and Senior Citizens Act, 2007].

FACTS

The Petitioner (Ashok Kumar Joshi – son) was the eldest son of the Respondent (Achlaram Bhargava Joshi – father). The Respondent was working in the department of B.S.N.L. until his retirement in 2008. Thereafter, the Respondent was living off of pension and other rental income. The Petitioner and Respondent were staying together till 2013. The Respondent was unable to maintain himself, and hence, he filed an application for maintenance from his eldest son (the Petitioner) in 2018. The lower court held that the Petitioner was bound to maintain the Respondent and directed the Petitioner to maintain the Respondent by paying a monthly sum.

The Petitioner – Son preferred a Writ Petition before the High Court.

HELD

The Hon’ble Court observed that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, was a special legislation enacted to safeguard the rights and interests of a vulnerable section of the society, i.e., senior citizens. It held that the eldest son was bound to pay monthly maintenance to his aged father (Respondent) for expenses towards his food, medical and other requirements. Thus, the order of the lower court was upheld.

The Petition was dismissed.

24. Public Works Department, Chennai vs. East Coast Constructions & Industries Ltd
AIR 2023 Madras 188
2nd February, 2023

Arbitration — Powers to award compensation and interest by the Arbitral Tribunal [Sections 7 & 34, The Arbitration and Conciliation Act, 1996; Section 74, The Indian Contract Act, 1972].

FACTS

The Petitioner and the Respondent agreed to the construction of a new complex for the Tamil Nadu Legislative Assembly. The Respondent was unable to complete the construction in time due to the faults of the Petitioner. The Petitioner had granted an extension of time without any objections to the Respondent. Later on, the Petitioner denied a refund of liquidated damages and also consequential damages to the Respondent. The Petitioner denied payments towards consequential damages.

On Arbitration, the Arbitral Tribunal awarded compensation and interest. The Petitioner is aggrieved that the Arbitration Tribunal was not authorised to grant the same as there was no authorisation between the parties in the contract to decide any dispute ex aequo et bono (Section 28 of the Arbitration and Conciliation Act, 1996).

HELD
The Arbitral Tribunal is empowered to award interest in the form of compensation if such has been agreed by the parties. However, in the absence of such agreements, the Arbitral Tribunal can award interest to the extent of delay in payment of money in the form of compensation. Thus, the Court upheld the order of the Arbitration Tribunal awarding consequential damages.

The Petition was dismissed.

25. Mohan Sundaram vs. Punjab National Bank
AIR 2023 Kerala 110
12th December, 2022

Tenancy — Tenanted Property is mortgaged — Unable to repay — Tenanted property is a secured asset- Bank entitled to evict a tenant — Bank held as a public institution. [Section 8, Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; Sections 5, 6 & 9, Banking Regulation Act, 1949;
Section 13, Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (SARFAESI)] .

FACTS
The tenants of five premises facing eviction petitions under section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965, initiated by a single landlord (Respondent Bank) in a commercial complex, are the petitioners in the revision case. The Petitioners contested that the Respondent cannot be said to be a public institution within the scope of section 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The second contention of the Petitioner was whether the Bank had locus standi as a landlord to seek eviction of tenants from a secured asset taken over by the bank for sale for realising its dues.

HELD
The Hon’ble Kerala High Court held that the Bank (Respondent) was established under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The statute was enacted in the parliament for serving the needs of the development of the economy in conformity with the national policy and objectives and for matters connected therewith or incidental thereto. Thus, the Respondent Bank was a public institution within the scope of section 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The court held that according to section 17 of the SARFAESI, the Respondent Bank is empowered to take possession of the secured assets including the right to transfer by way of lease, assignment or sale for realising the secured asset. The Hon’ble Court upheld the decision of the lower court; thereby, evicting tenants from the property.

The revision petition was dismissed.

26. K N Ravindran and another vs. G Venkatesh Suresh and others
AIR 2023 Madras 222
27th January, 2023

Suit for partition — Property purchased jointly by relatives for conducting business — Business conducted by a Firm — Retirement from the firm does not amount to relinquishment of interest in the property. [Section 34, Specific Relief Act, 1962; Sections 17 & 49, Registration Act, 1908; Section 35, Stamps Act, 1899].

FACTS
The Original Plaintiff (Respondent 1), the Appellants and other Respondents had purchased the suit property to start a business. The parties are relatives of one another. After some time of running the business through a firm, issues cropped up, which led to Defendants 3–5 (Respondents) and the Original Plaintiff (Respondent 1) retiring from the partnership firm. Defendants 1 and 2 (appellants) were the remaining partners of the firm.

The Original Plaintiff and the Defendants 3–5, relinquished all their shares of the firm to the Defendants 1 and 2. Later, the Original Plaintiff, as the co-sharer of the suit property, filed for a partition suit of the property in the Trial Court.

The Trial Court held the partition in favour of the Plaintiff. The Original Defendants 1 and 2 filed an appeal.

HELD
The Plaintiff and the Defendants 3–5 relinquished all their rights concerning shares in a firm in the deed. However, the rights and title of the suit property were not relinquished by the deed. Furthermore, the family agreement (relied on by appellants) was not properly stamped and registered. Thus, the same was invalid in the eyes of the law. Thus, the decree of the Ld Trial Court declaring the partition of property in the favour of the Plaintiff was confirmed. No costs.  

ALLIED LAWS

1 Dr. A. Parthasarathy and Ors. vs. E Springs Avenues Pvt. Ltd. and Ors.
SLP (C) Nos. 1805-1806 of 2022 (SC)
Date of order: 22nd February, 2022
Bench: M.R. Shah J. and B.V. Nagarathna J.Arbitration – High Court has no jurisdiction to remand matter to same Arbitrator – Unless consented by both parties. [Arbitration and Conciliation Act, 1996 S. 37]

FACTS

The Appellants challenged the judgment and order passed by the High Court in exercise of power u/s 37 of the Arbitration and Conciliation Act, 1996, wherein the High Court set aside the award passed by the Ld. Arbitrator and remanded the matter to the same Arbitrator for fresh decision.HELD

As per the law laid down in the case of Kinnari Mullick and Anr. vs. Ghanshyam Das Damani (2018) 11 SCC 328 and I-Pay Clearing Services Pvt. Ltd. vs. ICICI Bank Ltd. (2022) SCC OnLine SC 4, only two options are available to the Court considering the appeal u/s 37 of the Arbitration Act. The High Court either may relegate the parties for fresh arbitration or consider the appeal on merits on the basis of the material available on record within the scope and ambit of the jurisdiction u/s 37 of the Arbitration Act. However, the High Court has no jurisdiction to remand the matter to the same Arbitrator unless it is consented by both the parties that the matter be remanded to the same Arbitrator.The appeal was allowed.

2 Horticulture Experiment Station Gonikoppal, Coorg vs. The Regional Provident Fund Organization
Civil Appeal No. 2136 of 2012 (SC)
Date of order: 23rd February, 2022
Bench: Ajay Rastogi J. and Abhay S. Oka J.

Labour Laws – Compliance – Default or delay in payments – sine qua non for levy of penalty – mens rea or actus rea not essential. [Employees Provident Fund and Miscellaneous Provisions Act, 1952, (Act) S. 14B]

FACTS

The establishment of the Appellant(s) is covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, (Act). The Appellant(s) failed to comply with the provisions of Act from 1st January, 1975 to 31st October, 1988. For non-compliance of the mandate of the Act, proceedings were initiated u/s 7A of the Act and dues towards the contribution of EPF for the intervening period were assessed by the competent authority, and after adjudication, that was paid by the Appellant to the office of EPF. Thereafter, the authorities issued a notice u/s 14B of the Act to charge damages for the delayed payment of the provident fund amounts which were levied for the said period.The High Court, under the impugned judgment, held that once the default in payment of contribution is admitted, the damages as being envisaged u/s 14B of the Act are consequential, and the employer is under an obligation to pay the damages for delay in payment of the contribution of EPF u/s 14B of the Act, which is the subject matter of challenge in the present appeals.

HELD

Taking note of three-Judge Bench judgment in the case of Union of India and Others vs. Dharmendra Textile Processors and others [2008] 306 ITR 277 (SC), the apex Court held that that any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages u/s 14B of the Act and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.The appeal was dismissed.

3 Arunachala Gounder (Dead) by Lrs. vs. Ponnusamy and Ors.
AIR 2022 Supreme Court 605
Date of order: 20th January, 2022
Bench: S. Abdul Nazeer J. and Krishna Murari J.

Succession – Intestate – Daughters of a Hindu male – Entitled to self-acquired and other properties obtained by their father in partition. [Hindu Succession Act, 1956, S. 14, S. 15]

FACTS

The property under consideration belonged to a person who had two sons, namely, Marappa and Ramasamy. Marappa had one daughter, namely, Kuppayee Ammal, who was issueless, and once she died, property devolved on legal heirs of Ramasamy, who predeceased his brother.The suit for partition was filed by one of the daughters of Ramasamy. Ramasamy had one son and four daughters, one of the daughters amongst these was deceased. The petitioner is the daughter claiming 1/5th share in the suit property on the basis that the plaintiff and defendants are sisters and brothers. All five of them being the children of Ramasamy Gounder, all the five are heirs in equal heirs and entitled to 1/5th share each.

HELD

The right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements.Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father, whereas the property inherited from her husband or father-in-law would go to the heirs of the husband.

In the present case, since the succession of the suit properties opened in 1967 upon the death of Kupayee Ammal, the Hindu Succession Act,1956 shall apply, and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be the heirs and shall be entitled to 1/5th share each in the suit properties.

The suit was decreed accordingly.

4 Bishnu Bhukta thru. Lrs. vs. Ananta Dehury and Anr.
AIR 2022 ORISSA 24
Date of order: 10th November, 2021
Bench: D. Dash J.

Gift – Donor having 1/5th interest in property – No partition of property – Interest of donor not covered under the definition of gift – Gift is invalid. [Transfer of Property Act, 1882, S. 122]

FACTS

Plaintiff’s case is that the land described in the schedule of the plaint belonged to one Barsana Bhukta who died, leaving his widow Sapura and four daughters, namely, Budhubari, Asha, Nirasa and Bilasa. Budhubari and Asha died issueless in 1970 and 1980 respectively. In 1983, Nirasa died, leaving as her heirs her two sons, the Plaintiffs. After the death of the daughters of Barsana, the Plaintiffs succeeded to the property.The Plaintiffs had filed Civil Suit for partition of the suit land, arraigning Bilasha as the Defendant. Defendant claimed exclusive right over the suit land on the strength of one registered deed of gift dated 2nd September, 1967 covering the entire property standing in favour of his wife, Bilasha, which he inherited upon Bilasha’s death.

The Appellant/Defendants filed the present Appeal challenging the judgment and decree passed by the Ld. District Court while dismissing the Appeal filed by the present Appellant.

HELD

Section 122 of the Transfer of Property Act, 1982 defines ‘gift’. It is the transfer of certain existing movable or immovable property, made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he/she is still capable of giving.

Sapura was only having 1/5th interest over the property, and there was no partition amongst the five. So, Sapura cannot be said to be having any definite property. Thus, here the interest of the donor over the property would not get covered under the definition of a gift. Further, here in such a case, the acceptance of the same by the donee cannot be found out being faced with uncertainty as to which portion of the property the donee would be accepting to be the property gifted to her.

The registered deed of gift executed by Sapura on 12th September, 1967 gifting away the property in suit in favour of one of her daughters, namely, Bilasha is neither valid in its entirety nor can it be said to be valid up to the extent of her share over the entire property belonging to her and her four daughters.

Under the given circumstance, Sapura was neither competent nor had the authority to make a gift of the property inherited by her and her four daughters either in whole or even to the extent of her interest.

The appeal is dismissed.

5 Somuri Ravali vs. Somuri P. Roa and Ors.
AIR 2022 (NOC) 30 (TEL)
Date of order: 8th June, 2021
Bench: A. Rajasheker Reddy J.

Partnership – Original Partnership Deed contains an arbitration clause for disputes amongst partners – Amended deed did not have such a clause – Since firm is not re-registered after amended deed – original deed is valid – Dispute can be referred to Arbitration. [Indian Partnership Act, 1932 S. 43]

FACTS

Petitioner and Respondents No. 1 to 3 have established a Partnership Firm by the name M/s. Reliance Developers vide Partnership Deed dated 27th October, 2011. In 2014, vide Amendment Deed dated 18th September, 2014 they intended to amend the original Partnership Deed with regard to sharing pattern, inter alia. However, a dispute arose amongst the partners who tried to resort to arbitration.

The question arose on the applicability of the arbitration clause in the Original Deed after the termination of the contract on dissolution of the firm.

HELD

The purpose of the Arbitration and Conciliation Act, 1996 is to minimize the burden of the Courts so also to expedite the matters. Once the parties have intended to refer their disputes, if any, to the Arbitrator in the agreement, then any dispute pertaining to the contents of the agreement or touching the subject matter of the agreement is necessarily to be referred to the Arbitrator even though the agreement is mutually terminated by both the parties. Therefore, the arbitration clause in such a contract does not perish. Any dispute arising under the said contract is to be decided as stipulated in the arbitration clause.The arbitration agreement constitutes a “collateral term” in the contract, which relates to the resolution of disputes and not to the performance of the contract. Upon termination of the main contract, the arbitration agreement does not ipso facto come to an end. However, if the nature of the controversy is such that the main contract would itself be treated as non-est in the sense that it never came into existence or was void, the arbitration clause cannot operate, for along with the original contract, the arbitration agreement is also void.

Where a contract containing an arbitration clause is substituted by another contract, the arbitration clause perishes with the original contract unless there is anything in the new contract to show that the parties intended the arbitration clause in the original contract to survive. Even if a deed of transfer of immovable property is challenged as not valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer.

Evidence – Electronic records – Secondary evidence of electronic records inadmissible unless requirements of section 65B are satisfied. [Evidence Act, 1872, Section 65B]

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Anvar P.V. vs. P. K. Basheer & Ors AIR 2015 SC 180.

The Supreme Court was dealing with an appeal filed against order whereby High Court had dismissed election petition holding that corrupt practices pleaded in the petition were not proved and hence, election could not be set aside u/s. 100(1)(b) of the Representation of People Act, 1951. The corrupt practice alleged were use of objectionable speeches, songs and announcements which were recorded using other instruments and by feeding them into computer, CDs were made therefrom which were produced in the court. However, the same were produced without due certification in terms of section 65B of the Evidence Act 1872. It was held that in case of CD, VCD, chip, etc., same shall be accompanied by certificate in terms of section 65B of the Evidence Act obtained at the time of taking the document, without which, secondary evidence pertaining to electronic record is inadmissible in respect of CDs. Thus, whole case set up regarding corrupt practice using songs, announcements and speeches fall to ground.

Co-operative Society – Transfer of membership to flat by nomination or inheritance – Co-operative society bound to transfer to nominee where valid nomination made. [West Bengal co-operative Societies Act,1983, Section 80,79]

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Indrani Wahi vs. Registrar of Co-operative Societies and ors AIR 2016 SC 1969.

Nomination was made by the deceased father in the name of married daughter. Co-operative society implemented the nomination. Other legal heirs challenged the same before Dy. Registrar and succeeded. The single bench of the high court reversed the order of the Dy. Registrar. The division bench substantially set aside the order of the single bench. Hence, married daughter filed appeal to the Supreme Court.

The Supreme Court held as under :

(1) In view of section 79, where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. (2) Rule 128 provides that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate (issued by a Court of competent jurisdiction).

(4) Transfer of share or interest, based on a nomination u/s. 79 in favour of the nominee, is with reference to the concerned cooperative society, and is binding on the said society. The cooperative society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules). However, that would have no relevance to the issue of title between the inheritors or successors to the property of the deceased.

Precedent – Judicial Discipline – Departmental authorities bound by the judicial pronouncements of the Statutory Tribunals even if the decision of the Tribunal was not carried further in appeal on account of low tax effect [Central Excise Act, 1944 S. 35 and 35E].

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Lubi Industries LLP vs. Union of India (2016) 337 E.L.T. 179 (Guj.)(HC)

The petitioner manufactures and supplies submersible pumps to Government agencies. The contracts envisage pre-delivery inspection charges by third party agency at the cost of the buyer . However, initially the payment would be made by the petitioner and would be claimed from the Government. The contest between the petitioner and the Department is with respect to the inclusion of these charges towards the assessable value of the goods. This precise question in identical circumstances in case of this very petitioner came to be decided by CESTAT by judgement dated 16/06/2014, ruled in favour of the assessee.

When such a question arose again, the AO issued a show cause notice as to why the pre-delivery inspection charges should not be included in the assessable value and resultantly unpaid dues of Rs.1.37 lacs not be recovered. The petitioner heavily relied on its case decided in the Tribunal. The AO however confirmed the additions and relied on the judgement of the Supreme Court in the case of Commissioner of Central Excise, Tamil Nadu vs. Southern Structures Ltd. 2008 (229) E.L.T. 487.
The High Court held that, the Assistant Commissioner committed a serious error in ignoring the binding judgement of the superior Court that too in case of the same assessee. Even if the decision of the Tribunal in the present case was not carried further in appeal on account of low tax effect, it was not open for the adjudicating authority to ignore the ratio of such decision. An order that the adjucating authority may pass is appealable, even at the hands of the department. This is clearly provided in Section 35 read with section 35E of the Central Excise Act. Therefore, even if the adjucating authority passes an order in favour of the assessee on the basis of the decision of the Tribunal, it is always open to the Department to file appeal against such judgement of the adjucating authority.

Family Arrangement – Panchayat Resolution reduced in writing – Resulting in relinquishment of rights – could be taken as Family Arrangement – though not registered can be used as a piece of evidence for showing or explaining the conduct of the parties. [Registration Act, 1908, S. 49, 17; Evidence Act, 1872, S.91]

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Subraya M.N. v. Vittala M.N. & Others AIR 2016 Supreme Court 3236.

A suit for partition was filed. The defendants opposed the same on the ground that plaintiffs had relinquished their rights for consideration and this was recorded in Panchayat Resolution. The Trial Court as well as the High Court held that Panchayat Resolution cannot be construed as a Family Arrangement and was inadmissible in evidence as the same was not registered. On appeal, the Supreme Court held that, the Trial Court and the High Court were not right in brushing aside the oral and documentary evidence adduced by the defendant to prove that the plaintiffs had relinquished their right in the immovable property. There is no provision of Law requiring family settlements to be reduced to writing and registered though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to writing with the purpose that the terms should be evidenced by it, it requires registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties.

Accident claim – Can be filed by non-dependant legal representative of the deceased. [Motor Vehicles Act, 1988, S.166, 140]

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Dr. Gangaraju Sowmini v. Alavala Sudhakar Reddy & Another, 2016 AIR Hyderbad 162 (FB)

The reference was filed by the claimant (non-dependent of the deceased) seeking enhancement of compensation awarded by the chairman, Motor Vehicles Accidents Claims Tribunal. The said reference was opposed by the Insurance Company on the ground that amount of compensation would not be granted to a claimant who is not dependant on the deceased.  

It was held by the Full Bench of the Hyderabad High Court that in view of the plain language under Section 166 of the Motor Vehicles Act, 1988, which is a substantive provision for making application for compensation, it is clear that either the injured person or the legal representatives of the deceased are entitled to make an application for award of compensation. Dependency is a matter, which will have a bearing on the issue with regard to fixation of compensation and apportionment of compensation if there are more than one claimant, but at the same time, in view of the plain and unambiguous language used under Section 166 of the Motor Vehicles Act, the term ‘legal representative’ does not mean only a dependant. It is fairly well settled that the legal representative is one who can represent the estate of the deceased.

In the judgment of Hon’ble Supreme Court in Montford Brothers of ST. Gabriel and Another v. United India Insurance & Another, (2014) 3 SCC 394, it was held that it is common in the Indian society, where, the members of the family who are not even dependant also can extend their support monetarily and otherwise to the victims of accidents to meet the immediate expenditure for hospitalisation etc., in such cases, unless the legal representatives are allowed to continue the proceedings initiated by the person who succumbs to injuries subsequently, such claims will be defeated and that will also defeat the very object and intent of the Act. Any such measure would be wholly unequitable and unjust. Plainly, that would never be the intent of any piece of legislation. For the aforesaid reasons and in view of the language under Section 166 of the Motor Vehicles Act, 1988 r/w. Rule 2(g) of the A.P. Motor Vehicles Rules, 1989, we are of the view that even the legal representatives who are non-dependants can also lay a claim for payment of compensation by making application under Section 166 of the Motor Vehicles Act.

Appellate Tribunal – Registrar cannot refuse to accept the appeal though not maintainable – Order of Non-Maintainability to be passed by the Tribunal itself and not the registrar even if the petition was prima facie not maintainable. [Tripura Value Added Tax Act 2004, S.71]

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New Medical (Agartala) Pvt. Ltd. vs. Superintendent of Taxes, Charge-VI, Agartala & Ors. (2015) 82 VST 238 (Tripura) (HC).

The petitioner had filed 2 separate appeals before the Tripura Value Added Tax Tribunal, Agartala, Tripura, but these appeals were returned to the petitioner without passing an order by the Registrar of the Tripura Value Added Tax Tribunal on the ground that since the appeals filed before the Commissioner were dismissed in limine without issuing notice, no revision was maintainable before the Tribunal.

It was held that, the Registrar of the Tribunal may form a prima facie view and raise an objection that an appeal is maintainable or not and it will be for the assessee or the counsel to satisfy the Registrar that such revision is maintainable. Even if the Registrar holds against the assessee, the assessee will still have the right to claim it in the Tribunal which should decide that issue in accordance with Law.
Any Judicial or Quasi-Judicial action has to be based on reasons therefore whenever in future any such order has to be passed even by the Registrar or his subordinates, that order must be in writing and must be conveyed to the assessee so that the assessee knows why the appeal or revision is being returned by the Tribunal.

Coparcener – Vested right after adoption – A coparcener/son continues to have vested right in joint family property of birth even after adoption. [Hindu Adoptions and Maintenance Act, 1956, 12(b); Hindu Succession Act, 1956, Section 30].

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Purushottam Das Bangur AIR 2016 Cal. 227.

In the present case, son (born in a Mithakshara Undivided Hindu Family) given in adoption filed a caveat in the proceedings for probate of the will of his deceased natural father. The propounders seeking probate of the will asked for the discharge of the caveator on the ground that the caveator being given in adoption, had ceased to have any right in the natural family in view of the provisions of section 12(b) of the Hindu Adoptions and Maintenance Act, 1956. The Propounders relied upon decisions of Devgonda Raygonda Patil vs. Shamgonda Raygonda Patil & Anr AIR 1992 Bom 189 and Santosh Kumar Jalan vs. Chandra Kishore Jalan & Anr AIR Patna 125, wherein it was held that until the joint family property is partitioned, there can be no vesting i.e. only if the Joint property is partitioned before the adoption, only then does the coparcenor continue to have a vested right in Joint family property even after adoption.

However, the Court, taking a contrary view held that, a vested interest in a property is understood to mean that a person has acquired proprietary interest therein. However, the enjoyment of such proprietary interest may be postponed till the happening of a certain event. Once that event happens such person would enjoy proprietary rights in respect of the property. A coparcener in a Mitakshara coparcenary acquires an interest in the properties of the Hindu family on his birth. His interest is capable of variation by events such as birth, adoption or death in the coparcenary. In the event of a partition of the coparcenary, a coparcener is entitled to a share of the properties belonging to joint Hindu family. On partition his share gets defined. He can still continue to enjoy his share in jointness with other family members or he can ask for partition of the properties by metes and bounds in accordance with the shares. On partition his share gets defined. This interest which the coparcener in a Mitakshara family acquires by his birth in the natural family continues to remain with him in spite of the adoption in view of section 12(b) of the Hindu Adoptions and Maintenance Act, 1956.

Interpretation of Statutes – Construction of Rules – Prospective or Retrospective – Any legislation said to be dealing with substantive rights shall be prospective in nature and not retrospective. [General Clauses Act, 1897, Section 6]

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Collector vs. K. Govindaraj (2016) 4 SCC 763 (SC)

In the present case, a notification dated 09.10.1996 was published by the Appellant (Collector) inviting applications for grant of stone quarrying leases. This notification was issued under the provisions of Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959 and it was stated therein that lease would be granted for a period of five years. However, when these leases were still in operation and the said period of five years for which these leases were granted had not expired, rule came to be amended vide G.O. dated 17.11.2000. The amended rule provided that the period for quarrying stone in respect of virgin areas, which had not been subjected to quarrying earlier, shall be ten years whereas the period of lease for quarrying stone in respect of other areas shall be five years. On the basis of this amendment, the Respondents pleaded that since they were granted lease for quarrying stone in respect of virgin areas, amended provision was applicable in their cases and they were entitled to continue on lease for a period of ten years.

The Supreme Court held that, “though the Legislature has plenary powers of legislation within the fields assigned to it and can legislate prospectively or retrospectively, the general rule is that in the absence of the enactment specifically mentioning that the concerned legislation or legislative amendment is retrospectively made, the same is to be treated as prospective in nature. It would be more so when the statute is dealing with substantive rights. No doubt, in contrast to statute dealing with substantive rights, wherever a statute deals with merely a matter of procedure, such a statute/amendment in the statute is presumed to be retrospective unless such a construction is textually inadmissible. At the same time, it is to be borne in mind that a particular provision in a procedural statute may be substantive in nature and such a provision cannot be given retrospective effect. To put it otherwise, the classification of a statute, either substantive or procedural, does not necessarily determine whether it may have a retrospective operation”. It was thus held by the Hon’ble Supreme Court, that the right which is substantive in nature, accrued to the virgin areas for the first time by way of amendment only.

It was thus an unamended Rule under which the notification dated 09.10.1996 was issued and tenders were invited and auction held. Rule 8(8) of the 1959 Rules which prescribes period for grant of lease is not procedural but substantive in nature. It is only in respect of virgin areas that the period of lease stands enhanced to ten years whereas in respect of other areas the period of lease continues to be five years. This was clearly a substantive amendment which had nothing to do with any procedure. There was no concept of “virgin area” in the unamended rule which has been introduced for the first time by way of aforesaid amendment.

These appeals were accordingly allowed.

Evidence – Compact Disk – Primary or Secondary evidence – A Compact Disk produced as a source of information of corrupt practice is inadmissible as a primary evidence . [Evidence Act, 1872, Section 65-B]

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Mohammad Akbar vs. Ashok Sahu & Ors. AIR 2016 (NOC) 428 (CHH).

The Court held that where a compact disk is produced as a source of information of corrupt practice, it shall be admissible only as a secondary evidence and not as a primary evidence, where the compact disk did not contain any certificate as required u/s 65-B(4), hence not admissible as Evidence.

Contempt – Non-Compliance of order of a Court on the ground that the appeal is pending against the Court’s order is not permissible. [Contempt of Courts Act, Section 2]

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Sk. Abdul Matleb vs. R.P.S. Khalon & Ors. AIR 2016 Cal. 235.

The alleged respondents were not ready to comply with the Court’s directions on the ground that they had filed an appeal.

It is a well settled law that till the order passed by a competent Court is set aside/or stayed and/or varied and/ or modified, the said order remains valid and subsisting and is required to be complied with, both in law and in spirit.

However, if one has to accept the stand taken by the respondents, it would mean that no order passed by any competent Court will be ever complied with, till the person aggrieved exhausts all his appellate remedies which certainly is not in conformity with the scheme for rendering effective justice in any matter. The Court in such circumstances, issued Rule of Contempt against the respondents.

Arrest – Procedure to be followed by Police Officer – The police must follow the procedures laid down by the courts – if any situation/circumstance is covered u/s. 41 and 41-A of the CR.P.C proper reasoning for the arrest is required [Criminal Procedure Code, 1974 Section 41, 41-A]

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Dr. Rini Johar & Another vs. State of M.P. & Ors. AIR 2016 SC 2679

In the present case, Petitioners being a lady doctor and a lady advocate, against whom a complaint was filed and an FIR u/s. 420 (cheating) and 34 of IPC and Section 66D of the Information Technology Act, 2000, was registered by the Cyber Police. Petitioners submitted that this Court should look into the manner in which they had been arrested, how the norms fixed by this Court had been flagrantly violated and how their dignity was sullied permitting the atrocities to reign. It was urged that if this Court is prima facie satisfied that violations are absolutely impermissible in law, they would be entitled to compensation.

The Hon’ble Supreme Court (SC) held that before the police proceed to arrest, certain guidelines as prescribed by the SC in the case of D.K. Basu vs. State of W.B. (1977) SC 416 should be adhered to.

Thereafter, the Court referred to Section 41 of the Code of Criminal Procedure (inserted by Amendment Act of 2009) and analysing the said provision, opined that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence. It has been further held that a police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.

It has been held that section 41A of the Code of Criminal Procedure makes it clear that where the arrest of a person is not required u/s. 41(1) of the Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 of the Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

Right to Information Act – Information pertaining to development plan cannot be withheld by Municipal Corporation. [Right to Information Act, 2005, Section 6,8]

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Ferani Hotels Pvt. Ltd. vs. State Information Commissioner AIR 2016 (NOC) 384 (Bom.).

The Sole administrator of the estate and effects of one late E.F. Dinshaw

[3rd respondent] submitted an application under section 6(1) of the Act, to the Public Information Officer of the Municipal Corporation of Greater Bombay on December 10, 2012 demanding information pertaining to certain lands. The information as applied was for the certified copies of the property card, certified copies of plans and amendments to the plans as submitted by Ferani Hotels Pvt. Ltd. [Petitioner] or its architects, certified copies of all layouts, sub division plans and amendments, certified copies of development plans and amendments thereon and certified copies of all reports submitted to the Municipal Commissioner and his approval thereto. It was the petitioner’s case that the 3rd respondent was a competitor of the petitioner and disclosure of the information would cause harm and injury to the business of the petitioner company as also would violate the intellectual property rights.

The information as sought by the 3rd respondent was also trade secret and thus would be detrimental to the business of petitioner interest as also in the pending suit and proceedings in various Courts.

The High Court held that information sought was regarding development proposal of land and development plan submitted to and in custody of Municipal Corporation. Municipal Corporation had granted approval to development proposal. Larger public interest requires that said information should be supplied. It was neither trade secret nor disclosure involving infringement of copyright. Such information cannot be withheld.

Precedent – High Court should be very slow in taking a view different than the view of other High Court. [Customs Act, 1962]

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Dharmesh Devchand Pansuriya vs. UOI 2016 (336) E.L.T 402 (Guj.)

The settlement commission under the Customs Act, 1962 had held that it had no jurisdiction. Hence, Special Civil Application was filed by the Petitioner in Gujarat High Court. It was pointed out by the revenue that view of settlement commission was supported by decision of Additional Commissioner of Customs vs. Ram Niwas Verma, reported in 2015 (323) ELT (Del) (HC) and C.S. India vs. Additional Director General, DCEI, Bangalore, 2015 (325) ELT (Karn) (HC).

It was held by the Gujarat High Court that Customs Act, 1962 being a central statute bearing tax implications, we would, even otherwise, be slow in taking different view from two reasoned judgments of other High Courts. Even if, therefore, another view was possible, for the sake of consistency, we would have respectfully followed the view of other High Courts.

Hindu Widow’s Remarriage – On remarriage of Hindu widow, she gets divested of right, title and interest in deceased husband’s property. [Hindu Widows Remarriage Act, 1856 Section 2 ]

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Balak Ram (By LR’s) & Ors vs. Rukhi & Ors. AIR 2016 Chhattisgarh 68.

The Chhattisgarh High Court held that a perusal of section 2 of Hindu Widows Remarriage Act, 1856 reveals that upon remarriage, all rights and interests of the widow in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall, upon her remarriage, cease and determine. The legislative intention of a total disassociation of widow upon remarriage is clearly manifested by providing that upon remarriage, all interests and rights would cease and determine as if she had then died. This provision of strong import of civil death of the widow upon remarriage is sufficiently indicative of legislative intention that remarriage shall lead to determination and cessation of all rights and interests of widow in the property of the deceased. The provision is comprehensive in nature and every possible rights and interests which a widow might have in the property of the deceased including limited estate of maintenance have been brought within the ambit of the provision.

The High Court further held that at the time of commencement of the Hindu Succession Act, 1956 with effect from 17-6-1956 respondent Sukhmen had no subsisting interest or estate in the property of her husband. For that reason, there is no occasion of application of section 14 of the Hindu Succession Act, 1956 in the present case to the aid of the defendant Sukhmen because section 14 of the Hindu Succession Act, 1956 provides that limited estate shall become absolute in favour of a female survivor. The provision by itself does not create any new right or estate which the widow or the female relative did not have at the time of coming into force of the said Act.

Hindu Succession – Property inherited by female Hindu widow from her husband would devolve upon heirs of husband in absence of any son and daughter. [Hindu Succession Act, 1956 Section 15, 16].

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Mahadev S. More vs. Sukhdev S More AIR 2016 BOM 151.

The Bombay High Court held as per section 15(2) of the Hindu Succession Act, 1956 any property inherited by a female Hindu from husband or father in law will devolve upon heirs of husband in the absence of any son or daughter of the deceased. Further, as per section16 of the said Act the property of intestate shall devolve as if the property had been the fathers or mothers or husbands as the case may be.

Hindu Marriage Act – Recording of statement of witness through video conferencing is permissible. [Hindu Marriage Act, Section 13B]

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Shilpa Chaudhary (Smt.) vs. Principal Judge & Anr. AIR 2016 ALL 122.

The lower court noted in the impugned order that merely on the basis of an affidavit, the marriage cannot be dissolved in proceedings u/s. 13B of Hindu Marriage Act, 1955 (the Act). The presence of the parties is mandatory. Further, the electronic facility available in the court cannot be used, as there being no device for interacting with a party who is residing outside the country.

The Allahabad High Court held that the word “after hearing the parties” used in subsection (2) of section 13B of the Act, however, does not necessarily mean that both parties have to be examined. The word “hearing” is often used in a broad sense which need not always mean personal hearing. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties. The family courts are entitled to ascertain the views of the parties, but however, if one of the parties, appears before the family court and expresses no objection to an affidavit of the other party to be taken on record and is not desirous of cross-examining the deponent of the affidavit, the family court can entertain, unhesitatingly any such application. Increasingly family courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed, possibly, sometimes due to pre-occupation with any other more pressing work in the Court. However, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.

Writ – Power of attorney – A writ petition under Article 226 of the Constitution can be filed by a power of attorney holder subject to certain safeguards [Constitution Of India – Art. 226]

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Syed Wasif Husain Rizvi vs. Hasan Raza Khan AIR2016All52 (HC)

The issue before the Full Bench of the Allahabad High Court was “Whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder.” The High Court held that when a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article, 226 of the Constitution is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court. Hence, the issue was decided in the affirmative.

The High Court further emphasised the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following:

(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application;

(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and

(3) The donee must be confined to those acts which he is 15 authorised by the power of attorney to discharge.

Mohammedan Law – Will – Challenge – Limitation of three years starts from date author of Will expires – Bequest to heir is not valid unless consent of all other legal heirs is obtained. [Limitation Act Art 137 and Mohammedan Law – Rule 192].

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Smt Munawar Begum vs. Asif Ali and Ors. AIR 2016 (NOC) 259 (Cal)(HC).

Saira Begum, the mother of the appellant had executed Will in the year 1995. She expired on 18th January, 2003. The appellant filed the suit on 12th November, 2003 for cancellation of the Will. The short point was from which date limitation is to be counted i.e. from 1995 or from 18th January, 2003. There is no dispute that a Will is a legal declaration of the intention of the testatrix with respect to her property and takes effect after her death. A Will is a voluntary posthumous disposition of property. Since a Will takes effect after death, the argument that the appellant was aware of the same in the year 1995 is of no significance. In the instant case, the author of the Will, the mother, expired on 18th January, 2003. The right to sue begins to run from 18th January, 2003 and the period of limitation is three years. The suit was filed on 12th November, 2003. Therefore, it was held that the suit was filed within the period of limitation.

The other issue was regarding the validity of the Will, submission was though a Will under the Mohammedan Law, in order to be valid and enforceable in law, it has to fulfill certain conditions under Rule 192. In the instant case, however, the Will of Saira Begum, the mother of the appellant falls short of the requirements stipulated therein since the Appellant had not given consent. It was held that as far as the consent of the appellant is concerned, under Rule 192, a bequest to an heir is not valid unless the other heirs consent. It appears from the Will dated 28th September, 1995, which was registered subsequently in 1998, that the signature of the appellant, an heir, is absent. Therefore, as the consent of the appellant is missing, the Will or the testamentary disposition is invalid. Though it was emphasised on behalf of the respondent that the Will in question speaks that “I further declare voluntarily that I do not wish to give any part of my said property to my any other children or relatives and I make this Will with the consent of all my other children and without any objection from any of them”, the same is of little significance as though the Will contains the signature of other heirs, it does not bear the signature of the appellant. The said sentence in the Will, as noted, could have been of some significance if other heirs had not put their signature. Since the signature of the appellant was absent, it was held that the Will was not valid under Rule 192 and not binding on the appellant.

FIRM – Appointment of Arbitrator – Unregistered firm cannot enforce arbitration clause in a partnership deed. [Indian Partnership Act, 9132 – Section 69(3)].

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C.M. Makhija vs. Chairman South Eastern Coalfields Ltd. AIR 2016 CHHATTISGARH 63 (HC).

An application was filed in the High Court under section 11(6) of the Arbitration & Conciliation Act, 1996 whereby the applicant sought to enforce an arbitral agreement and prayed for appointment of an Arbitrator. The application was objected to on the ground that the applicant was not a registered partnership firm having registration number from the Register of Firms & Societies and section 69 of the Indian Partnership Act, 1932, prohibits filing of a proceeding by an unregistered firm.

The High Court held that section 69, speaking generally, bars certain suits and proceedings as a consequence of non-registration of firms. Sub-section (1) prohibits the institution of a suit between partners inter se or between partners and the firm for the purpose of enforcing a right arising from a contract or right conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Sub-section (2) similarly prohibits a suit by or on behalf of the firm against a third party for the purpose of enforcing rights arising from a contract unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. In the third sub-section a claim of set-off which is in the nature of a counter-claim is barred as also the s/s. (3) takes within its sweep the word “other proceedings”. The words “other proceedings” in sub-section (3) whether should be construed as ejusdem generis with “a claim of set-off”, was subject of conflicting decisions. Finally, the conflict was resolved by the Supreme Court in the case of Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 wherein the Court held the rule ejusdem generis did not apply to an unregistered firm and unregistered firm could not enforce an arbitration clause in the partnership deed. Hence, the application for appointment of Arbitrator cannot be gone into for the bar created u/s. 69(3) of the Indian Partnership Act, 1932.

Fixed Deposits – Renewal of fixed deposits cannot be made in the name of different constituent other than original depositor. [Banking Regulation Act – Section 45ZB].

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The Canara Bank vs. Sheo Prakash Maskara AIR 2016 PATNA 58 (HC).

Father, mother and son had different Kamdhenu Deposits made in the year 1996. These deposits were cumulative deposits i.e. the interest accruing is ploughed back and upon maturity, the entire cumulative amount is paid. They were to mature for payment at the end of one year i.e. in 1997. None of the three parties approached the Bank for either renewal or encashment of the said deposit certificates, it lay with the Bank. In other words, the money remained with the Bank. For the first time in the year 2002, the parties approached the Bank for renewal of the deposit receipts. This time the Bank refused to renew the receipts with effect from the date of its original maturity, though they were agreeable to renew the same for the matured amount from the date when they applied for renewal in 2002. However, the head office of the Bank examined the matter and directed the Bank to renew the certificates in relation to the son with effect from the date of its maturity on rate of interest prevailing in that period, but when it came to father and mother the Bank took a stand that it will not give the same treatment.

The Division bench of the High Court held that there is no plausible explanation why in case of the son the Bank agreed to renew for five years retrospectively and grant interest at the then prevailing rates, but when it came to his father and mother why the Bank took a different stand. Therefore, the Court held that the direction of the learned single Judge which is virtually directing that same treatment has to be given to the parents cannot be faulted with, but there was a problem i.e. due to subsequent events. It is not in dispute that during pendency of the writ petition, mother had died on 13-10-2010. Thus, renewal could only be up to that period and not beyond that. There cannot be a renewal in name of a different constituent, than the original applicant, as that would be a fresh deposit. To accept or not to accept fresh deposit is Bank’s discretion and that would also depend upon the claimants upon death, establishing their rights in absence of nomination. Father died on 17-9-1998, and it is for the first time in 2002 that renewal was sought by one of the sons. There could be no renewal in his name. To that extent, we are of the view that after the death of father, the K.D.R. receipt could not be renewed as there is no proof of the fact that renewal or maturity claim was led by all the heirs completing all formalities. The Court further held that if all the heirs claim payment consequent to encashment, Bank would pay the same as per their joint claim in the shares they desire.

Daughters – Daughters in tribal areas in the State of Himachal Pradesh will inherit property in accordance with Hindu Succession Act 1956 and not as per custom and usage. [Hindu Succession Act, 1956 – Section 2(2), 4]

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Bahadur vs. Bratiya and ors AIR 2016 HIMACHAL PRADESH 58 (HC).

 A suit for declaration to the effect that father of plaintiff Rasalu was Gaddi, therefore, belonged to Scheduled Tribe community. The parties were governed by custom, according to which, the daughters do not inherit the property of their father

Sub-section (2) of section 2 of the Hindu Succession Act (the Act) reads as under:-

“(2) Notwithstanding anything contained in s/s. (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (255) of Article 366 of the Constitution unless the Central Government, by notification in the official Gazette, otherwise directs.”

The High Court held that in few of the judgments of the Senior Sub Judge and District Judge, it is held that in the community of Gaddi, property devolves only upon the sons and it does not devolve upon the daughters, but in few of the judgments, it is held that property amongst Gaddi community would devolve upon sons and daughters equally. There is no consistency in the judgments cited to prove the custom amongst the Gaddies that sons alone would inherit the property. The plaintiff had not even placed on record copy of Riwaj-i-aam to prove that there is a custom prevalent in the Gaddi community that after the death of male collateral, the property devolves upon sons only and not upon daughters. In the copy of Pariwar register produced by the plaintiff, expression “Rajput Gaddi” has been mentioned. It further strengthens the case of the defendants that parties were Rajput and not Gaddi.

Even if it is hypothetically held that the parties were Gaddi, still the plaintiff has failed to prove that there was any custom whereby the girls were excluded from succeeding to the property of their father. According to the plain language of section 4 of the Hindu Succession Act, 1956, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. In view of this, though there is no conclusive evidence that the custom is prevailing in the Gaddi community that the daughters would have no rights in the property but even if it is hypothetically assumed that this custom does exist, the same would be in derogation of section 4 of the Hindu Succession Act, 1956.

Precedent – Judicial discipline – Tribunal cannot assume power to declare judgement of division Bench of Court as per incuriam and refuse to follow it. [Karnataka Sales Tax Act, 1957, Section 6B]

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State of Karnataka vs. Deccan Sales Corporation Ltd [2016] 87 VST 265 (Karn).

Reassessment u/s. 12-A of the Act was passed on the basis of the judgment dated 25.11.2004 of this Court in the case of Pali Chemical Industries, Nippani, Belgaum vs. The Additional Commissioner of Commercial Taxes, Zone-I, Bangalore and another reported in 2005 (58) KLJ 54 (HC) (DB), that the chemical fertilizer mixture is not eligible for exemption from turn over tax even if its components have already suffered local tax under the Act.

The Tribunal after noticing that, while delivering the judgment in Pali Chemical Industries case, the decision in the case of State of Karnataka vs. Kothari Industrial Corporation, reported in 2000-01 (5) K.C.T.J. 193 was not noticed or brought before the Hon’ble High Court by the parties concerned in Pali Chemical Industries case, held that the judgment in Pali Chemical Industries case cannot be considered as a binding precedent.

The High Court observed that we would like to place on record that we are very much disturbed by the tendency exhibited by the lower authorities in refusing to follow the law laid down by this Court saying that the same is not binding on them merely because other binding precedents are not taken into consideration in those judgments. It appears that the Tribunal has assumed the power to declare the judgment of the Division Bench of this Court as per incuriam and thereby refused to follow the judgment. The justification for such a course of action is that it is permitted to do so by another Division Bench. If this tendency is not nipped in the bud, we are afraid that there will be total lawlessness especially in the branch of Taxation Law.

The High Court further held that if another Division Bench of this Court is not persuaded to accept the said view, the only course open is to place relevant papers before the Hon’ble Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matter.

It is high time that the lower authorities learn to maintain judicial discipline and stop showing disrespect to the constitutional ethos. Breach of discipline has great impact on the credibility of the judicial institution and encourages chance litigation. It must be remembered that practicability and certainty is a hallmark of the judicial jurisprudence developed in the country in the last six decades.

Precedent – Stay – Strictures – Recovery of demand by adjustment of refund from stayed demand – In identical case for different years of the same assessee such mode of recovery was set aside by the High Court and revenue was unable to show how facts were different this time around. Recovery was set aside. Warning that officers would in future be personally liable.

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Larsen & Toubro Ltd vs. UOI 2016 (335) E.L.T. 215 (Bom)

The Bombay High Court held that officers after officers are reluctant to take decisions for the consequences might be drastic for them. No officer is acting independently and following judgments of this Court, but waiting for the superiors to give them a nod. Even the superiors are reluctant given the status of the assessee and the quantum of the demand or the refund claim. We are sure that some day we would be required to step in and order action against such officers who refuse to comply with the Court judgments and which are binding on them as they fear drastic consequences or unless their superiors have given them the green signal. If there is such reluctance, then, we do not find any enthusiasm much less encouragement for business entities to do business in India or with Indian business entitles. Such negative reactions / responses hurt eventually the National pride and image. It is time that the officers inculcate in them a habit of following and implementing judicial orders which bind them and unmindful of the response of their superiors. That would generate the right support from all, including those who come forward to pay taxes and sometimes voluntarily. Hereafter if such orders are not withdrawn despite binding Division Bench judgments of this Court that would visit the officials with individual penalties, including forfeiture of their salaries until they take a corrective action. If any approval or nod is required from superiors that should also be granted expeditiously and while obeying the court orders, the officers can always reserve the Revenue’s rights to challenge them in appropriate legal proceedings. A copy of order be sent to the Secretary in the Ministry of Finance, Government of India and the Chairman, Central Board of Excise and Customs.

Bombay Stamp Act – Amalgamation – Scheme of amalgamation is not chargeable to stamp duty. It is the order of court sanctioning the scheme that is chargeable. [ Bombay Stamp Act,1958, Section 3,2(1)]

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The Chief Controlling Revenue Authority, Maharashtra vs. Reliance Industries Ltd AIR 2016 BOMBAY 108 Full Bench.

The Reliance Industries Limited and Reliance Petroleum Limited, Jamnagar Gujarat entered into a scheme of amalgamation u/ss. 391 & 394 of the Companies Act 1956. Company petitions were filed by the transferor company in Gujarat High Court and the transferee company in Bombay High court. The Scheme was sanctioned by both the High Courts. Accordingly, stamp duty was paid in Gujarat of Rs 10 crore. When the order sanctioning the Scheme of amalgamation was presented for stamp duty adjudication in Maharashtra, the Company claimed set off of the stamp duty paid in Gujarat which was refused.

The full bench of the Bombay High court held that as the scheme of arrangement or amalgamation has no effect or force unless or until it was sanctioned by the court, it is the order sanctioning the scheme that would be an instrument u/s. 2(l) and not the scheme of amalgamation. Hence, the Company was not entitled for rebate of stamp duty paid in Gujarat.

Power of Attorney holder – Authorised for signing various documents – Suit filed by Power of Attorney holder – Power of Attorney holder deposing in court on his personal knowledge of each and every detail of transaction – Evidence of Power of Attorney holder of Plaintiff readiness and willingness admissible [Code of Civil Procedure, 1908, Order VI Rule 14, Order XLI Rule 27].

Santosh
Vaidya vs. Namdeo Budde and Ors AIR 2016 (NOC) 584 (BOM.)

Respondents-plaintiffs,
through their power of attorney holder by name Dhairyasheel, instituted Special
Civil Suit for specific performance of contract against the Appellant defendant
no. 1 and defendant no. 2.

The
case was that defendant  no.  1 was the owner of field HR at Mouza
Hudkeshwar and he entered into an agreement in favour of the Plaintiff and
defendant  no. 2 for the sale thereof. It
was also agreed that defendant no. 1 will execute the sale-deed within 1 1/2
years from the date of the agreement and remaining consideration would be paid
accordingly. It was further agreed that in case there was any legal impediment
in getting the sale- deed registered, further time of 1 1/2 years would be
extended. The defendant no. 1 having not complied with the obtaining of
permissions and no objections from the authorities, was not entitled to cancel
the agreement nor could he do so since the agreement itself provided for
extension by another 1 1/2 year. Plaintiffs and defendant no. 2 again informed
defendant no. 1 that they were ready and willing to get the sale-deed
registered and then defendant no. 1 also realised his mistake of not obtaining
the necessary documents of no objections etc. and agreed to make compliance.
however, defendant no. 1 still did not produce no objections from the competent
authority and therefore, Plaintiff had no alternative but to file suit for
specific performance of contract thereafter.

It
was held by the high Court that rule 14 of the Code of Civil Procedure
categorically shows that a person authorised is entitled to file and prosecute
the suit till its disposal. In the light of the above provision, it is not
possible to accept the submissions about the incompetence of the power of attorney
holder to file the suit.

The
counsel for the appellant then argued that the power of attorney holder had no
personal knowledge about the execution of agreement and, therefore, his
evidence is worthless and should not have been relied upon by the appellate
judge.

On perusal of the evidence of two witnesses of
the defen­ dant namely; appellant nos. 1 and 2, does not even show a semblance
of evidence that there was no readiness and willingness on the part of the
Plaintiff and defendant no. 2. It was clear from the entire record that the
power of attorney holder had full personal knowledge about the entire
transaction and that Plaintiff and defendant no. 2 were ready and willing to
perform their part of contract. In the wake of the above factual position in
this case, the power of attorney holder could validly depose about the
readiness and willingness. Accordingly, the appeal was dismissed.

Protected Tenant’s right to property – Landholder cannot sell the land without first offering the same to the ‘Protected Tenant’ – Land can be sold only if the ‘Protected Tenant’ does not exercise his right to purchase the said land. [Hyderabad Tenancy and Agricultural Lands Act (21 of 1950), Sections 40, 32; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 – Section 40]

B.
Bal Reddy vs. Teegala Narayana Reddy and Ors.. AIR 2016 SUPREME COURT 3810

One
teegala Shivaiah was a Protected tenant in respect of agricultural lands. The
respondents were the heirs and successors of said teegala Shivaiah who died
sometime in the year 1964. The land holders who were recorded as owners of the
said land sold the said land to various buyers who in turn further effected
sales.

Respondents,  after 
obtaining  succession  certificates from Dy. Collector and Mandal
Revenue Officer, filed an application u/s. 32 of the act for restoration of possession
of the said land. The deputy Collector mandal revenue Officer directed
restoration of the physical possession the Respondents. The succession
certificate as well as the order of restoration was set aside by the joint  Collector. The high Court reversed the order
of the joint  Collector on the point of
restoration of possession.

The
Supreme Court held that section 38-d of the act prescribes the procedure to be
followed when the land holder intends to sell the land held by a Protected
tenant. Accordingly, the land must first be offered by issuing a notice in
writing to the Protected tenant and it is only when the Protected tenant does
not exercise the right of purchase in accordance with the procedure, that the
land holder can sell such land to any other person. The court further held, it
is well settled that the interest of a Protected tenant continues to be
operative and subsisting so long as ‘protected tenancy’ is not validly
terminated. Even if such Protected tenant 
has lost possession of the land in question, that by itself does not
terminate the ‘protected tenancy’.

Hence,
the appeals were dismissed.

Insurance claim– Cannot be denied on the ground that no premium had been paid – Notice to insured before the policy lapses, must be issued. [Insurance Act (4 of 1938)]

Jammu
and Kashmir Bank Ltd., Jammu vs. Tania Jamwal and Others. AIR 2016 JAMMU AND
KASHMIR 114

The
Claimants-respondents  had an insurance
policy named, “jeevan  Saral Policy”. As
per the arrangement/ authorisation of the deceased policy holder, the premium
amount was to be debited by the insurance company from the account of the
deceased policy holder through electronic clearing system, provided there were
sufficient funds in the bank account, which was being maintained by j & K
Bank ltd.  This was an inter-se
arrangement between the Policy holder’s bank and the insurance company.

The
deceased policy holder passed away and the claimants claimed the amount of
insurance policy. the insurance company 
rejected the claim on the ground that the policy had already lapsed due
to non-payment of premium.

The
high Court held that if for any reason the amount in question could not be
debited in time, it was the sole duty of the insurance company to appraise the
deceased policy holder. But in the present case, the insurance company did not
bring it to the notice of the deceased policy holder, moreover, the bank, while
rejecting the requisition of the insurance 
company  mentioned  “miscellaneous”  in  its
reasons memo as a result of which the insurance company suffered a confusion.
if there was any procedural lapse/ wrong, the same was between the insurance
company and  the  bank 
for  which  the 
policy  holder  cannot 
be held responsible.

Family Court Proceedings – Admissibility of Electronic Records – Privileged Communication – Video clippings recorded through pin hole camera with hard disk memory is primary evidence – Section 65B compliance not required. [Indian Evidence Act, 1872 – Sections 122, 14, 62,65B; Family Courts Act, 1984 – Section 13, 14]

Preeti Jain vs. Kunal Jain and
Ors. AIR 2016 RAJASTHAN 153

A husband filed for dissolution
of the marriage u/s. 13 of the family 
Courts act, 1984 against his wife on the grounds of cruelty and
adultery. It was alleged that the applicant had in his possession a video
clipping recorded through a pin hole camera establishing his wife’s extra­
marital relationship.

Counsel for the wife submitted
that the electronic record placed before the family court did not satisfy the
mandate of section 65B (4) of the indian evidence act, 1872, which requires a
certificate (signed by a person occupying a responsible official position in
relation to the operation of the relevant device or the management of the
relevant activities,  whichever  was 
appropriate,  through  which the material was electronically
recorded) stating that the contents of the electronic recordings were true to
the best of his knowledge and belief. The prayer of the wife was dismissed.

It was held by the high Court
that it is the discretion of the family court to receive or not to receive the
evidence, report, statement, documents, information etc. placed before it on
the test, whether it does or does not facilitate an effective adjudication of the
disputes before it. Section 65B of the act of 1872 only deals with the
secondary evidence qua electronic records. It does not at all deal with the
original electronic records, as in the instant case, where the pinhole camera,
with a hard disk memory on which the recording was done has been submitted
before the family Court. Reliance was placed in the case of Anvar P.V. vs. P.K.
Basheer (2014)10 SCC 473:

“If an electronic record is
produced as a primary evidence u/s. 62 of the evidence act, the same is
admissible in evidence without compliance with the conditions of Section 65B of
the act of 1872.”

Hence, petition was dismissed.

Will – Transfer of property – Will becomes effective only after death of testator – Limitation Act, does not strictly apply for granting probate.

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The State of Meghalaya & Anr vs. Bimol Deb & Anr. ; AIR 2015 Meghalaya 48 (HC).

Writ petition was filed challenging the order of additional Dy. Commissioner (Revenue), Shillong on granting the probate. It was submitted that, as per the Meghalaya Transfer of Land (Regulation) Amendment Act, 2010, no one can make a Will to transfer the property from one living person to another living person and that the Will in question was not a Will at all, but it was made for the purpose of transfer of land by the testator of the Will.

The Hon’ble Court observed that The Meghalaya Land Transfer Act, 1971 is a law passed by the State legislature. There is no definition that, “transfer of property” shall also include within its meaning “WILL” under the Transfer of Property Act, 1882. Section 5 of the Transfer of Property Act, 1882 defines “transfer of property” as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons; and ‘to transfer property’ is to perform such act”.

The definition of “WILL” can be found only in the Indian Succession Act, 1925 in Section 2(h) “WILL” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”

Now, the word “convey” in section 5 has been further defined in the Indian Stamp Act, 1899 in section 2(10). “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos (between living persons) and which is not specifically provided for by Schedule I”.

The upshot of the above legal position is that, ‘transfer of property’ will include only between living person and the same is the meaning of conveyance also which will include only between living persons. However, Will is a testament by a legal declaration bequeathing the right of property to a living person in future. A Will becomes effective only after the death of the testator. A Will is a last wish of a dead person.

Analysing various provisions of The Meghalaya Transfer of Land (Regulation) Amendment Act, 2010, the Court held that, if we read the definition of “Transfer of property” and “Conveyance” quoted and discussed above, it becomes very apparent that, by including “WILL” within the meaning of “Conveyance”, the State legislature has rewritten the definition of “conveyance” which is an illegal exercise of power; but the State legislature in the first place has no power to alter the definition of conveyance legislated by the Parliament. The inclusion of “WILL” has to be struck down as illegal since the State legislature cannot overstep in the field of Union list while legislating law. The issue of succession is solely in the field of the Union list and not in the Concurrent list. Safe legal inference can be drawn that the insertion of WILL in clause 2(d) of the Meghalaya Land Transfer Amendment Act, 2012 quoted above is a blatant case of illegal legislation and is liable to be struck out. The subsequent amendment in section 3A restricting the devolution of property only to immediate family members will have to meet the same fate and to be struck down. The Court also observed that as per the limitation is concerned Article 17 of the Limitation Act, 1963 does not strictly apply for granting probate.

Tribunal – Early hearing – Application must be considered :

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Payadhi Foods P. Ltd. vs. UOI 2015 (325) ELT 705 (Cal.) (HC)

The Petitioner filed an application for early hearing of a pending appeal before the CESTAT which was dismissed on the ground that the appeal would be considered in due course.

The Hon’ble court observed that the appeal which was filed in the year 2010 had not reached to its logical conclusion as yet. The Court observed that though it was not oblivious of the reality where the docket of the Tribunal is burdened with enormous litigation filed before it, but equally this Court cannot lose sight of the responsibilities of the statutory authority to render justice effectively and expeditiously. When an application is taken out seeking for an early hearing of the said appeal, the Tribunal ought to have fixed the date but should not have thrown the said application at the threshold that it will be taken up in due course. The court observed that the justice would be sub-serve if the CESTAT is directed to fix up a date and hear out the said appeal within the time frame.

Gift Deed – Cancellation – Suspicious Circumstances – It is settled principles of law that negative cannot be proved

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Smt. Sita Sundar Devi vs. Savitri Devi & Ors. AIR 2015 Patna 217 (HC)

Plaintiff filed the suit for declaration that the gift deed dated 09.05.1967 purportedly executed by him in favour of defendant Nos. 2 to 4 is fraudulent, illegal and void. The plaintiff also prayed for cancellation of the gift deed.

The lower court recorded the finding that the plaintiff had no cause of action and, therefore, was not entitled to any relief. The court below also found that the plaintiff failed to prove that the gift deed was obtained from him by fraud and as such, the gift deed is not a fraudulent, fabricated and illegal document. Accordingly, the plaintiff’s suit was dismissed.

The Hon’ble High Court observed that it is settled principles of law that a registered document is presumed to be genuine unless the contrary is proved. However, this presumption is rebutable. Once the plaintiff denied its execution with his knowledge and alleged fraud describing how the fraud was played on him, it was for the defendant to have explained the facts, which have been denied by the plaintiff.

The plaintiff has shown the circumstances and the reason as to why he would have gifted his entire property to the the defendants, who are not close relatives without making any provision either for himself or for his wife and the daughter, grand-daughters etc. When these facts were brought on record, it was for the defendants to have satisfactorily explained the matter.

The court further observed that, it is the case of the defendants that plaintiff has purchased the stamp, therefore, it was for the defendants to prove this fact because the plaintiff has denied in so many words and it is settled principles of law that negative cannot be proved.

Once the plaintiff denied the facts, the presumption of genuineness of the gift deed stands rebutted and the onus shifted on the defendants to prove positively the fact asserted by the defendants.

It is settled principles of law that for proving fraud, the circumstance is to be shown satisfactorily to the conscience of the Court because no direct evidence will be found. Here, the plaintiff has proved the fact that he has his wife, daughter, grand-daughters and son-in-law whom he loves. Now the question is, can it be believed that one person will gift all the properties to some persons, who are either not related or distantly related without making provision even for himself and his wife? The court held that, this cannot be the natural conduct of a person.

This is one of the strong circumstances which raises a strong suspicion about the genuineness of the gift deed as there is no explanation at all. Can it be believed that the plaintiff’s love and affection towards his wife, daughter, grand-daughters and son-in-law and even towards himself was lesser than the love and affection towards the defendants?

The other aspect is that in fact the plaintiff was in need of money when he was ailing and was being treated. In such circumstances, he would have sold the property for arranging money but he did not sell. Rather, he obtained assistance from the defendants and then gifted everything, which again creates a strong doubt.

All these are the circumstances, which have been proved by the plaintiff, which clearly indicate that in fact the defendants played a fraud on the plaintiff and got the gift deed executed by him.

In view of above, the Court held that the plaintiff had been able to prove that the defendants fraudulently got the gift deed executed. As such the gift deed was not a genuine document and no title passed on the defendants on the basis of this gift deed.

Nominations – Securities – Nominee continues to hold the Securities in trust and as a fiduciary for claimants under succession law : Succession Act 1925 Section 58:

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Jayanand Jayant Salgaonkar vs. Jayshree Jayant Salgaonkar AIR 2015 Bom 296

The issue arose as to whether the decision of a learned single Judge of Court in Harsha Nitin Kokate vs. The Saraswat Cooperative Bank Ltd. & Ors. 2010(112) Bom. LR 2014 was per incuriam and not a good law wherein the Court had considered the provisions of section 109A of the Companies Act, 1956 and Bye-Law 9.11 under the Depositories Act, 1996, and found that once a nomination is made, the securities in question: automatically get transferred in the name of the nominee upon the death of the holder of the shares.

In the present matter the Hon’ble Court observed that The Depositories Act, 1996. is an act to provide for regulation of depositories in securities and for matters connected therewith or incidental thereto.

This Act has nothing whatever to do with succession or disposition inter vivos. Plainly, the Depositories Act is concerned with the regulation of depositories, i.e., those entities providing depository services, and not in relation to the holders of the securities in such services, or the manner in which those security-holders might choose to conduct their affairs or to leave the distribution of these securities either to be governed by actions and deeds inter vivos, testamentary succession or inheritance.

A nomination, though said to be a ‘testament’, requires no probate or other proof ‘in solemn form’. Witnesses need not be in the presence of the nominator. Witnesses need not act at the instance of the nominator. Witnesses need not see the nominator execute the nomination. No nomination can be assailed on the ground of importunity, fraud, coercion or undue influence; section 61 of the Indian Succession Act is wholly defenestrated, as is section 59. There can be no codicil to a nomination. There is no particular form for a will, but there are requirements attendant to its proper making. These do not apply to all nominations. Even the requirement of witnesses is a matter of prudence rather than statute. If that be so, no nomination per se requires attestation, and if that be so, it is admissible in evidence u/s. 68 of the Evidence Act, 1872 without the evidence of any witness (simply because a witness to a nomination is not, in any sense, an ‘attesting witness’). But no Will can be so read in evidence without such evidence. From the fundamental definitions to the decisions cited, it is clear that a nomination only provides the company or the depository a quittance. The nominee continues to hold the securities in trust and as a fiduciary for the claimants under the succession law. Nominations u/ss 109A and 109B of the Companies Act and Bye-Law 9.11 of the Depositories Act, 1996 cannot and do not displace the law of succession, nor do they open a third line of succession.

Judicial Process – Judicial Composure and Restraint – Judicial accountability and discipline are necessary to the orderly administration of justice.

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State of Uttar Pradesh & Anr vs. Anil Kumar Sharma & Anr. (2015) 6 SCC 716

The substantial question of law that was raised in this appeal was, as to what extent a High Court can exercise its powers in issuing directions on judicial side, relating to the procedure to be adopted in criminal trials. The Hon’ble Supreme Court, referring the observation in A. M. Mathur vs. Pramod Kumar Gupta (1990) 2 SCC 533, observed that judicial restraint and discipline are necessary to the orderly administration of justice. The duty of restraint and the humility of function has to be the constant theme for a Judge, for the said quality in decision-making is as much necessary for the Judges to command respect as to protect the independence of the judiciary.

Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.

No person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, revision and review of orders.

The Apex Court held that in view of law laid down by the Court, as discussed above, the High Court had clearly erred in law in treating the writ petition, which was filed for quashing of an FIR and had become infructuous, as a Public Interest Litigation, and issuing sweeping directions, without there being sufficient data and material before it to pass directions. There is no requirement u/s. 173 Code of Criminal Procedure for the Investigating Officer to produce the accused along with the charge-sheet. The High Court did not care to see that where there are several accused and only some of them could be arrested and remanded to judicial custody, and others are on bail, how all of them can be produced together by the police.

Precedent – Judgement delivered earlier in point of time – Must be respected and followed – Constitution of India, Article 141.

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New India Assurance Co. Ltd. vs. Hill Multi purpose Cold Storage P. Ltd. AIR 2016 SC 86

While considering the interpretation of section 13(2)(a) OF The Consumer Protection Act, 1986 the Court observed that in Central Board of Dawoodi Bohra Community and Anr. vs. State of Maharashtra and Anr. [(2005) 2 SCC 673], wherein a question had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal strength. After considering a number of judgments, a five-Judge Bench of the Supreme Court, opined as under:

“12. Having carefully considered the submissions made by the learned senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) The above rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down here in above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

In view of the aforestated clear legal position depicted by a five-Judge Bench, the subject is no more res integra. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (supra), was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant(supra)

Precedent – Binding precedent – Judicial propriety – Single Judge is bound by opinion of Division Bench: Constitution of India, Article 226

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Farooq Mohammad vs. State of M.P. & Others AIR 2016 AIR MP 10 (FB)

The petitioner filed writ petition before the High Court challenging the entire action of election on the ground that the notice period for convening the first meeting after general election was not in conformity with section 56 (3) of the Act. The sole ground was that the notice was dated 1.1.2015 and was dispatched to the Councillors only on 2.1.2015 for convening meeting on 6.1.2015. As a result, the entire action including election of Vice President and two members of Appeal Committee be declared as vitiated in law. The writ petitioner had relied on the decision of the Division Bench of our High Court in the case of Awadh Behari Pandey vs. State of Madhya Pradesh and others 1968 MPLJ 638. The learned Single Judge, however, doubted the correctness of the view taken by the Division Bench that requirement of dispatching the notice to convene first meeting after general election of the Council as per section 56 (3) of the Act, of seven (7) clear days before the first meeting is mandatory.

The Court observed that it was also not open to be doubted on the principles of stare decisis, in particular by the Single Judge. The Constitution Bench of the Supreme Court in the case of Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673 had laid down the law that a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

By now it is well established position that the Single Judge is bound by the opinion of the Division Bench and more so, on legal position which has been in vogue for such a long time if not time immemorial. Merely because some other view may also be possible, cannot be the basis to question the settled legal position. Such approach is not only counterproductive but has been held to be against the public policy.

Partition – Only partition effected by way of registered deed prior to 20/12/2004 debars daughter from staking an equal share with son in co-parcenary property : Hindu Succession Act 1956, section 6.

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Smt. Lokamani & Ors vs. Smt. Mahadevamma & Ors. AIR 2016 Karnataka 4

The Suit was in respect of four landed properties and one house property. The case of the plaintiffs was that they along with defendants 1 to 4 constituted undivided Hindu Joint Family owning ancestral agricultural lands and house property.

The Trial Court held that the plaintiffs had proved that the suit properties were joint family properties; the suit was maintainable and that it was not a suit for partial partition as contended by the defendants; the plaintiffs and Mahadevappa being Class-I heirs of the deceased Sannamadiah, were entitled to equal share in the suit properties as per section 8 of the Hindu Succession Act, 1956 (the Succession Act).

On appeal, the Hon’ble Court observed that the Explanation to sub-section (5) of section 6 of the Succession Act categorically declares that nothing contained in section 6 applies to a partition, which has been effected before 20th day of December 2004. In other words, if a partition had taken place in the family before 20th December 2004, a daughter cannot claim share in the co-parcenary property by virtue of the amendment to the Succession Act.

Further Explanation to sub-section (5) explains the meaning of partition for the purpose of section 6 as below: “Explanation: For the purposes of section 6, “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court.”

Thus, oral partition, palu-patti, unregistered Partition Deed are excluded from the purview of the word “partition” used in section 6. It is only the partition effected by way of a registered Deed prior to 20th December 2004, which debars a daughter from staking an equal share with a son in a co-parcenary property.

The High Court held that in the case on hand, admittedly there was no registered Partition Deed between Sannamadaiah and Mahadevappa, evidencing the alleged partition that took place in the year 2000. Even if there was a partition, oral or by an unregistered Partition Deed of the year 2000 as contended by the defendants, it could not be treated as a partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as coparceners along with Sannamadaih’s son Mahadevappa remained unaffected. The trial Court was fully justified in rejecting the contention of the defendants and holding that the plaintiffs were entitled to equal share with the son of Sannamadaiah in the suit properties, which were admittedly co-parcenary properties.

The court further observed that the Repealing and Amending Act, 2015 does not disclose any intention on part of Parliament to take away status of a co-percener conferred on a daughter giving equal rights with the son in co-parcenary property. Similarly, no such intention can be gathered with regard to restoration of sections 23 and 24 of Principal Act which were repealed by Hindu Succession (Amendment) Act, 2005. On the contrary, by virtue of Repealing and amending Act, 2015, the amendments made to the Succession Act in the year 2005, became part of the Act and the same is given retrospective effect from the day the Principal Act came into force in the year 1956, as if the said amended provision was in operation at that time. Thus, equal rights conferred on the daughter by the Amending Act have not been taken away by the Repealing Act. The main object of the Repealing and Amending Act is not to bring in any change in law, but to remove enactments which have become unnecessary.

Mortgage debts – Priority of charge recovery certificate in favour of bank cannot effect prior charge of mortgage : Transfer of Property Act – Section 48.

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Punjab & Sind Bank vs. MMTC Ltd & Ors. AIR 2016 Del. 15

The Debt Recovery Appellate Tribunal vide order dated 23.03.2011 accepted the First Respondent’s Minerals and Metals Trading Corpn’s. (MMTC) plea that the mortgage inuring in its favour had to prevail over the PSB’s claim in execution of a money decree and directing that proceeds from the sale of a property by the Recovery Officer be used first to satisfy MMTC claim. The Punjab and Sind Bank aggrieved by the order approached the Hon’ble Court.

The Hon’ble High Court observed that if the mortgage exists, it will create a prior charge over the property, being prior in time vide section 48 of Transfer of Property Act, 1982 (the TP Act). In the instant case, prior mortgage was created by deposit of title deeds in favour of MTC) Subsequently, the mortgagor also obtained cash credit facilities from Bank and defaulted in payment. MMTC invoked arbitration clause and procured award in its favour. The Bank initiated recovery proceedings under The Recovery of Debts Due to banks and Financial Institutions Act, 1993 (the RDDBFI Act). The award of arbitrator was sought to be executed as decree of Civil Court. The fight was between the two lenders over the priority of claims.

The Court held that the non obstante clause in section 34 of the RDDBFI Act would not override the prior charge. The non obstante clause would operate only where there is a conflict. The applicable rules themselves envision a situation where the Recovery officer is confronted with a property that is already charged. If an earlier mortgage existed it would take prior claim by virtue of section 48 of the TP Act.

The fact that the mortgage debt must be enforced by sale through a separate civil suit does not obviate the mortgage itself. So far as the Debt Recovery Officer concerned, Rule 11 merely requires him to investigate if evidence of a prior charge on the property exists, and then proceed accordingly. His task is not to finally give effect to the mortgage debt, nor is to deny its existence in law. His determination is not final and is subject to a civil suit that may be filed in that regard.

Nominee-Right of Nominee–Existence of Joint Family-Hindu widow is not coparcener in HUF of her husband: Hindu law Prior to amendment of the Hindu Succession Act, 2005.

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Shreya Vidyarthi vs. Ashok Vidyarthi and Ors. AIR 2016 SC 139

In the year 1937, one Hari Shankar Vidyarthi married Savitri Vidyarthi, the mother of the Respondent – Plaintiff. Subsequently, in the year 1942, Hari Shankar Vidyarthi was married for the second time to one Rama Vidyarthi. Out of the aforesaid second wedlock, two daughters, namely, Srilekha Vidyarthi and Madhulekha Vidyarthi (Defendants 1 and 2) were born.

The dispute in the present case revolves around the question whether the suit property, purchased by sale deed dated 27.9.1961 by Rama Vidyarthi was acquired from the joint family funds or out of her own personal funds.

The Hon. Court held that though the claim of absolute ownership of the suit property had been made by Rama Vidyarthi in the affidavit, she had also stated that she received the insurance money following the death of Hari Shankar Vidyarthi and the same was used for the purchase of the suit property along with other funds. The claim of absolute ownership is belied by the true legal position with regard to the claims/entitlement of the other legal heirs to the insurance amount. Such amounts constitute the entitlement of all the legal heirs of the deceased though the same may have been received by Rama Vidyarthi as the nominee of her husband. The above would seem to follow from the view expressed by this Court in Smt. Sarbati Devi and Anr. vs. Smt. Usha Devi : 1984 (1) SCC 424.

The facts that the family was peacefully living together at the time of the demise of Hari Shankar Vidyarthi; the continuance of such common residence for almost 7 years after purchase of the suit property in the year 1961; that there was no discord between the parties and there was peace and tranquility in the whole family were also rightly taken note of by the High Court as evidence of existence of a joint family. The execution of sale deed dated 27.9.1961 in the name of Rama Vidyarthi and the absence of any mention that she was acting on behalf of the joint family has also been rightly construed by the High Court with reference to the young age of the Plaintiff -Respondent (21 years) which may have inhibited any objection to the dominant position of Rama Vidyarthi in the joint family, a fact also evident from the other materials on record. The Court, therefore, held that there can be no justification to cause any interference with the conclusion reached by the High Court on the issue of existence of a joint family.

Issue also arose as to how could Rama Vidyarthi act as the Karta of the HUF in view of the decision of this Court in Commissioner of Income Tax vs. Seth Govindram Sugar Mills Ltd. : AIR 1966 SC 24 holding that a Hindu widow cannot act as the Karta of a HUF which role the law had assigned only to males who alone could be coparceners (prior to the amendment of the Hindu Succession Act in 2005).

While there can be no doubt that a Hindu widow is not a coparcener in the HUF of her husband and, therefore, cannot act as Karta of the HUF after the death of her husband, the two expressions i.e. Karta and Manager may be understood to be not synonymous and the expression “Manager” may be understood as denoting a role distinct from that of the Karta. Hypothetically, we may take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or as in the facts of the present case, where the sole male coparcener (Respondent – Plaintiff Ashok Vidyarthi) was a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the Karta in her capacity as his (minor’s) legal guardian. Such a situation has been found, and rightly, to be consistent with the law by the Calcutta High Court in Sushila Devi Rampuria vs. Income Tax Officer and Anr.: AIR 1959 Cal 697 rendered in the context of the provisions of the Income Tax Act while determining the liability of such a HUF to assessment under that Act. Coincidently the aforesaid decision of the Calcutta High Court was noticed in Commissioner of Income Tax vs. Seth Govindram Sugar Mills Ltd.

Vakalatnama – An Advocate who does not have Vakalatnama in his favour cannot concede claim or confess judgement affecting rights of party.

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Manuel Sons Financial Enterprises (P) Ltd. vs. Ramakrishnan and Ors. AIR 2016 Ker. 47.

An important and an interesting legal question arose before the Kerala High court about the authority of a counsel, who does not hold a vakalat for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for.

In this case while the suit for redemption of mortgage was pending, one advocate by name Sri Mahadevan endorsed on the reverse of the plaint, said to be on behalf of the defendant company, that it had no objection in decreeing the suit. On the basis of this endorsement, learned trial Judge passed a decree in the suit as prayed for on 29.06.2006. Later on, the said decree was challenged by the defendant.

The High Court held that from the records of the trial court it was found that the Managing Director of the defendant company had authorised Advocate Sri Unnikrishnan by executing a vakalat to appear and act on behalf of the company. Advocate Sri. Mahadevan’s name, who made the endorsement on the reverse of the plaint on 27.06.2006 agreeing to decree the suit, was not seen mentioned in the said vakalat. Further, there was no reason brought out from the records to hold that the counsel who filed a vakalat for the defendant company had authorised another counsel to plead on his behalf for the party. Even if one assumes so, such counsel gets no authority to confess judgment against the interest of the party for whom he was only authorised to plead. In other words, an advocate cannot, unless he has filed in the court a memorandum of appearance (vakalat) prescribed by the Rules, concede the claim or confess judgment affecting the rights of a party as it exceeds the authority. The power to “plead” would include within its scope and ambit, the right to examine witnesses, seek adjournments, address arguments, etc. But such a pleader however cannot have the power to compromise a case or withdraw a case or to do any other act which may have the effect of compromising the interest of the client. No court shall accept or act on such a compromise or confession or admission without verifying whether the advocate doing so had been authorised by the party by executing a vakalatnama. A decree passed in a case on the basis of an endorsement by an advocate, who had no vakalat in the case, cannot be said to be a consent decree.

Tenants – tenants covered by the Rent Control Act cannot be dispossessed in an action initiated by the bank against the landlord debtor under the SARFAESI Act. [SARFAESI Act, 2002, Section 14 ]

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Vishal N. Kalsaria vs. Bank of India and Others. AIR 2016 SC 530

The landlords had approached the Bank of India for a financial loan, which was granted against equitable mortgage of several properties belonging to them, including the property in which the Appellant before the Apex Court was a tenant. As the landlords failed to pay the dues within the stipulated time in terms of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAE SI Act), their account became a non-performing asset. Consequently, the Bank filed an application before the Chief Metropolitan Magistrate, Mumbai, u/s. 14 of the SARFAE SI Act for seeking possession of the mortgaged properties which were in actual possession of the Appellant. The Appellant then filed an application as an intervenor to stay the execution of the order passed by the Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate vide order dated 29.11.2014 dismissed the application filed by the Appellant. The matter ultimately reached the Apex court.

The broad point which required consideration was whether a protected tenant under the Maharashtra Rent Control Act, 1999 (Rent Control Act) can be treated as a lessee and whether the provisions of the SARFAE SI Act will override the provisions of the Rent Control Act.

The Apex court also laid down the law where the tenancy is not registered. The Apex court held that the provisions of the SARFAE SI Act cannot be used to override the provisions of the Rent Control Act. Once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act.

The Apex Court further held that according to section 106 of the Transfer of Property Act, 1882 a monthly tenancy shall be deemed to be a tenancy from month to month and must be registered if it is reduced into writing. The Transfer of Property Act, however, remains silent on the position of law in cases where the agreement is not reduced into writing. If the two parties are executing their rights and liabilities in the nature of a landlord – tenant relationship and if regular rent is being paid and accepted, then the mere factum of non-registration of deed will not make the lease itself a nugatory. Further, in terms of section 55(2) of the Rent Control Act, the onus to get such a deed registered is on the landlord. In light of the same, neither the landlord nor the banks can be permitted to exploit the fact of non-registration of the tenancy deed against the tenant.

Partition of property – A Hindu widow can on her own file suit for partition under Hindu Succession Act 1956 in respect of her husband’s share in the property. [Hindu Succession Act, 1956]

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Santosh Popat Chavan & Others vs. Mrs. Sulochana Rajiv & Others. AIR 2016 Bombay 29

The plaintiff-respondent herein, Sulochana, widow of Rajiv Chavan filed Civil Suit for partition against the brothers and sister of her deceased husband. The matter ultimately travelled to the Bombay High Court.

The Bombay High Court in the case of Ananda Krishna Tate since deceased by Legal Heirs vs. Draupadibai Krishna Tate and others; 2010 (1) BCJ 714, had taken a view that a Hindu woman (mother, in that case) had no right to file a suit for partition under the provisions of the Hindu Succession Act, 1956 (the Act of 1956), which was earlier available as per section 3(3) of the Hindu Women’s Rights to Property Act, 1937 (the Act of 1937). In the absence of any other coparcener in the joint family demanding partition of the joint family property, the suit on her own was not maintainable.

The Bombay High Court held that the Hindu Succession Act was brought into force in the year 1956 and for emancipation of right to the women, the widow was given exclusive right to the property by removing the limited right that was given to her under the Act of 1937. Thus, right to share has been given to a widow upon death of her husband as per the Act of 1956. Further, the Act of 1956 does not carve out any prohibition on her from filing the suit independently. Hence, it must be held that she has the right to file the suit independently.

Thus, the right having been given to a widow or mother or women under the Act of 1956, she cannot be told that though she has a right to get the share, she cannot file a suit for recovery of share of her deceased husband as she had no right to file a suit. When a right is given, the remedy has to be there namely remedy to file a suit for partition, which cannot depend upon the desire or demand of other coparceners in the family to have a partition of the joint family property. The decision in the case of Ananda (supra) was held to be per incuriam.

Tenant – Where partnership is held to be created to conceal the real transaction of subletting, tenant is liable to be evicted on grounds of wrongful subletting. [Bombay Rents Act, 1947, Section 13]

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Smt. Taralakshmi Maneklal vs. Shantilal Makanji Dave and Ors. AIR 2006 (NOC) 228 (BOM).

The Bombay High Court was concerned with a petition where Landlords suit for eviction of tenant on the ground of unlawful subletting without consent was dismissed by the lower court and confirmed by the appellate court. According to the tenant, whilst retaining the possession of the suit premises he had merely entered into partnership for carrying on business through the suit premises and as per the law laid down by the Apex Court in the case of Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri & Ors. (1987) 3 SCC 538, such arrangement, does not amount to subletting. According to the Landlord, the partnership was merely a cloak to conceal the real transaction of subletting. It was held that that the clauses in the partnership deed that profit of partnership would be shared by sub-tenants only and tenant would receive fixed monthly amount irrespective of profit or loss in partnership business showed that partnership was not genuine and it was created to conceal real transaction of subletting. It was held that the tenant was liable to be evicted.

Stamp Papers – Use of old stamp papers i.e., stamp paper purchased more than six months prior to proposed date of execution may certainly be a circumstance that can be used as a piece of evidence to cast doubt on authenticity of agreement but that cannot be clinching evidence to invalidate the agreement. [Indian Stamps Act,1899, Section 54].

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Thiruvengadam Pillai vs. Navaneethammal and Anr (2008) 4 SCC 530.

In
this case, the Apex Court was concerned with the issue whether where
the stamp papers used in the agreement of sale were more than six months
old, they were not valid stamp papers and consequently, the agreement
prepared on such ‘expired’ papers was also not valid. This issue
required interpretation of section 54 of The Indian Stamps Act, 1899.

The
Apex Court held that The Indian Stamp Act, 1899 nowhere prescribes any
expiry date for use of a stamp paper. Section 54 merely provides that a
person possessing a stamp paper for which he has no immediate use (which
is not spoiled or rendered unfit or useless), can seek refund of the
value thereof by surrendering such stamp paper to the Collector provided
it was purchased within the period of six months next preceding the
date on which it was so surrendered. The stipulation of the period of
six months prescribed in section 54 is only for the purpose of seeking
refund of the value of the unused stamp paper, and not for use of the
stamp paper. Section 54 does not require the person who has purchased a
stamp paper, to use it within six months. Therefore, there is no
impediment for a stamp paper purchased more than six months prior to the
proposed date of execution, being used for a document. Even assuming
that use of such stamp papers is an irregularity, the court can only
deem the document to be not properly stamped, but cannot, only on that
ground, hold the document to be invalid.

The fact that very old
stamp papers of different dates have been used, may certainly be a
circumstance that can be used as a piece of evidence to cast doubt on
the authenticity of the agreement. But that cannot be a clinching
evidence.

Precedent – Benefit of Judgements in rem affirmed by Supreme Court should enure to all similarly situated persons and it is impermissible for High Court to reopen such issues which are conclusively determined by previous judgements.

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Sunil Kumar Verma And ors vs. State Of Uttar Pradesh & Ors (2016) 1 SCC 397.

The U.P. State Cement Corporation Limited (for short, ‘the Corporation’) was wound up on 8th December, 1999. In the State of U.P. existed a set of rules, namely, the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991 (for short, ‘the 1991 Rules’).

After the Corporation was wound up, one Mr. Shailendra Kumar Pandey and some others, who were the employees of the Corporation, filed Civil Miscellaneous Writ Petition No. 36644 of 2003, seeking absorption under the aforesaid Rules. The learned Single Judge hearing the writ petition cogitated upon the U.P. Absorption of Retrenched Employees of the State Government/Public Sector Corporation in Government Service (Recession) Rules, 2003 (the 2003 Rules) and, eventually came to hold that the Absorption Rules, 1991 were applicable. This decision was confirmed by the Division Bench of the High Court as well as the Apex Court.

When the matter stood thus, all the affected employees of the Corporation felt relieved, inasmuch as the controversy had travelled to the Apex Court and was put to rest. The impugned writ petitions which were preferred in the year 2001 were still pending before the High Court and the expectation of the Petitioners therein was that similar benefits shall enure to them, for the writ petitions instituted on later dates had been disposed.

The Learned single Judge allowed the Writ petitions. However, the Division Bench dismissed the writ petition on the ground that in Mr. Shailendra Kumar Pandey and other cases, the Recession Rules 2003 were not adverted to by the division benches.

In appeal before the Apex Court, allowing the appeal the Court held that there had already been interpretation of 2003 Rules by the learned Single Judge which had been affirmed up to this Court. In such a situation, we really fail to fathom how the Division Bench could have thought of entering into the analysis of the ratio of the earlier judgment and discussion on binding precedents when the controversy had really been put to rest by this Court. The decision rendered by this Court inter se parties was required to be followed in the same fact situation. When the factual matrix was absolutely luminescent and did not require any kind of surgical dissection, there was no necessity to take a different view.

HUF – Coparcener – Eldest daughter is entitled to be the Karta of the HUF – Amendment to the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005 – All rights which were available to a Hindu male are now also available to a Hindu female. A daughter is now recognised as a co-parcener by birth in her own right and has the same rights in the co-parcenary property that are given to a son. [Hindu Succession Act 1956, Section 6]

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Sujata Sharma vs. Manu Gupta 226(2016)DLT647/ MANU/DE/4372/2015

The High Court had to consider whether the plaintiff, being the first born amongst the co-parceners of the HUF property, would by virtue of her birth, be entitled to be its Karta. HELD by the High Court upholding the claim:

(i) It is rather an odd proposition that while females would have equal rights of inheritance in an HUF property, this right could nonetheless be curtailed, when it comes to the management of the same. The clear language of section 6 of the Hindu Succession Act does not stipulate any such restriction.

(ii) The impediment which prevented a female member of a HUF from becoming its Karta was that she did not possess the necessary qualification of co-parcenership. Section 6 of the Hindu Succession Act is a socially beneficial legislation; it gives equal rights of inheritance to Hindu males and females. Its objective is to recognise the rights of female Hindus as co-parceners and to enhance their right to equality apropos succession. Therefore, Courts would be extremely vigilant apropos any endeavour to curtail or fetter the statutory guarantee of enhancement of their rights. Now that this disqualification has been removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta.

(Editor’s note: Readers are advised to refer to the feature Laws and Business by Anup Shah in various issues of BCAJ for a complete understanding of the subject).

HUF – Coparcenary – Rights of daughters in the coparcenary property governed by Mitakshara law are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. [Hindu Succession Act, 1956, Section 6]

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Prakash and Ors vs. Phulavati & Ors AIR 2016 SC 769.

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest of Coparcenary property. With a view to confer right upon the female heirs, even in relation to the joint family property governed by Mitakshara law, the Parliament amended section 6 by enacting the Hindu Succession (Amendment Act), 2005 which came into effect from 9-9-2005. Phulavati, daughter of Late Yeshwanth Chandrakant Upadhye (died on 18-2-1988) filed suit for partition in the Civil court somewhere in the year 1992. She amended her claim in the suit in terms of the Amendment Act of 2005.

The Karnataka High Court, on interpretation of section 6, held that the Amendment Act of 2005 would be applicable to pending proceedings. The matter travelled to the Apex Court.

The Apex Court held that the text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’. Accordingly, it was held that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. An amendment of a substantive provision is always prospective, unless either expressly or by necessary intendment it is retrospective. Even a social legislation cannot be given retrospective effect, unless so provided for or so intended by the legislature. Accordingly, the order of the High Court was set aside and the matter was remanded to the High Court for a fresh decision in accordance with law.

Gift of Tenanted property – Under Mohammedan law, if the donor and donee being husband and wife are residing in the same property it is not essential that the donor should depart from the premises to deliver possession to the donee and same law will apply even when part of the premises are occupied by the tenants.

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Mehmood and Ors. vs. Nargis Begum and Ors. AIR 2016 (NOC) 172 (Cal).

A
suit was brought about by the children of first wife of one Md. Bashir,
a Mohammedan, against his widow and the off-springs through his second
marriage for a declaration that the transfer by Md. Bashir of certain
premises to his widow by the alleged registered deed of gift dated 3rd
August, 2003 is voidable.

The alleged deed of gift was
challenged on the ground that under Mohammedan law, a gift of immovable
property is complete and valid only by delivery of possession. 80% of
the property was tenanted and that to make the gift complete and valid
there had to be delivery of possession of the tenanted portion by the
tenants attorning the tenancy in favour of the donee. Further, Md.
Bashir continued to issue rent receipts in his own name. No mutation of
the property with Kolkata Municipal Corporation was made.

The
court held that Chapter VII of the Transfer of Property Act relating to
gifts specifically stipulates in section 129 thereof that the provisions
in the Chapter do not “affect any rule of Mohammedan law.” This simply
meant that the gift would have to be justified in terms of Mohammedan
law.

Under the Mohammedan law, if the donor and donee are
residing in the same property, it is not essential that the donor should
depart from the premises to deliver possession to the donee. The gift
is completed by any overt act on the part of the donor to divest himself
of the control over the property. (paragraph 152 (2) of Mohammedan law
by Mulla). In paragraph 153, Mulla says that the same rule applies in
the case of husband and wife where the property is used for the joint
residence or is let out to tenants or partly used for residence and
partly let out to tenants. The husband is the natural manager of the
wife. Even if after gift of the property the husband collects rents from
the tenants, he is deemed to be doing so as the manager of his wife.
(paragraph 153 of Mulla). Hence, there were sufficient overt acts to
make the gift valid.

Co-operative Society – Uttar Pradesh Cooperative Societies Act, 1965 providing that every Co-operative Society shall be covered by the Right to Information Act, 2005 is unconstitutional.

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MECON Indraprastha Sahakari Avas Samiti Ltd. and Ors. vs. State of U.P. and Ors. AIR 2016 (NOC) 170 (ALL)

Before the Lucknow bench of the Allahabad High Court, a challenge was raised to the constitutional validity of the provisions of section 113(2) of the Uttar Pradesh Cooperative Societies Act, 1965 whereby the state legislature enacted a provision which stipulated that the Right to Information Act, 2005 – enacted by Parliament – shall cover all cooperative societies in the state.

The provision of section 113(2) is as under : “113(2) Every co-operative society shall be covered by the Right to Information Act, 2005.”

The challenge to the constitutional validity of section 113(2) was premised on the basis that as a result of the amendment, all co-operative societies in the State were brought within the purview of the RT I Act, enacted by the Parliament, irrespective of whether or not these cooperative societies constituted public authorities within the meaning of section 2(h) of the Central Act, i.e. the RT I Act.

The Court held that the issue which was required to be considered was whether the state legislature could, by a legislative amendment to the Act, have mandated that all cooperative societies in the State would be governed by the RT I Act.

The court further held that unless the state legislature is competent to enact a law on the subject, it would not be open to it to provide that the RT I Act which has been enacted by the Parliament must apply to all co-operative societies in the State. This was clearly impermissible and fell outside the legislative competence of the state legislature. Hence, the provisions of section 113(2) were held to be unconstitutional.

Strictures against Department – Delay of 22 months in passing order after hearing – No reason for inordinate delay

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S2 Infotech Pvt. Ltd. vs. UOI (2015) (323) E.L.T. 464 (Bom.)(HC)

There was a recovery or demand of Service Tax. A reply to the show cause notice was given by the petitioners on 21/6/2010. On 1/8/2012, a personal hearing was given and concluded on the same date. However, the impugned order was passed after a period of almost 22 months.

The petitioner relied upon a series of circulars issued by the Central Board of Excise and Customs emphasising that the Law laid down by the Hon’ble Supreme Court in Anil Rai vs. State of Bihar, 2009 (233) E.L.T. 13 (S.C.) : 2009 (13) S.T.R. 465 (S.C.) would apply and there should not be any unreasonable delay in passing adjudication order which will be causing difficulties and obstacles in realising Public revenue expeditiously. The Hon’ble Supreme Court has clarified that inordinate, unexplained and negligent delay in pronouncing judgments hampers the exercise of right of appeal. Therefore, the belief, faith and trust of the people in the institution and judiciary is shaken by such delay. This dictum also applies to the quasi judicial adjudication as is contemplated by laws such as Central Excise Act, 1944, Customs Act, 1962 and Finance Act, 1994 as amended from time to time. That is why these circulars were issued.

The court was of the opinion that prima facie there appears to be no explanation for the inordinate delay. The court further observed that even if there is any restructuring and reorganising of the Department of Service Tax and the Commissionerate thereof, there is no reason why such an inordinate delay should occur.

Eventually, all Commissioners must realise that delay in proceedings and passing of orders would be contrary to public interest. They are conferred with powers to determine and adjudicate the demands raised only in a hope that they take steps expeditiously and recover outstanding amount from the defaulters, if any. Hence, sitting on files for months together and sometimes beyond the financial year is, thus, not conducive to the interest of nation’s economy. The trust and faith reposed in them is also then betrayed. If no action is taken against such officers and they are allowed to go scot-free, then, apart from the Revenue getting involved in litigation in higher Courts, Tribunal and others would be encouraged.

Therefore, the Court directed the Chief Commissioner of Service Tax to file a comprehensive affidavit by narrating measures that he proposes to take or has already taken. He shall, then, disclose number of files and matters pending and serially. It should not happen that one who comes to Court, challenges the adverse order only on the ground of delay, the High Court, then, directs that the matter be taken and decided out of turn. The Court observed that the Commissioner has to enlighten us as to how much time would be taken at the end of his Commissionerate to dispose of pending cases.

Evidence – Secondary Evidence – Photocopy of true copy of document – Is inadmissible when existence of Original document is disputed : Evidence Act, 1872, Section 63(2) & (3) & 65

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Brij Mohan vs. State of Rajasthan AIR 2015 (NOC) 1168 (Raj.)

In a case where original documents are not produced at any time, nor any factual foundation has been laid for giving secondary evidence, the secondary evidence relating to contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. Secondary evidence must be authenticated by foundational evidence that the alleged copy is, in fact, a true copy of the original. Mere admission of a document in evidences does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Clause 2 of section 63 provides that secondary evidence means the copies made of their original by mechanical process, which in themselves ensure the accuracy of the copy, and copies compared with such copies, which can be termed as secondary evidence. Clause 3 of section 63 of the Indian Evidence Act covers the kind of document which the petitioner sought to produce as secondary evidence.
Illustration (a) refers to photograph of original is secondary evidence of its contents, though the two have not been compared but if it is proved that the thing photographed was the original. Illustration (b) refers to copy compared with copy of a letter made from copying machine as secondary evidence of the contents of letter if it is shown that the copy made by copying machine was made from the original.
Illustration (c) covers a copy transcribed from a copy, but afterwards compared with the original as secondary evidence.

The Hon’ble Court observed that in the instant case, the original document is claimed to be relating to the year 1965, the era when the use of the photocopy machines and photocopier was not in vogue. Besides, it cannot be accepted as secondary evidence because the document, which sought to be produced, is not a photocopy of the original but is a photocopy of the true copy. This is not a true copy of the original, which may have been compared with its original by the attesting authority but is the document, which is claimed to be photocopy of the true copy of its original. Not only the existence of the original of this document is disputed but the attestation of the true copy also has not been ‘proved’. Therefore, the said photocopy of the true copy cannot be said to be admissible as secondary evidence.

Additional Evidence – Appellate court can suo motu receive additional evidence either oral or documentary – For pronouncing a satisfactory judgment: CPC 1908, 0.41 R. 27

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N. Natarajan vs. Executive Officer, Chitalpakkam Town Panchayat, Chennai AIR 2015 (NOC) 1305 (Mad.)(HC).

In the instant case, the fundamental question was whether document granting patta was a true document or a forged document.

The Trial Court had held the same to be a genuine document because the other registers were not produced before it. Only to resolve this issue and the additional issue as to whether the plaintiff had got title to 1000 sq. ft. of land, the truthfulness of the document had to be ascertained and without ascertaining this fact, the Court cannot pronounce a satisfactory judgment. Thus, for pronouncing a satisfactory judgment, the oral evidence of witness and the documentary evidence are absolutely necessary. In the absence of the same, the High Court cannot pronounce a satisfactory judgment. When forgery is alleged, the additional evidence was absolutely required in order to find out the truth.

There is no prohibition for the Court to go into the question of facts, provided the Court is satisfied that the findings of the Courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded by the Court below are perverse.

So far as the phrase “to enable it to pronounce judgment” as expressed in Sub-Rule 1(b) of C.P.C. is concerned, the true test is as to whether in the absence of the additional evidence sought to be adduced whether the Court would be in a position to pronounce the judgment from the other materials already available on record or not. If the Court finds that in the absence of the additional evidence sought to be produced (either oral or documentary), the Court could effectively and satisfactorily adjudicate upon the issues so as to pronounce a satisfactory judgment then, the Appellate Court shall not receive additional evidence either oral or documentary.

Additional evidence, whether oral or documentary, can be received by the appellate Court either at the instance of the parties as provided in Sub-Rules (1)(a) and (1)(aa) or suo motu by the Court as provided in Sub-Rule (1)(b) provided any one of the contingencies enumerated in Sub- Rule 1(b) exists impelling the Appellate Court to receive such additional evidence, both oral and documentary. To exercise the power to receive additional evidence under Sub-Rule (1)(b), it is not at all necessary that a party to the appeal should make an application. What is required is the satisfaction of the Appellate Court that the additional evidence is required either for pronouncing the judgment satisfactorily or for any other substantial cause.

Thus, it was held that the court is fully empowered to receive additional evidence at the Second Appeal stage.

Reference to larger Bench: Right of Reference – Chief Justice in his administrative capacity cannot constitute a larger bench for the purpose of deciding a pure question of law: Gujarat High Court Rules, 1993.

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Suo Moto vs. Gujarat High Court Advocate’s Association; 2015 (320) E.L.T. 564 (Guj.)(HC)

A
preliminary objection as to the maintainability of certain References
at the instance of the then Chief Justice of the Court was raised.

According
to the learned Counsel, a reference to a Larger Bench can be initiated
only at the instance of a Judge sitting singly or the Judges of a
Division Bench or even the Judges of a Larger Bench, provided the said
Court while dealing with a judicial matter proposes to disagree with the
view earlier taken by any other Bench of this Court on the self same
point. According to the learned Counsel, in these cases, the
subject-matter of dispute is the proposition of law laid down by a
Division Bench of this Court consisting of Justice Shethna and Justice
Patel and, thus, unless another Judge of this Court sitting singly or
another Division Bench, in judicial side, disagrees with the above view,
there is no scope of referring the matter to the Chief Justice for
constitution of a Larger Bench. The decision given by the said Division
Bench while laying down the proposition of law has not been appealed
against by the aggrieved party and has attained finality and the said
decision is binding upon a Division Bench or a learned Single Judge of
this Court as a precedent, while deciding any subsequent judicial
matter. In such circumstances, the Chief Justice of this Court, sitting
in administrative capacity, is not authorised by law to make a Reference
to a Larger Bench for the purpose of deciding the correctness of the
said decision of the Division Bench. In other words, according to the
learned Counsel, the initiation of Reference is not permissible under
law, unless there exists a pending judicial matter where the Judges of
the Bench or a learned Single Judge has referred the matter on judicial
side before the Chief Justice. The learned Counsel, therefore, prayed
for dismissal of these References as not maintainable.

The
Hon’ble Court referred to Rules 5 and 6 of the Gujarat High Court Rules,
1993, and observed that Rule 5 authorises either a learned Single Judge
or a Division Bench to refer the matter pending before them or any
question arising in such matter to a Division Bench of two-Judges or a
larger Bench respectively. On such Reference being made, it is the duty
of the Chief Justice to constitute either a Division Bench or a larger
bench for the decision on the question referred or for decision of the
matter referred.

Rule 6 of the Gujarat High Court Rules, on the
other hand, authorises the Chief Justice of the High Court to direct
either by a special or a general order that any matter or class of
matters should be placed before a Division Bench or a Special Bench of
two or more Judges.

Thus, Rule 6 of the Rules of 1993 merely
authorises the Chief Justice to place any pending matter or any type of
pending matters to a Division Bench or a Larger Bench notwithstanding
the fact that according to the Rules of 1993, those matters are required
to be decided by any learned Single Judge or a Division Bench fixed by
the Chief Justice in exercise of his power of fixation of roster. The
aforesaid Rule also authorises the Chief Justice to place the matter,
which is otherwise required to be heard by a Division Bench, for hearing
before a Larger Bench.

In the matter of References, the source
of Reference must be a judicial order passed by either a learned Single
Judge or any Bench while deciding a judicial matter. The Chief Justice,
in his administrative capacity, cannot constitute a Larger Bench for the
purpose of deciding a pure question of law simply because the Chief
Justice is of the view that such question, notwithstanding a decision of
a Division Bench of this Court in one way or other, is required to be
heard by a Larger Bench. Even if on any important question, there is no
decision of this Court, such fact cannot enable the learned Chief
Justice to constitute a Larger Bench suo motu in exercise of
administrative power.

The Court also considered the inherent power of the Chief Justice as the “muster of roster”.

A
right of Reference, like the one of appeal, review or revision, is a
substantive right and is a creature of statute and should be exercised
strictly in the manner as provided for in the statute which creates such
right.

Thus, it was held that there is no scope of referring
any question at the instance of the Chief Justice in his administrative
capacity to a Larger Bench which is not preceded by a Reference at the
instance of a Court sitting in judicial capacity and relating to any
matter pending in such Court.

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Public authority – Co-operative Societies – is not public authority – Right to information Act 2005 section 2(h)

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Public Information officer, Illayankudi Co-op. Urban Bank Ltd; Sivagangai District vs. Registrar, Tamil Nadu Information Commission, Chennai & Ors.; AIR 2015 Madras 169 (HC)

The question which fell for consideration before the Hon’ble Court was whether a co-operative registered under the Tamil Nadu Co-operative Societies Act, 1983, is a “public authority” within the meaning of section 2(h) of the Right to Information Act, 2005 ( “RT I Act”).

It was contended that the co-operative society is not a body, which is controlled by the Government and hence, does not fall within the definition of section 2(h) of the RTI Act. Further, it is contended that the word “control” in section 2(h) of the RT I Act relates to administrative control and not a regulatory control and the, provisions relied on by the Writ Court and the judgments referred pertain to a regulatory control and are not applicable to the facts and circumstances of the case. It was further contended that though the co-operative societies are manned by Special Officer appointed by the Government, it would not become a “public authority” to be covered under the provisions of RT I Act.

In the case of Thalappalam Ser. Coop., Bank Ltd., and Others, (AIR 2013 SC (Supp) 437), appeals were filed by co-operative societies and the question which fell for consideration before the Hon’ble Supreme Court was whether a co-operative society registered under the Kerala Cooperative Societies Act, 1969, will fall within the definition of “public authority” u/s. 2(h) of the RT I Act and be bound by the obligation to provide information sought for by a citizen under the RTI Act. On the first issue with regard to co-operative societies and Article 12 of the Constitution, the Hon’ble Supreme Court pointed out that a clear distinction can be drawn between a body which is created by a statute and a body much after having come into existence is governed in accordance with the provisions of a statute and the societies which were subject matter of the appeals were held to fall under the later category, i.e., governed by the Kerala Societies Act and not statutory bodies, but only body corporate within the meaning of section 9 of the Kerala Co-operative Societies Act. The Hon’ble Supreme Court, held that the said societies which were the subject matter of those appeals will not fall within the expression ‘State’ or ‘instrumentality of the State’ within the meaning of Article 12 of the Construction.

On the next issue relating to Constitutional provisions and Co-operative autonomy, it was held that co-operative societies are not treated as a unit of Self Government like Panchayat and Municipalities. The Hon’ble Supreme Court then proceeded to examine the provisions of the Right to Information Act, the effect of words “substantially financed” and the restrictions and limitations, which could be imposed in the larger public interest and held that the co-operative societies registered under the Kerala Co-operative Societies Act will not fall within the definition of “public authority” as defined u/s. 2(h) of the RTI Act.

In the present matter, the Hon’ble Court held that the legal issue arising in the appeals are squarely covered by the decision of the Hon’ble Supreme Court in the case of Thalappalam Ser. Co-op. Bank (supra). Further, the distinction sought to be drawn by the learned counsel for the respondent stating that the provisions of the RT I Act would be applicable to cases where the Government Officers are appointed to function as Special Officers of the society, when there is no elected Board of Directors, could hardly make any difference. Thus, the appeals were allowed holding that societies will not fall within the definition of “Public Authority” as defined u/s. 2(h) of the RTI Act.

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Probate – Revocation – Notice not served on daughter and wife of testator before grant of probate – Probate liable for revocation: Succession Act, 1925 section 263

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Kalyani Maite (Smt.) & Anr vs. Shridam Maite; AIR 2015 (NOC) 1008 (Cal.) (HC)

The appellants are the wife and daughter of one Rabindra Nath Mite who died on 05.03.1994. Rabindra Nath Maite had three brothers by full blood. The appellants/petitioners have pleaded that the Will dated 08.01.1990 alleged to have been executed by Rabindra Nath Maite is fake and fabricated. It is alleged that Rabindra Nath Maite had no intention to give the property described in the said Will to his nephews-Samir Maite and Somnath Maite by appointing the respondent, Shridam Maite (brother) as the executor of the said Will. The appellants have specifically stated that the deceased Rabindra Nath Maite was not in good terms with his brothers including the respondent.

The appellants have also pleaded that necessary notices were not served on the appellants in the probate proceeding, though the appellants have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs.

The Hon’ble Court observed that section 263 of the Indian Succession Act, 1925 lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. It is laid down in the Explanation to the said section 263 that just cause shall be deemed to exist where (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

In the present case, the appellants had specifically pleaded in the application before the Trial Court that no notice from the Court was served upon the appellants in respect of the probate proceeding and no notice was received by the appellants. The respondent Shridam Maite had stated in his evidence that the notice of probate proceeding was served on the appellants

The Court observed that the appellant Mithu Biswas has specifically denied her signature on the notice alleged to have been served on the appellants in connection with the probate proceeding. As the appellant Mithu Biswas has denied her signature on oath on the notice of the probate proceeding, the onus is shifted on the respondent to prove that that notice was duly served on the appellants by the Court bailiff. The respondent could have discharged this onus by examining the bailiff as witness who is alleged to have served the notice of the probate proceeding on the appellants. In the absence of the examination of the bailiff as witness by the respondent, it was held that the respondent has failed to establish that the citations of the probate proceeding were served on the appellants before grant of probate. The non-service of citations upon the appellants who have interest in the estate of the deceased Rabindra Nath Maite as his legal heirs is the just cause for revocation of grant of probate.

Since the citations of the probate proceeding was not served upon the appellants who have interest in the estate of the deceased as legal heirs, the grant of probate is liable to be revoked.

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Natural Justice – Right of cross examination – Is integral part of natural justice principles – Affidavit – Not evidence: Evidence Act, 1872 section 3:

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Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors. AIR 2013 SC 58

The Hon’ble Court observed that not only should the opportunity of cross examination be made available, but it should be one of effective cross examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice.

The Hon’ble Court observed that affidavits are not included within the purview of the definition of “evidence” in section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (CPC). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact or situation. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view stands fully affirmed, particularly in view of the amended provisions of Order XVIII, Rules 4 and 5 of the CPC.

When a document is produced in a court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true. If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under Order 19 of the CPC and the Evidence Act, both of which incorporate the general principles.

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Application for restoration – Dismissal on ground that petition and affidavit were signed by counsel and not by party: CPC 1908 Order 9, Rule, 9

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Balkrishnan vs. Geetha N.G. ; AIR 2015 Kerala 223 (HC)

Cases were filed by spouses against each other before the Family court. Husband filed petition for joint trial of all the cases. On the date of hearing, counsel for the husband was not present and the petitions filed by the husband were dismissed for default. The counsel filed a petition to restore the cases and the affidavit in support of the petition was sworn by the counsel. The Family Court dismissed the petition on the ground that the petition and the affidavit were signed by the counsel and not by the party. Appeal was filed by the petitioner contending that the counsel was authorised to swear the affidavit and file the petition for restoration.

The Court held that a lawyer could file a petition, on behalf of the party he represents, under Order IX, Rule 9 of Code of Civil procedure duly signed by him on behalf of the party he represents, even though the vakalatnama did not expressly authorise an advocate to file an application for restoration. If the court is satisfied that there was no express prohibition in doing so, it has to assume that the counsel had implied authority to file such application. Thus, it was held that there was sufficient cause for the petitioner’s counsel for presenting the above petition in the Family Court and it cannot be said that the petition, filed by a lawyer is not in accordance with the law. Therefore, the order dismissing petition to restore the cases passed by the Family Court was set aside.

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Nominee – Insurance claim – Nominee is only custodian of amount – Insurance Act, 1938 section 39(6):

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Sailabala Barik & Anr vs. Divisional Manager LIC of India and Ors. AIR 2015 Orissa 102

The petitioner No. 1 got married to one Nimai Charan Barik on 10th March, 1996. Her husband died on 11th July, 2007 while in service of the Government. It was alleged that the petitioner No. 1’s husband during his life time had three different policies with opposite party No. 1 and opposite party No. 1 being Head of the Organisation was accountable for release of the amount involved in all the above three polices. The case of the petitioner No. 1 was that after the death of her husband she came to know that all the policies bore the name of the opposite party No. 4 as the nominee. Petitioner alleged that even though the opposite party No. 4 was a nominee, he was not entitled to the amount involved in the said policies. She alleged that even though opposite party No. 4 was not the successor to the policy holder, yet as a nominee, he was attempting to grab the amount involved in all the three above policies. The petitioner disclosed that the opposite party No. 4 happened to be the elder brother of petitioner No. 1’s husband.

After coming to know that opposite party No. 4 was attempting to usurp the proceeds of the policies, the petitioner No. 1 submitted a representation before the opposite party No. 1 on 24.09.2007. The opposite party No. 3 vide letter dated 29.09.2007 intimated her that the policy had a valid nomination in favour of opposite party No. 4 and as a consequence of which the amount involved in the policy following the conditions therein could not be released in their favour. The opposite parties relied on section 39(6) of the Insurance Act 1938. The Hon’ble Court observed that there was no doubt that the amount involved in the policies could be released in favour of the nominee. Question involved in the present case is whether nominee was entitled to the money involved in the policies? There was no denying the fact that the opposite party No. 4 was the nominee in all the policies and as nominee he would be the custodian of the amount involved. Question as to successors in interest would be entitled to such amount has been tested in the Hon’ble Apex Court and the Hon’ble Apex Court in deciding such a dispute in case of Smt. Sarbati Devi and another vs. Smt. Usha Devi, : A.I.R. 1984 Supreme Court 346. Wherein it was held that.

It is only successors of the deceased entitled to the amount involved in the Insurance Policy. The nominee is only the custodian of the amount and that does not mean the amount belonged to the nominee or nominees.

Thus, in view of the provision as contained in sub-section (6) of section 39 of The Insurance Act, 1938, and the decision of Hon’ble Apex Court, law is settled that the nominee is only the custodian of the amount involved in the Insurance Policies and the successors of the policy holder would be the persons entitled to the amount involved in the policies. The petitioners were directed to appear before the Insurance Company with their identification and the amount would be released by the Insurance Company in favour of the petitioners in the presence of the nominee.

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Precedents – Obiter Dictum – Is something said by a judge and has no binding authority: Constitution of India – Article 141

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Laxmi Devi vs. State of Bihar AIR 2015 SC 2710

The Hon’ble Court observed that an obiter dictum, of course, is always something said by a judge. It is frequently easier to show that something said in a judgment is obiter and has no binding authority. Clearly, something said by a Judge about the law in his judgment, which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however persuasive it may be, and it will be described as an obiter dictum.

The term ratio decidendi, which in Latin means “the reason for deciding”. According to Glanville Williams in ‘Learning the Law’, this maxim “is slightly ambiguous. It may mean either (1) rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later Court concedes him to have had the power to lay down.” In G. W. Patons’ Jurisprudence, ratio decidendi has been conceptualised in a novel manner, in that these words are “almost always used in contradistinction to obiter dictum. An obiter dictum, of course, is always something said by a Judge. It is frequently easier to show that something said in a judgment is obiter and has no binding authority. Clearly something said by a Judge about the law in his judgment, which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however persuasive it may be, and it will be described as an obiter dictum.” ‘Precedents in English Law’ by Rupert Cross and JW Harris states -“First, it is necessary to determine all the facts of the case as seen by the Judge; secondly, it is necessary to discover which of those facts were treated as material by the Judge.” Black’s Law Dictionary, in somewhat similar vein to the foregoing, bisects this concept, firstly, as the principle or rule of law on which a Court’s decision is founded and secondly, the rule of law on which a latter Court thinks that a previous Court founded its decision; a general rule without which a case must have been decided otherwise.

In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on, the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it.

It is further trite that a decision is an authority for what it decides and not what can be logically deduced therefrom.

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Will – Execution – Mere non-registration of Will would not make it suspicious: Evidence Act Section 67 & 68.

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Dhameshwar vs. Gish Pati & Ors. AIR 2015 HP 77

The Appellant plaintiff had filed a suit against the Respondent-defendant, namely, Gish Pati and Proforma Respondents-defendants for declaration and for permanent prohibitory injunction as a consequential relief. According to the plaintiff, Smt. Drumati Devi had not executed the Will, dated 15.06.1985, Ex. DW2/A in favour of defendant, Sh. Gish Pati. Drumati Devi was 78 years of age in the year 1985 and the defendant No. 1 in collusion with the subordinate revenue staff and behind the back of the plaintiff and proforma defendants, got the mutation attested in his favour with regard to the share of late Smt. Drumati Devi. He came to know about this in the month of January, 1994. The Will is unregistered. Smt. Drumati Devi was an old, illiterate and simple lady. She had never expressed her will or desire to disentitle the plaintiff and other proforma defendants from her share in the suit property. The execution of the Will was result of undue influence, misrepresentation and coercion. The Will, dated 15.06.1985, was null and void. He also sought the decree of permanent prohibitory injunction against the defendant No. 1.

The suit was contested by the defendant No. 1. According to him, Smt. Drumati Devi was fully capable and sensible lady. She in lieu of the services rendered by him, executed a Will in his favour. Thereafter, on the basis of the Will, dated 15.06.1985, the mutation was also attested. The revenue entries were in accordance with the law.

What emerges after analysis of the statements of the witnesses, is that the Will is dated 15.06.1985. It was scribed by Dile Ram. The contents of the Will were read over and explained to Drumati Devi. She had put her thumb impression on the same. Thereafter, the marginal witnesses, Himan and Het Ram signed the same. The defendant No. 1 used to look after his mother. The plaintiff was out of village. The last rites were performed by defendant No. 1. Drumati was in her senses at the time of execution of the Will.

The counsel for the plaintiff contended that the marginal witnesses have used different ink. The Court held that merely the fact that the marginal witnesses have used different ink, will not make the Will suspicious.

The non registration of the Will will not make it suspicious. The Will has been executed strictly as per the provisions of the Indian Evidence Act and the Indian Succession Act.

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The petitioner filed a divorce petition u/s. 13 of the Hindu Marriage Act, 1955 before the Family Court. In that application, the petitioner alleged that Respondent No. 2 – wife caused mental cruelty to him by different means.

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Kalia Hati & Ors vs. State of Odisha & Ors. AIR 2015 Orissa 138 (FB)

The Court was concerned with the following question – What is the meaning of the expression “in particular, and without prejudice to the generality” appearing in section 14(ii) of the Industrial Infrastructure Development Corporation Act, 1980 (the Act)?

Section 14(i) of the Act deals with functions of the Corporation. It provides that the functions of the Corporation shall be generally to promote and assist in the rapid and orderly establishment, growth and development of industries, trade and commerce in the State. Section 14(ii) starts with “in particular, and without prejudice to the generality of Clause (i)”. Thereafter, it provides various particular purposes for which acquisition can be made.

In Shiv Kirpal Singh vs. Shri V. V. Giri, AIR 1970 SC 2097, the Supreme Court relying on the decision of the Privy Council in the case of King Emperor vs. Sibnath Banerji, AIR 1945 PC 156 held that when the expression “without prejudice to the generality of the provisions” is used, anything contained in the provisions following the said expression is not intended to cut down the generality of the meaning of the preceding provision.

Thus, the Court concluded that sub-section (i) of section 14 of the Act is independent and is couched in broad terms. The same cannot be in any manner whittled down by the language of sub-section (ii) of section 14 of the Act.

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Evidence – Tape Recorded conversation between spouses – Admissible in evidence – violates right to privacy – But not admissible if recorded without knowledge of spouse – If admitted it would amount to violation of “right to privacy”.

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Vishal Kaushik vs. Family Court & Anr. AIR 2015 Raj 146

The petitioner filed a divorce petition u/s. 13 of the Hindu Marriage Act, 1955 before the Family Court. In that application, the petitioner alleged that Respondent No. 2 – wife caused mental cruelty to him by different means.

The petitioner moved two applications on that very day. First application was filed for placing on record original cassette with a DVD. Second application was moved with the prayer that the original cassette and DVD be sent for FSL examination to determine their genuineness. The Family Court dismissed the application without seeking reply from the respondent.

The Hon’ble Court referred to section 122 of the Indian Evidence Act, 1872 and observed that:

The exception to privileged communication between husband and wife carved out in section 122 of Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence, as recording of such conversation had breached her `right to privacy’.

Husband cannot be, in the name of producing evidence, allowed to wash dirty linen openly in the court proceedings so as to malign the wife by producing clandestine recording of their conversation.

Thus, recorded conversation between the husband and the wife, even if true, cannot be admissible in evidence and the wife cannot be forced to undergo voice test and expert cannot be asked to compare CDs, which conversation had been denied by her.

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Admission / Concession – Advocate – Senior Counsel – cannot settle and compromise claim without specific authorisation from his client. Advocates Act, 1961, Section 35:

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Himalayan Co-op. Group Housing Society vs. Balwan Singh & Ors. AIR 2015 SC 2867

One
of the most basic principles of the lawyer client relationships is that
lawyers owe fiduciary duties to their clients. As part of those duties,
lawyers assume all the traditional duties that agents owe their
principals and, thus, have to respect the clients’ autonomy to make a
decisions at a minimum, as to the objectives of the representation.
Thus, according to generally accepted notions of professional
responsibility, lawyers should follow the client’s instructions rather
than substitute their judgment for that of the client. The law is now
well settled that a lawyer must be specifically authorised to settle and
compromise a claim, that merely on the basis of his employment he has
no implied or ostensible authority to bind his client to a
compromise/settlement. A lawyer by virtue of retention, has the
authority to choose the means for achieving the client’s legal goal,
while the client has the right to decide on what the goal will be.
Despite the specific legal stream of practice, seniority at the bar or
designation of an advocate as a senior advocate, the ethical duty and
the professional standards insofar as making concessions before the
court remain the same.

Generally, admissions of a fact made by a
counsel is binding upon their principals as long as they are
unequivocal; where, however, doubt exists as to a purported admission,
the court should be wary to accept such admissions until and unless the
counsel or the advocate is authorised by his principal to make such
admissions. Furthermore, a client is not bound by a statement or
admission which he or his lawyer was not authorised to make. Lawyer
generally has no implied or apparent authority to make an admission or
statement which would directly surrender or conclude the substantial
legal rights of the client unless such an admission or statement is
clearly a proper step in accomplishing the purpose for which the lawyer
was employed. Neither the client nor the court is bound by the lawyer’s
statements or admissions as to matters of law or legal conclusions.
Thus, according to generally accepted notions of professional
responsibility, lawyers should follow the client’s instructions rather
than substitute their judgement for that of the client.

Therefore,
the Bar Council of India (BCI) Rules make it necessary that despite the
specific legal stream of practice, seniority at the Bar or designation
of an advocate as a Senior Advocate, the ethical duty and the
professional standards insofar as making concessions before the Court
remain the same. It is expected of the lawyers to obtain necessary
instructions from the clients or the authorised agent before making any
concession/statement before the Court for and on behalf of the client.

While
the BCI Rules and the Act, does not draw any exception to the necessity
of an advocate obtaining instructions before making any concession on
behalf of the client before the Court, this Court in Periyar and
Pareekanni Rubber Ltd. vs. State of Kerala (1991) 4 SCC 195 has noticed
the sui generis status and the position of responsibility enjoyed by the
Advocate General in regards to the statements made by him before the
Courts. The said observation is as under:

“19…Any concession
made by the government pleader in the trial court cannot bind the
government as it is obviously, always, unsafe to rely on the wrong or
erroneous or wanton concession made by the counsel appearing for the
State unless it is in writing on instructions from the responsible
officer. Otherwise it would place undue and needless heavy burden on the
public exchequer. But the same yardstick cannot be applied when the
Advocate General has made a statement across the bar since the Advocate
General makes the statement with all responsibility.”

The
Hon’ble Court conclude by noticing a famous statement of Lord Brougham:
“an advocate, in the discharge of his duty knows but one person in the
world and that person is his client”

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Will – Suspicious Circumstances – Minor mistake / error in Final Will – Nothing to show that signature on will was forged – Will would be valid: Hand writing Expert opinion is fallible : Succession Act, 1925 section 63

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Hoshang Pesi Hodiwala vs. Bonny Behramshah Bhathena & Ors; AIR 2015 (NOC) 473 (Bom.)

The plaintiff was the grandson of the deceased, one B.M. Bhathena who executed a will dated 27th November, 1985 and who expired on 25th May, 1989. The deceased left behind one son and two daughters as his only heirs. They would be entitled to an equal 1/3rd share in the estate of the deceased on intestacy. The plaintiff had sought to probate the will. The plaintiff was the son of one of the daughters. The son of the deceased challenged the will of the deceased sought to be probated by the plaintiff. He was survived by the defendants.

The defendant had contended that the signatures of the deceased on pages 1 and 2 were forged. He had shown some inaccuracies in the will. He claimed that the will was not genuine and was forged.

The will of the deceased was typewritten. It ran into three pages. It was prepared in the lawyers office. It was signed by one lawyer and the managing clerk of the lawyer who prepared it. It was deposited with the sub registrar of assurances. The plaintiff evidence shows that the will had been duly executed. The attesting witness has deposed about the specific attestation of the will in the presence of the deceased.

The defendants had shown several suspicious circumstances and certain errors in the typewriting of the will. The name of the deceased was not correctly shown on page one of the will as also in the execution clause. There was an error in the name of the father of the deceased which forms a part of full name of the deceased. In line two the full name of the deceased only shows two blanks in his father’s name. The remainder of the name was correctly shown.

The Hon’ble Court observed that the name of the deceased B.M. Bathena in execution clause shows only M. Bathena. These mistakes may creep into any document. A party reading the will may or may not notice such error. The will is not on a computer printout, it is typewritten. The draft was made earlier by the steno of the advocate. The final will was typed by attesting witness who was his managing clerk. There can be a mistake in the final draft even if there was no mistake in the first draft. If the deceased had read the first draft and approved it, he may not meticulously go through the final draft before its execution. He may execute the will upon cursorily going through the will which he had seen earlier. Hence the errors of such kind which are shown are neither germane nor can raise any suspicion.

It was seen that the will was most natural. The deceased has bequeathed a single immoveable property. He had three children. He has bequeathed it to all in equal shares. Even on intestacy they would be entitled to the same share of course, as on the date of the execution of the will the defendant would have been entitled to 50% share in the estate of the deceased and his two sisters would have been together entitled to 50% share of his estate. That was prior to the amendment to Chapter III of the Indian Succession Act, (ISA) 1991. Be that as it may, upon intestacy half the property would devolve upon the son of the deceased, his residence with family therein notwithstanding. Consequently making of the will for giving equal shares does not matter. It would show the impartial intention of the deceased.

The Court had considered each of the circumstances contended to be suspicious. The conscience of the Court has to be satisfied that the will sought to be propounded is the will of the deceased. This would depend upon the facts of each case. Various facts shown by the defendants to create suspicions are mere stray contentions none of which is such as to raise suspicion of the Court. The deposit of a will in the office of the sub registrar after its preparation upon a draft by an advocate and its execution before another advocate in the same office and another witness bequeathing the estate of the testator in equal shares to his heirs would show the due execution of the will. Consequently it is seen that the will of the deceased B.M. Bhathena dated 27th November, 1985 has been duly and validly executed.

The defendant had produced, before the handwriting expert photocopies of two money order receipts of 1982, 3 years prior to the execution of the will showing the signatures of the deceased. He has also produced one cheque signed by the deceased on 21st July, 1997, 14 years prior to the execution of the will. He had also produced a driving license of the deceased dated 28th February, 1956, about 30 years prior to the execution of the will showing his signature. The signatures at such distance in time are likely to be slightly different.

The handwriting expert’s evidence would be required to be considered. (See Ajay Kumar Parmar vs. State of Rajasthan, AIR 2013 SC 633) However, it was held that the opinion of the handwriting expert is as fallible/ liable to error as that of any other witness and hence the Court can compare the signatures as required u/s. 73 of the Indian Evidence Act. Consequently in a case such as this the Court would see the opinion of the expert and apply its own observation by comparing the signatures or handwritings for providing a decisive weight or influence to its decision. There was absolutely nothing to show that any of the signatures is forged.

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Stamp Duty – Several instruments in one transaction – Duty Chargeable on principal instruments so determined shall be highest duty chargeable in respect of any of said instruments: Bombay Stamp Act, 1958 section 4

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Prasun Developers vs. State of Maharashtra & Ors; AIR 2015 (NOC) 541 (Bom.)

Section 4 of the Bombay Stamp Act, 1958 inter alia, provides that where, in case of any specific instrument, i.e. development agreement, sale, mortgage or settlement, if several instruments are employed for completing the transaction, then the principal instrument only shall be chargeable with duty prescribed in Schedule – I and each of the other instruments shall be chargeable with duty of Rs.100/- instead of the duty, if any, prescribed for it in that schedule.

Sub section (2) of section 4 of the said Act enables the parties to determine for themselves which of the instruments so employed shall for the purposes of sub section (1), be deemed to be the principal instrument. Sub section (3) of section 4 of the said Act provides that where parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument.

The proviso to section 4, which governs the entire section provides that the duty chargeable on principal instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments so employed. Thus, in order that the provisions of section 4 of the said Act are attracted, in the first place it will have to be established that several instruments were employed for completing one and the same transaction. In the context of present case therefore, it was for the petitioner to establish that the development agreement, power of attorney and the sale deed were nothing but several instruments employed for completing the transaction of the sale of the said property.

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Right to Representation – Duty of lawyer to defend every person – Professional ethics require that lawyer must not refuse a brief: Constitution of India

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A.S. Mohammed Rafi vs. State of Tamil Nadu; 2015 (319) ELT 10 (SC)

The Hon’ble Supreme Court while disposing a matter, commented upon a matter of great legal and constitutional importance.

The Hon’ble Court observed that the Bar Association of Coimbatore had passed a resolution that no member of the Coimbatore Bar could defend the accused policemen in the criminal case against them in this case. Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they could not defend a particular person or persons in a particular criminal case. Sometimes there were clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passed a resolution that they would not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

The Hon’ble Court opined that such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

The Hon’ble Court gave some historical examples in this connection. When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today :

“From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

The Hon’ble Court observed that Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked the responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi (November 1945 – May 1946).

However, disturbing news was coming now from several parts of the country where bar associations were refusing to defend certain accused persons.

The Hon’ble Court observed that professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution was, in fact, a disgrace to the legal community. The Court held that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend, no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

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Precedent – Conflicting decisions of Supreme Court – Later judgement in point of time will be followed

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The South Indian Sugar Mills, Bangalore & Ors vs. Govt. of Karnataka & Ors.; AIR 2015 (NOC) 559 (Kar.)

The Hon’ble Court observed that if this Court was confronted with two conflicting decisions of the Hon’ble Supreme Court by its Benches consisting of equal number of Judges, this Court would follow the judgment, which is later in point of time.

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Appellate Tribunal – Natural Justice – Relying on post hearing decision, not permissible – Central Excise Act, 1944 Section 35C.

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Garden Silk Mills Ltd. vs. UOI [2015 (323) ELT 717 (Guj.)(HC)]

The Commissioner, Central Excise, Customs and Service Tax, Surat-I, by his Order dated 28.9.2012, disallowed certain Cenvat Credits claimed by the petitioner company.
The said decision was challenged by the petitioner by way of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal, at Ahmedabad. The
matter was heard on 26.08.2014, however, the same was decided by order dated 27.11.2014. By the said order, the Tribunal remanded the matter on the basis of its own
decision dated 27.10. 2014 with regard to other group of appeals.

The petitioners, submitted that, though, the matter was heard on 26.8.2014, the decision has been rendered after about three months. The petitioner was not aware about
the order dated 27.10.2014 passed by the Tribunal itself which has been relied at the time of remanding the matter. He could submit that the case of the petitioner is different than the case decided by the Tribunal on 27/10/2014. The petitioner had no opportunity to make any submission with regard to the decision relied on by the Tribunal and, therefore, it is a breach of principle of natural justice.

The Hon’ble Court observed that it is an undisputed fact that the appeal preferred by the petitioner was finally heard on 26.8.2014 and the same is decided on 27.11.2014. If the impugned judgment and order is perused, it emerges that the Tribunal has relied upon its own decision dated 27.10.2014. It is equally true that the petitioner had no opportunity to plead their case before the Tribunal whether his case was covered as per the Tribunal’s decision dated 27.7.2014 or not. Therefore, the Appellate Tribunal ought to have given an opportunity of hearing to the petitioner before deciding the matter when the Tribunal had relied on its subsequent decision. Hence, the Court directed the Tribunal to decide the appeal after affording opportunity of hearing to the petitioner.

Limitation – Settlement of Accounts on dissolution of partnership firm – After 3 years right to sue would become time barred: Limitation Act Article 5:

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Smt. Shanti Bai Agrawal & Ors vs. Smt. Uma Bai Agarwal & Ors AIR 2015 Chhattisgarh 80

The undisputed facts were that a house was recorded in name of M/s. Gajadhar Prasad Kashi Prasad, a partnership firm. The firm had four partners including the plaintiff. The said property was in name of the firm M/s. Gajadhar Prasad Kashi Prasad and the plaintiff was residing in the said property from the year 1943. The partnership firm was dissolved on 02.11.1956. After dissolution of the firm, the plaintiff, who was a partner continued to reside in the house and was in possession thereof . The house also had also a shop in a portion thereof. It was case of the plaintiff that he was/in exclusive possession of the suit property for last 12 years after the dissolution, as the suit was filed in the month of September, 1994. The plaintiff/appellant pleaded that by ouster of the title of the defendants after dissolution, the plaintiff was in possession and therefore had acquired the right and title over the suit property by way of adverse possession. It was therefore for such reason, the title of the plaintiff was denied as the plaintiff had acquired the title over the suit land by way of adverse possession. Consequently, the suit for declaration and permanent injunction was filed.

The substantial question of law was thus framed as under: “Whether, the immovable property brought into partnership by partners, on dissolution, remained to continue to be immovable property in the hands of the partners ?”

The Hon’ble Court observed that on reading of section 46 it was clear that on dissolution of a firm, first the property of the firm was to be applied for payment of debts and liabilities of the firm and the surplus to be distributed among the partners according to their rights. Section 47 provides that the authority of the partners will continue only so far “as it may be necessary to wind up” the affair of the firm and to complete transactions begun but unfinished at the time of the dissolution, “but not otherwise”.

The Supreme Court in (AIR 1996 1300) Addanki Narayanappa & Another vs. Bhaskara Krishnappa & Others, had an occasion to interpret the share of the partner and the nature thereof. It is stated that the share of a partner is nothing more than his proportion of the partnership assets after they have been turned into money and applied in liquidation of the partnership, whether its property consists of land or not. Further, on dissolution the debts and liabilities should first be met out of the firm property and thereafter assets should be applied in rateable payment to each partner of what is due to him firstly on account of advances as distinguished from capital and, secondly on amount of capital, the residue, if any, being divided rateably among all the partners. It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm.

The Court further observed that it is well settled that the firm is not a legal entity, it has no legal existence, it is merely a compendious name and hence the partnership property would vest in all the partners of the firm. Accordingly, each and every partner of the firm would have an interest in the property or asset of the firm but during its subsistence no partner can deal with any portion of the property as belonging to him, nor can he assign his interest in any specific item thereof to anyone.

Therefore, according to section 47 of the Indian Partnership Act, 1932, after the dissolution of a firm, the authority of each partner to bind the firm, and the other mutual rights and obligations of the partners continue notwithstanding the dissolution, “so far as may be necessary to wind up the affair of the firm” and further to complete transactions begun but unfinished at the time of the dissolution, “but not otherwise”. In this case the dissolution is not in dispute, therefore, the partners had only inter se right between them in terms of section 47 and 48(b)(iv) of the Indian Partnership Act to claim for the right as per the provisions of the said section.

Therefore, in view of the aforesaid discussion, it is held that after dissolution of the property, the immovable property i.e. the subject suit land which was of a partnership firm became “a movable assets” in the hand of the partners inter se of M/s. Gajadhar Prasad Kashi Prasad. The partners have their inter se right in terms of section 48 of the Indian Partnership Act which could have been enforced by filing a suit to claim a share of dissolved partnership firm. Further, as per Article 5 of the Indian Limitation Act, the suit could have been filed by either of the partners within three years of the dissolution.

Admittedly the dissolution happened on 02.11.1956, therefore, by application of (Article 106 of the Limitation Act, 1908) Article 5 of the Limitation Act, 1963, the defendants having not claimed any right for settlement of account and share in the partnership, it would be barred as the period of three years has lapsed. Taking into consideration the totality of the facts, the immovable property of firm M/s. Gajadhar Prasad Kashi Prasad, was a property of the firm and the firm having been dissolved on 02.11.1956 as per the Partnership Act, it fell into shares of the partners as a movable assets for which the partners could have sued for their part of share after the discharge of dues and other settlement within a period of three years from the date of dissolution. Having not done so, the right to sue for account and the share in the partnership property became barred by limitation

The Court dismissed the suit on ground that a suit is not maintainable on the basis of adverse possession, it can be used as a shield/defence.

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Coparcenary property -Right given to daughters to claim partition – Constitutionally valid-Hindu Succession Act 1956 section 6:

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Dr. G. Krishnamurthy vs. The UOI & Anr. AIR 2015 Madras 114

On 20th day of December, 2004, the Hindu Succession Amendment Bill 2004 was introduced, inter alia, seeking to amend the erstwhile section 6 and to omit sections 23 and 24 of the Hindu Succession Act, 1956. Ultimately, the Amendment Act, 2005 was passed as Act 39 of 2005 on 09.09.2005. This Act was introduced pursuant to the recommendation made by the Law Commission to alleviate the gender bias caused by the then existing Act.

By the Amendment Act, not only section 6 was amended apart from omission of sections 23 and 24, but consequent thereon, an insertion was made by way of Amendment to Schedule in Clause-I.

The petitioner submitted that by the amendment made to section 6, the entire concept governing the Hindu Law was sought to be overturned in one stroke. The principle governing “Sapinda” and ”coparcener” as existed in the Shastric and Customary Law has been obliterated . Upon deletion of section 23, it is likely that a Hindu woman after remarriage would continue in the dwelling house wholly occupied by the members of a family of a Hindu intestate. There is also a possibility of a non Hindu residing therein in view of the possible remarriage of the widow. The Petitioner filed a Petition seeking to declare the aforesaid Amendment Act, 2005 as Ultra Vires.

The Court observed that the enactment has been made on the recommendation made by the Law Commission to remove the discrimination meted out to women. Therefore, in order to uphold the protection given under Articles 14, 15 (2) and (3) and 16 of the Constitution of India, the amendment was brought forth. It is trite law that the provisions of the Act would prevail over the old Hindu Law. Though the conferment of the rights to a Hindu woman is belated, it is also gradual through different enactments.

By the Hindu Law of Inheritance Act 1929, inheritance right to three family heirs-son’s daughter, daughter’s daughter and sister was conferred on them

The next legislation “A Hindu Woman’s Right to Property Act , 1937” provided for the right of the Hindu widow to succeed along with the son of the deceased in equal share to the property of a deceased husband. Though the Hindu Succession Act, 1956, (hereinafter referred to as “the Act”) came into being, u/s. 6 the rights of women were restricted. Thus, the new amendment Act was introduced to bring forth an element of equality between a Hindu man and woman. The enactment has been made to implement the fundamental rights enshrined in the Constitution of India.

Coming to section 23 of the Act, it has been omitted to remove the disability to female heirs. The said decision was made keeping the larger public purpose in mind. By virtue of the amendment section 6, the difference between the son and daughter has been removed, and consequently section 23 of the Act has been rightly taken away from the statute book.

Section 24 of the Act also created a statutory discrimination against widows remarrying qua inheritance. This was rightly removed as a woman cannot be deprived of her right to get a property on her remarriage. In other words, by such a remarriage, the entitlement of the widow cannot be extinguished. Accordingly, section 24 was rightly removed from the text.

The petitioner had sought to challenge sections 23 and 24 of the Act on mere presumption and conjunctures. The petitioner had also submitted that a discrimination is sought to be made with respect to Class-II. He had also submitted that Class-I by the inclusion of certain categories of heirs has to be declared as unlawful. The court held that there was no merit in the said submission. In fact, the petitioner had admitted that the laudable object in treating a Hindu man and woman on par had to be appreciated. If that is so, there cannot be any challenge to Class-I of the schedule. Class-I of the Schedule is only consequent upon the amendment made to section 6. It only qualifies the heirs, who are entitled to a property as in Class-I in consonance with section 6. Class-I has never been amended and there is no challenge to it. Therefore, the challenge to the said inclusion made to Class-I of schedule is also rejected.

The Court further observed that a challenge to the constitutionality of an enactment is to be made on the touchstone of the Constitution. It cannot be done based upon mere presumptions. Equally, a mere hardship cannot be a ground to declare a valid legislation to be ultra vires. The court therefore declined to declare the Amendment of 2005 as unconstitutional.

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Consumer – Builder –Agreements are prepared in a one-sided-Delay in handing over of possession – Liable to pay interest and compensation: Consumer Protection Act, 1986.

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Shri Satish Kumar Pandy & Anr. vs. M/s. Unitech Ltd.; Consumer Case No. 427 of 2014 alongwith others (NCDRC, New Delhi) dated 8/6/2015

The complainants group of matters, booked apartments with the opposite party in a complex known as ‘vistas’ which was being developed in sector 70 of Gurgaon, and they entered into individual “Buyers Agreement” with the opposite party. The possession of the apartments was agreed to be delivered to them within 36 months from the date of their respective agreements. The grievance of the complainants was that neither the possession of the apartments has been given to them nor was the construction complete though the last date stipulated in the Buyer’s Agreement for delivery of the possession to them had already expired more than 2 years ago. The complainants therefore, approached the Commission seeking delivery of the possession of the flats agreed to be sold to them or in the alternative payment of current market value of such houses. They were also seeking payment of compensation on account of loss of rental income to them with effect from the stipulated date of possession and compound interest @18% p.a. with effect from the stipulated date of possession. The complainants were also seeking compensation on account of their mental torture, agony etc.

The Commission observed that the learned counsel for the complainants stated, on instructions, that the complainants were not interested in taking refund of the money paid by them to the opposite party and they wanted to have possession of their respective flats even if the said possession was to be delivered in terms of the revised date of possession indicated in the abovereferred letter of opposite party. Thus the only question which survived for consideration in these complaints was as to what interest/compensation was to be paid to the complainants by the opposite party, till the date the possession being delivered to them.

The Hon’ble Commission observed that for the exceptional circumstances mentioned in Clause 4 of the agreement the opposite party was required to hand over the possession of the apartment to the flat buyers within 36 months from the date of signing the agreement with them. The exceptional circumstances which could justify delay in hand over the possession of the apartments were:-

(a) Lock-out
(b) Strike
(c) Slow-down
(d) Civil Commotion
(e) War, enemy action, terrorist action, earthquake or act of God and
(f) any reason or circumstance beyond the control of the developer.

The delay in handing over the possession of the apartments would also be justified if there was to be a new legislation, regulation or order suspending, stopping or delaying the construction of the complex and the apartments.

The Commission observed that neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There was no allegation of any lock-out or strike by the labour at the site of the project. There was no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement.

The word ‘slow down’ having been used along with the words lock-out and strike, it has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.

Therefore, the plea of the opposite party that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity was rejected.

Since the delay in construction of the apartments could not be justified by the opposite party, it was required to pay compensation to the flat buyers. The contention of the learned counsel for the opposite party was that such compensation had to be calculated @ Rs. 5/- per sq. ft. of the super built area of the apartment for the period of delay in offering the possession beyond the period indicated in clause 4 of the Buyers Agreement, the complainants having agreed to the aforesaid term while agreeing to purchase the apartments. This was also the contention of the learned counsel for the opposite party that the terms of the contract are binding on the parties and cannot be altered by a consumer forum.

The Hon’ble Commission observed that a person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than 0.25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer’s Agreement in the format provided by the builder. No sensible person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.

Thus the commission held that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.

The complainants have specifically alleged that some of the clauses in the Buyer’s Agreement were one sided and they were made to sign already prepared documents. It is also alleged that some of the clauses contained in the Buyer’s Agreement are totally unreasonable and in favour of the opposite party only. It is further alleged that the clause providing for compensation at the nominal rate at Rs.5/- per sq. ft. of the super built up area is unjust and exploits the complainants. It is also alleged that the opposite party has been utilising the money of the complainants for its own purposes. Therefore, the commission held that the opposite party should pay adequate compensation to the complainants which would not only take care of the additional financial burden on them on account of the delay in construction of the flat but would also give some compensation to them for the harassment and mental agony which they have suffered all along and were likely to suffer atleast for some more time on account of the opposite party having not delivered the possession of the flat to them by the date stipulated in the Buyer’s Agreement.

The cost of
the borrowing for individual home buyers was about 10% per annum though it had
gone upto 11.5% in last few years. Accordinfg to the commission, if the
opposite party, paid simple interest @ 12% per annum to the complainants, that
would not only take care of the additional financial burden on them but also
give some monetary compensation to them for their sufferings on account of the
delay in handing over possession of the flat purchased by them.

It transpired
during the course of arguments that the service tax has increased with effect
from 01.06.2015. Had the opposite party delivered possession in time, the
complainants would have paid service tax at the pre-revised rate. Therefore,
held that the increase in service tax with effect from 01.6.2015 should be
borne by the opposite party.

The
commission also directed a rate higher than 12% per annum should be paid by the
opposite party, if the revised date of delivery of possession is not honoured
by the opposite party.

Hindu Succession – Hindu female dying intestate – Her step son falls in category of heirs of husband – Hindu Succession Act 1956. Section 15(10)(b).

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S. A. Ramalingam vs. Elumalai AIR 2015 Madras 235

The suit was filed by the respondent/plaintiff for declaration of his right, title and interest in respect of and recovery of the suit items, which admittedly belonged to one Sampoornammal, who was none other than the stepmother of the plaintiff.

The facts that Sampoornammal, who was the senior wife of Ramasamy Padaiyachi, was the original owner of the property and during the subsistence of the first marriage, Ramasamy Padaiyachi married one Rajammal as his second wife. Rajammal gave birth to the plaintiff through Ramasamy Padaiyachi. Shri Ramasamy Padaiyachi predeceased the senior and junior wives and the senior and junior wives also died thereafter and after their death, the defendant (son of one of the paternal uncles of Sampoornammal – senior wife) has been in possession and enjoyment of the suit properties.

The dispute in respect of the suit items arose between the plaintiff/step-son of  Sampoornammal and the defendant,.

The Hon’ble Court observed that the relationship between the parties was not disputed. The plaintiff being the step son of the owner falls in the category of the heir of the husband as referred to in clause (b) of section 15(1) and will come as legal heir of female dying intestate.

The Hon’ble Apex Court in the decision reported in (1987) 2 SCC 547 (Lachman Singh vs. Kirpa Singh and others) has categorically laid down that the in the case of a female Hindu dying intestate, a step son, that is, the son of her husband by his another wife falls in the category of the heirs of the husband referred to in clause (b) of section 15(1) and will come in as her heir. That being the legal position, both the courts below by relying on the law so laid down by the Apex court, rightly held that the plaintiff being step son of Sampoornammal, under clause 15(1) (b) of the Hindu Succession Act, was entitled to succeed to her property, in the absence of other legal heirs and the denial of his right, title and interest by the defendant insofar as the suit items are concerned, is hence legally not sustainable. When the plaintiff is held to be entitled to the suit items, the possession of the suit items by the defendant without any right would amount to trespass and encroachment. Though the defendant sought to set up title on the strength of release deed executed by the plaintiff’s mother for her herself and on behalf of the plaintiff, who was the erstwhile minor son, the same for want of any right to do so by Rajammal and for want of registration was held to be not valid a document. When release deed is held to be invalid, the question of taking steps to set aside the same for the purpose of establishing the right of the plaintiff did not at all arise.

Hindu Law – Suit for partition – Concept of dual ownership – Land and building or structure standing thereon

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Dattaram Waman Kambli vs. Shantaram Bapu Kambli & Ors.; AIR 2015 (NOC) 474 Bom.

The plaintiff and his two brothers namely, the defendant nos. 1 and 2 had equal share in the land. The dispute was about the entitlement of the plaintiff to any share in the house, which was constructed on the land in question. The plaintiff did not dispute that he had not contributed anything towards the construction of the house and the defendant nos. 1 and 2 were permitted to construct the house with their own funds. The house was constructed in the year 1977 in which the defendant nos. 1 and 2 were residing.

The learned counsel for the appellants submitted that the concept of dual ownership is recognised in India and it has been accepted by the Courts in India despite a contrary concept prevailing under the British law.

It was submitted that though, the share of the plaintiff in the land is not disputed, in view of the aforesaid position of law accepted by the Courts in India, the plaintiff is not entitled to get any share in the structure of the house constructed thereon. As against this, the learned counsel appearing for the respondent (Original Plaintiff) submits that the Hindu law does not recognise such a concept of dual ownership.

The Hon’ble Court observed that in Ramkrishna Girishchandra Dode & Others vs. Anand Govind Kelkar & Others delivered by this Court reported in (1999) 1 Bombay Case Reporter 63, it has been held as under:

“The concept of dual ownership one of the land and the other of the structure on the land has been recognised by several decisions of this Court. The consistent view taken by this Court is that where the landlord get a decree for eviction of a plot of land against a tenant the licensee or a sub-tenant inducted by the tenant on the structure put by him has no right against the landlord. If therefore the landlord is entitled to get vacant possession of the land, he is entitled to evict the occupant in the said structure erected by the tenant, in as much as the occupant of the structure has no legal right against the landlord in so far as the land is concerned. The land must be put in possession of the landlord, free from any encumbrance whatsoever.”

In view of the aforesaid position of law, it was apparent that the concept of the dual ownership, one of the land and the other in the building or structure standing thereon had been recognised and accepted by the Courts in India. The applicability of the principle would not be different even if it is a case between the real brothers and the law as has been laid down by the Courts in India would apply to the dispute between the real brothers also. Merely because, the plaintiff had share in the land beneath the building, it does not automatically follow that he would have share in the building constructed also. The plaintiff did not dispute that he has not contributed anything for construction of the house on the land in which he has a share. It is also not in dispute that he had permitted his brothers to construct building/house with their own funds. No objection was raised for such construction. Therefore, it had to be held that though the plaintiff has share in the land, he did not have any share in the structure or building erected thereon.

The plaintiff is not entitled to a partition and possession of the suit house.

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Hindu Law – Partition – Doctrine of throwing Property in common hotchpot – Assessment under the Wealth tax Act would be evidence : Hindu Succession Act section 23

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Vineeta Sharma vs. Rakesh Sharma & Ors. AIR 2015 (NOC) 895 (Del)

The
plaintiff had filed a suit for partition against her brothers and
mother in respect of constructed premises. The undisputed facts were
that the suit premises were purchased and constructed by the plaintiff’s
father, wherein he along with his family stayed for some time and also
let out a portion thereof to the tenants. The plaintiff’s case was that
since her father and brother died intestate, she was entitled to
one-fourth share in the suit premises. She stated that whenever she
visited her paternal home, she stayed in the suit premises. The
plaintiff averred that the suit premises were never treated as HUF
property and no Will was ever executed by their father.

The
defendants No. 1 and 2 (sons) contested the suit. Their case was that
the plaintiff being the married daughter, had only restricted rights in
the suit premises and could not seek its partition. They averred that
the plaintiff was also not entitled to any share, as the suit premises
was a HUF property, and was so assessed by the Income Tax Department as
also the Wealth Tax Authorities.

The plaintiff deposed that her
father acquired the suit premises from his own earnings, savings and
loans and had constructed the same in March, 1966, when all the
defendants were studying and they could not have contributed to the
construction expenses.

On the other hand, the defendants stated
that their father had abandoned his individual rights in the suit
premises by making a declaration on affidavit dated 23.05.1966,
submitted by him with the Income Tax Department, and which was accepted
as HUF property vide Assessment Order dated 31.03.1976 for the
Assessment Year 1972- 73. They stated that from the Assessment Year
1972-73 to 1988-90 and until the demise of their father, the premises
had been assessed to Income-tax as well as Wealth-tax, as HUF under the
provisions of Income-tax Act as well as Wealth-tax Act.

The
Hon’ble Court observed that as per the plaintiff, the suit premises was
self-acquired property of their father, whereas as per defendants No. 1
and 2, though, it was the self-acquired property of their father, he had
thrown it in the hotchpot of HUF.

The law relating to blending
of separate property with joint family property is well settled.
Property, separate or self-acquired of a member of a joint Hindu family
may be impressed with the character of joint family property, if it was
voluntarily thrown by the owner into the common stock with the intention
of abandoning his separate claim therein, but to establish such
abandonment a clear intention to waive separate rights must be
established.

The separate property of a Hindu ceases to be
separate property and acquires the characteristics of a joint family or
ancestral property not by any physical mixing with his joint family or
his ancestral property but by his own volition and intention, by his
waiving and surrendering his separate rights in it as a separate
property. The act by which the coparcener throws his separate property
in the common stock is a unilateral act. There is no question of either
the family rejecting or accepting it. By his individual volition, he
renounces his individual right in that property and treats it as a
property of the family. No sooner than he declares his intention to
treat his self-acquired property as that of the joint family property,
the property assumes the character of joint family property. The
doctrine of throwing into the common stock is a doctrine peculiar to the
Mitakshara school of Hindu law.

The Hon’ble Court observed that
from the Assessment Order dated 31.03.1972 of the Assessment Year 1972-
73, it is seen that the plaintiff’s father had declared some income
from the suit premises in the status of HUF. It is also seen therefrom
that the HUF came into existence under the assessee’s declaration made
on 23.05.1966 on an affidavit. The Income Tax record of the subsequent
year upto the Assessment Year 1999-2000 would evidence that the
plaintiff’s father had been filing Income Tax Returns and been assessed
to Income Tax as Karta of HUF. The incomes received from the suit
premises was being declared by the plaintiff’s father as of HUF and was
assessed as such during all these years. The Assessment Order under the
Wealth Tax Act of the years 1977-78 onward would also evidence the suit
premises having been assessed as HUF for the purpose of Wealth Tax. From
all this record, it was concluded that the plaintiff’s father, for all
purposes, had consciously abandoned his individual rights in the suit
premises to HUF with effect from 23.05.1966. The affidavit filed by the
plaintiff’s father with Income Tax Department declaring the suit
premises as HUF on 23.05.1966 was not the solitary step taken by him,
but, he continued to maintain the HUF status of the suit premises till
he died. In view of all this, even the payment of property tax by the
plaintiff’s father in his name and not that of HUF or even for that
matter, filing of eviction case against the tenant Bank of Baroda in his
own name than that of HUF would not make any difference. There is no
dispute that the suit premises was initially acquired by the plaintiff’s
father in his own name and it was in those circumstances that the suit
premises continued to be assessed to property tax in his individual name
rather than that of HUF. The payment of property tax by any means does
not create any right or title in the name of the assessee. Filing an
eviction case by the plaintiff’s father in his own name instead of the
HUF, can also be said to be only for the convenience. In any case, the
partition could only be filed by him in his name, being the Karta of
HUF. Thus it was held that the suit premises was of the HUF property of
the plaintiff’s father, with he being the Karta thereof till his death.

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Foreign Judgement – Enforceable before Court in India – Civil Procedure Code, section 13(b)

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Masterbaker Marketing Ltd vs. Noshir Moshin Chinwalla, AIR 2015 (NOC) 771 (Bom.)

A foreign Court which has jurisdiction over the subject matter and passes a decree, the same is conclusive u/s. 13 of the CPC. The plea of the defendant that judgement was obtained by playing fraud hence could not be conclusive could not be considered as it had not submitted to the jurisdiction of the competent Court in a foreign country. The defendant would not be allowed to raise up his hands after the plaintiff has gone through the process of trial and undertaken the execution by applying to the executing Court to retry the issue.

The plaintiff had filed his plaint. The defendant was given notice of the action. He was served a summon. He was called upon to answer the plaintiff’s claim. The trial Court was bound to hear the defendant and to dismiss the plaintiffs claim if it was fraudulent or perjurial. It was, therefore, not only the defendant’s right to get the action of the plaintiff dismissed if it was perjurial or fraudulent, but also its duty to bring perjurial act constituting fraud to the notice of the Court if it was known to the defendant at the time of the trial. If that was not done at the time of trial then and was sought to be done later after the judgment was passed, it would constitute a retrial issue. That retrial is forbidden by the salutary principle of resjudicata. If permitted, it would allow all defendants not to defend the claim and allow any decree to be passed which would then be challenged whilst being executed. That would be an abuse of the Court process.

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Appellate Tribunal – Difference of Opinion between Members of Bench on factual matters – Advice to Tribunal – Disagreement and dissent to be avoided by meaningful discussion and continuous dialogue.

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Commissioner of Customs (II) vs. Nitin Aminchand Shah 2015 (323) ELT 466 (Bom.)

In the initial order passed on 6-8-2013 by the CESTAT, there was difference of opinion between the Member (Judicial) and the Member (Technical). The Member (Judicial) was of the opinion that for the reasons indicated by him, the appeals of the assessee deserved to be allowed. Whereas the Member (Technical) passed a separate order upholding the Department’s stand, but yet remanded the case to the Commissioner for ascertaining the value of the impugned goods by constituting a Panel in accordance with the Departmental instructions.

On account of this difference of opinion, the matter was referred by the President, CESTAT to a Third Member. In the meanwhile, the importers filed rectification of mistake applications pointing out the alleged mistake in the initial order of the Tribunal dated 6-8-2013. As was expected, even when these applications for rectification were placed before the same Bench, the Members thereof differed. The applications were admitted by the Member (Judicial) whereas the Member (Technical) recorded a separate order. That separate order of the Member (Technical) did not conclude the applications for rectification of mistake. Thereafter, the rectification applications were finally decided on 8-12-2014 but recording a dissent and difference of opinion between the two Members.

Then, this difference of opinion was also marked and referred to the same Third Member who was to resolve the disagreement in the initial order dated 6-8-2013.

The Hon’ble Court observed that this was one more instance where the Members of the Bench have differed and recorded dissenting opinions. By consent of both sides, the appeals decided by the initial order dated 6-8-2013 were restored to the file of the CESTAT for being decided afresh in accordance with law. The Hon’ble Court further advised that the Tribunal should bear in mind the caution administered by the Court in case of the Starto Electro Equipments Pvt. Ltd. vs. UOI 2015 (318) ELT 55
(Bom) and all such decisions rendered prior thereto. Why should there be a difference of opinion on factual matters? By some meaningful discussion, continuous dialogue and by not demonstrating unnecessary haste, disagreements and dissents can be avoided.

Aadhar Card Scheme – Right to Privacy – Judicial Discipline – View expressed by smaller benches without explaining reasons for not following pronouncements of larger Benches – Matter referred to larger Bench – Constitution of India Article 141.

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Justice K. S. Puttaswamy & Anr. vs. UOI & Ors. AIR 2015 SC 3081

The collection by the Govt. of biometric data of residents under Aadhar Card Scheme challenged to be violative of the right to privacy.

The Court directed that the Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhar card. The production of an Aadhar card will not be a condition for obtaining any benefits otherwise due to a citizen. The Unique Identification Number or the Aadhar card will not be used by the Govt. for any purpose other than the PDS Scheme and in particular for the purpose of distribution of food grains, etc. and cooking fuel, such as kerosene. The Aadhar card may also be used for the purpose of the LPG Distribution Scheme. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhar card shall not be used for any other purpose, save as above or as may be directed by a Court for the purpose of criminal investigation.

The Hon’ble Court was of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M. P. Sharma (AIR 1954 SC 300) and Kharak Singh (AIR 1963 SC 1295) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. The Hon’ble Court was also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of the Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. The Hon’ble Court was of the opinion that there appeared to be certain amount of apparent unresolved contradiction in the law declared by the Court.

Will – Execution Proof – Both attesting witnesses not alive – Evidence Act should receive a wider purposive interpretation: Evidence Act Section 68, 69.

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C. G. Raveendran & Ors. vs. C. G. Gopi & Ors. AIR 2015 Kerala 250

The plaintiffs and defendants were the children of late Govindan and Bhanumathi. Govindan died on 28/8/1994 and Bhanumathi on 18/5/2004. The plaint schedule properties belonged to Govindan. He had constructed a building therein and was residing there with his family till his death.

According to the plaintiffs, after the death of Govindan, the right to the properties have devolved on the plaintiffs and the defendants equally and they were entitled to inherit. However, the plaintiffs came to know about a registered Will allegedly executed by Govindan.

It was contended that the Will was a fabricated one and Govindan had no occasion to execute such a Will. During the period of execution of the Will, Govindan was mentally ill and was undergoing treatment for partial paralysis. He had not executed the Will and was allegedly executed under suspicious circumstances. Hence the suit was filed seeking a declaration that the Will was null and void and for a consequential partition of the properties.

The Court below on an evaluation of the oral testimony on the side of the plaintiffs and the oral evidence on the side of the defendants held that Will was validly executed by Govindan.

The Hon’ble Court observed that the above evidence had to be evaluated to decide the genuineness of Will. It is pertinent to note that Will is registered. In the absence of any serious challenge regarding registration, it must be presumed that the Will was registered after complying with all the statutory formalities. Registration of a Will is a piece of evidence confirming its genuineness and can confer it a higher degree of sanctity. There seems to be a consensus in the judicial pronouncements that, though there is no requirement that Will should be registered, but if registered, it adds to its authenticity.

Section 68 of the Indian Evidence Act, provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. In the present case, the attesting witnesses are Parameswaran and Padmanabhan Nair. Parameswaran himself was the scribe. There is no legal bar in scribe himself being an attesting witness, provided he has actually seen the executant signing or affixing his mark or has received a personal acknowledgment from the executant and has consciously affixed his signature as an attesting witness, as a token of having witnessed the executant signing or affixing his mark. Evidence should prove that the scribe, apart from being so, had signed for the purpose of testifying to the signature of the executant and had the animo attestandi.

It is on record that both the attesting witnesses are no more alive. Hence, section 68 of the Indian Evidence Act cannot apply. The provision that governs the field can only be the section 69 of the Indian Evidence Act. It deals with a situation wherein no attesting witnesses can be found. Though the Statute prescribes that section 69 applies when the witness is not found, in the absence of any other provision dealing with cases wherein the presence of witnesses cannot be procured for various other reasons, like death of both attesting witness, out of jurisdiction, physical incapacity, insanity etc. Section 69 should apply and can be extended to such cases. Hence, the word “not found” occurring in section 69 of Evidence Act should receive a wider purposive interpretation than its literal meaning and should take in situation where the presence of the attesting witness cannot be procured. This view gets its support from Venkataramayya vs. Kamisetti Gattayya (AIR 1927 Madras 662) and Ponnuswami Goundan vs. Kalyanasundara Ayyar (AIR 1930 Madras 770).

It is settled that mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by section 63 of Indian Succession Act. Section 69 imposes a twin fold duty on the propounder. It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Hence, to rely on a Will propounded in a case covered by section 69 the propounder should prove i) that the attestation is in the handwriting of the attesting witness and ii) that the document was signed by the executant. Both the limbs will have to be cumulatively proved by the propounder. Evidently, the section demands proof of execution in addition to attestation and does not permit execution to be inferred from proof of attestation. However, section 69 presumes that once the handwriting of attesting witness is proved he has witnessed the execution of the document. The twin requirement of proving the signature and handwriting has to be in accordance with section 67 of the Indian Evidence Act.

Registration –Agreement to sell – Not required to be compulsorily registered: Registration Act, section 17(1A):

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Swarnendu Das Gupta vs. Smt. Sadhana Banerjee AIR 2015 Calcutta 46

The plaintiff filed a suit against the defendant and the plaintiff in such suit prayed that a decree be passed under Specific Relief Act directing the defendant to execute the sale deed in respect of the suit property in terms of the agreement for sale dated 26-04-2006 entered in between the plaintiff and the defendant. The plaintiff also prayed for a decree directing the defendant not to disturb the possession of the plaintiff from the suit property. The trial court, after hearing the parties and considering the evidence on record, dismissed the said suit and directed the defendant to refund the earnest money. The trial court dismissed the said suit mainly on the ground that the agreement for sale is not a registered instrument and therefore the plaintiff is debarred from getting any relief in the said suit. The plaintiff filed another Appeal. The learned District Judge affirmed the view of the learned Trial Court that since the said agreement for sale is not a registered instrument, the plaintiff is not entitled to get any relief by virtue of the agreement for sale dated 26-04- 2006. The learned First Appellate Court was of the view that since the said agreement for sale is not a registered document as per the provisions of section 17(1A) of the Registration Act, 1908, the plaintiff is not entitled to get any decree.

The Hon’ble High Court observed that a document which happens to be an agreement for sale does not by itself confer any right, title and/or interest in favour of the proposed transferee and it is only a document by which the parties entered into an agreement to create a further document which is called a deed of conveyance. There cannot be any dispute that such deed of conveyance is required to be compulsorily registered if the value of the immovable property is more than Rs. 100/- but since the agreement for sale does not create any such right, title and/or interest, there is no such provision in law which mandates that the said agreement for sale will also have to be registered excepting in cases where section 17(1A) of the Registration Act, 1908 applies. The provisions of the Registration Act, would also clearly indicate that an agreement for sale is not required to be compulsorily registered.

The Court further observed that, section 53A of the Transfer of Property Act stipulates that when a transferee has, in part performance of contract, taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of contract and the transferee has performed or is willing to perform his part of the contract then in that event the transferor is debarred from enforcing against the transferee any right in respect of such property.

The plaintiff accordingly, gets a decree of specific performance of contract against the defendant/respondent in respect of the suit property in terms of the agreement for sale dated 26-04-2006 and the defendant was directed to execute an appropriate sale deed in favour of the plaintiff/ appellant in respect of the suit property and in terms of the said agreement for sale dated 26-04-2006.

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Partnership – Rights of outgoing partner – Firm continued its business – Retired partner cannot claim share in subsequent profits made by firm: Partnership Act, 1932 section 37.

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Mrs. Halima Bai vs. Sparkle Ads – Firm, Chennai, AIR 2015 Madras 58.

The case of the plaintiff is that the first defendant is the partnership firm comprising of four partners i.e. the plaintiff and defendant nos 2 to 4 by virtue of partnership deed dated 03-04-1992. The partnership firm was engaged in advertising business and allied matters. Each of the partner has contributed a sum of Rs. 10,000/- towards share capital and the partnership was one at will. While so, the plaintiff expressed her willingness to retire from the partnership firm and sent letter on 17-01-1994. The said letter was acknowledged by the defendants 2 to 4 by letter dated 24-01-1994, confirming that the plaintiff was deemed to have retired from the partnership firm with effect from 18-01-1994. Though the plaintiff retired from the partnership firm, the existing partners reconstituted the deed of partnership and carried on their business. It was contended by the plaintiff that the partnership firm did not settle her accounts on retirement despite several demands and that she demanded to settle all her share in respect of transactions from 03-04-1992 to 18-01-1994, till the date of settlement of her dues. The plaintiff also had given break-up of the amounts that she is entitled to from the partnership firm

The suit was contested by the defendants who are the other partners on the ground that the plaintiff was acting detrimental to the interest of the partnership firm. It was further contended that the suit was not maintainable as the plaintiff only retired voluntarily from the partnership firm and the partnership firm was not dissolved as alleged by her.

The Hon’ble Court observed that u/s. 37 of the Partnership Act, the court can grant relief to outgoing partner who has not been made a final settlement and the partnership is carrying out of the business with the surviving partners and the court has jurisdiction to grant such relief based on the findings of the fact. In the instant case plaintiff partner has categorically stated that she voluntarily resigned from the firm. Therefore, she cannot be expected to claim profits of the partnership firm subsequent to her exit as there was no contribution from her side. Share of the partner would be his/her proportion of the partnership assets after they have been all realised and converted into money, all the partnership debts and liabilities have been paid and discharged. Liability to pay arises when the partnership firm is dissolved and the legal existence is taken away. After voluntary resignation of partner from firm even presuming that immovable assets purchased from the plaintiffs participation in the firms as a partner and admittedly the partnership firm was continuing the business even after the exit of the plaintiff, the retired partner can only demand her share, be it an asset or liability based on the value on the date of her exit and she cannot claim profits of the firm.

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Coparcenary Property – Right of daughters – Daughter born prior to 9-9-2005 has right to file suit for partition: Hindu Succession Act section 6-

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Babu Dagadau Awari vs. Baby W/o Namdeo Lagad & Ors AIR 2015 (NOC) 446 (Bom) (HC)

The suit was filed by respondent No. 1 – Smt. Baby for partition of Hindu joint family properties and for possession of her share from the properties. The suit was filed in respect of four agricultural lands and three house properties.

The applicant/defendant No. 1 is the father of plaintiff. Defendant Nos. 2 to 4 are also daughters of present applicant. It was contended by the plaintiff that the suit properties are the ancestral properties though they are in the hands of defendant No.1. It was contended that, in view of amendment made in Hindu Succession Act, the plaintiff needs to be treated as coparcener along with defendant No. 1 and other defendants and she has right to claim partition and possession of her share.

The Court relied on the following observations made by this Court in case of Vaishali Satish Ganorkar and Anr. vs. Satish Keshaorao Ganorkar & Ors (2012) (3) Mh. L.J. 669 “14. It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a co-parcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the Amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place.”

Thus, the Court held that plaintiff has right to file suit for relief of partition in respect of co-parcenary properties though she was born prior to 09-09-2005 and the trial Court had not committed any error in rejecting the application filed by the applicant. In the result, the application stands dismissed.

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Appeal – Abatement– Death of defendant during pendency of appeal – Failure to bring his legal representative on record – Appeal would abate against deceased defendant CPC, C.22 R. 4

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Naveen Shanker Lokure vs. Nascimento Milgares Pereira & Ors AIR 2015 (NOC) 156 (Bom) (HC)

The original plaintiffs namely Jose Francisco Pereira and his wife Ana Francisca Dias had filed the said suit for a declaration that they were exclusive owners in possession of the property allegedly purchased by the defendants no. 1 and 2 namely Shankar Krishnappa Lokure and Shivagundappa Krishnappa Lokure from the defendant no. 3, Aniquinha Maria Apolonia Dias.

By judgment and order dated 29/04/1999, the said suit was dismissed. Plaintiffs filed Regular Civil Appeal No. 70/1999 against the judgment and decree of the trial Judge.

The original defendant no. 3 had died during the pendency of the suit and her legal representatives, namely Mrs. Catherina Ana Dias, along with other legal representatives were brought on record, in the said suit. However, the legal representative Mrs. Catherina Ana Dias had also expired during the pendency of the suit on 23/09/1994. However, her heirs were not brought on record. However, since the husband of the said Mrs. Catherina, namely Francisco Rosario Dias was already on record, there was no abatement of the suit.

In the Regular Civil Appeal No. 70/1999, the deceased Mrs. Catherina Dias was, however, impleaded as the respondent no. 7, as if she was alive. During the pendency of the said Regular Civil Appeal, the husband of the said deceased Catherina Dias, namely Francisco Rosario Dias impleaded as respondent no. 6, died on 01/02/2002. The legal representatives of the deceased Francisco Rosario Dias were not brought on record, in the said Regular Civil Appeal No. 70/1999. Thus the Regular Civil Appeal No. 70/1999, has been decided against two dead persons.

The learned Senior Counsel for the plaintiffs submits that the plaintiffs were not aware of the death of the said parties. In the circumstances above, it appears that in the Regular Civil Appeal No. 70/1999, the decree is passed in ignorance of death of two of the defendants/respondents, the respondent no. 7 having died during the pendency of the suit and the respondent no. 6 having died during the pendency of the said appeal, due to which the appeal had abated against the dead persons.

The High Court observed that in Second Appeal against such a decree, the court cannot itself set aside the abatement nor can it affirm the decree passed by the lower appellate Court. The proper course in such a case is to set aside the ineffective decree passed by the lower appellate Court and remand the case to the court where abatement has taken place leaving the parties to take necessary steps to have the effect of abatement set aside if they so desire and if they can satisfy the Court that parties are entitled to get the abatement set aside under law.

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Appeal High Court – Stricture against Department – Direction to replace advocates in old matters – Otherwise High Court would dispose old matters in their absence

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Commissioner of Central Excise, Thane II vs. Milton Polyplas (I) P. Ltd. (2015) 318 ELT 47 (Bom.)(HC)

In the Central Excise Appeals, the Hon’ble Court noted that the system of filing of Appeals and arguing them has undergone a drastic change. Now, each Commissionerate exercises discretion and chooses to engage an Advocate from a list of Advocates, for representing them. Any such Advocate practicing in this Court and authorised by the concerned Commissionerate to file the Appeal, keeps track of the same and argues it. The vakalatnama to act, appear and plead on behalf of these Commissioners located at various places, thus emanates from the said Commissionerates. At several Commissioners’ offices, there is a legal cell headed by an Assistant Commissioner level officer and either he or the staff of such cell keeps track of the cases pertaining to that Commissionerate, in addition to the Advocate engaged by that Commissionerate.

The Court observed that on several occasions, there is no indication as to who will argue the Appeals on behalf of the Commissioners. It was informed that some nodal officers were present in Court. However, the court cannot take note of their presence. The court is concerned with the Advocates, who have been engaged and authorised to argue cases.

The Advocates regularly appearing before the court informed the Bench that the concerned Commissionerate has not taken any decision as to who should replace one Mr. T. C. Kaushik and thereafter argue the Appeal.

The Hon’ble Court further remarked that when complaints are made, that old matters are not being taken up and given priority, then, firstly the Revenue/State should put its house in order. There are many old matters pending and for more than 10 years that have serious revenue implications. In the circumstances, the court directed the registry to send a copy of this order to the Office of the Chief Commissioner, Central Excise and Customs of each Commissionerate. The Court further observed that the high level officers may apply their mind so as to enable the Court to take up the old Appeals for hearing and disposal. Immediate steps should be taken to replace the old Advocates or else the court will be constrained to dispose off the matters in their absence.

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Stay on Recovery – Appeal filed before first Appellate Authority – Stay Application pending – Recovery of the amount by attaching the bank account not justified: Central Excise Act, 1944.

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Patel Engineering Ltd. vs. UOI 2015 (315) ELT 533 (Bom.)

The
Revenue proceeded to recover the entire amount by attaching the bank
account towards demand on account of service tax and penalty even though
the stay application was pending.

The grievance of the
Petitioner is that though an appeal has been filed before the
Commissioner of Central Excise (Appeals) against an order of
adjudication and even the stay application was pending, the Revenue
proceeded to recover the entire amount by attaching the bank account.
This action was purportedly taken in pursuance of a circular dated 1st
January 2013 of the Central Board of Central Excise and Customs.

The
Court observed that the circular has been considered and has been dealt
with in a judgment of this Court in Larsen & Toubro Limited vs.
Union of India (2013) (288) ELT 481 (Bom) wherein the court observed as
under:

“….The impugned circular dated 1 January 2013 mandating
the initiation of recovery proceedings thirty days after the filing of
an appeal, if no stay is granted, cannot be applied to an assessee who
has filed an application for stay, which has remained pending for
reasons beyond the control of the assessee. Where however, an
application for stay has remained pending for more than a reasonable
period, for reasons having a bearing on the default or the improper
conduct of an assessee, recovery proceedings can well be initiated as
explained in the earlier part of the judgment…..”

The court
further observed that there was no reason or justification on the part
of appellate authority to keep the stay application pending and take
recourse to coercive remedies under the law.

The law laid by the
Court on the interpretation of the circular of the Central Board of
Central Excise and Customs would bind all authorities who are subject to
the jurisdiction of this Court. In this case, we are of the view that
the court directed the appeal which has been filed by the Petitioner, to
be disposed of expeditiously by the Commissioner of Central Excise
(Appeals) within a period of four weeks of the date on which an
authenticated copy of this order is produced on the record.

The
Court further directed that henceforth the controlling authority shall
issue a circular to all the authorities within his jurisdiction that the
directions contained in the judgment of this Court in Larsen &
Toubro Limited (supra) shall be duly observed.

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Document not compulsorily registerable– Irrevocable Power of attorney – Relating to transfer of immovable property is liable for compulsory registration- Registration Act, 1908, section 17(1)(g).

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Jai Kumar vs. Hanuman & Ors. AIR 2015 Rajasthan 24 The petitioner plaintiff Jai Kumar through his power of attorney holder brother Yogesh Chandra filed a suit for declaration and permanent injunction against the respondent defendant. When during the course of statement by the power of attorney holder Yogesh Chandra the power of attorney given by the plaintiff – Jai Kumar was sought to be exhibited, an objection was raised that the power of attorney was neither registered nor the same bear requisite stamp duty and therefore, the same was inadmissible in evidence.

In reply, it was contended that the document was not required to be registered and as the power of attorney was executed at Qatar before the Indian Embassy and requisite fee amounting to 75 Qatari Riyals was paid, the same was sufficient in terms of sections 32 and 33 of the Indian Registration Act, 1908 (`the Act’).

The trial court came to the conclusion that the power of attorney was required to be compulsorily registered u/s. 17(1)(g) of the Act and as the same was not registered, u/s. 49 of the Act, the same was inadmissible.

The Hon’ble Court observed that a bare look at the said provision reveals that the power of attorney relating to transfer of immovable property should be `irrevocable’ for the same to be liable for compulsory registration.

The power of attorney nowhere indicates that the same was irrevocable. The requirement of applicability for provision of section 17(1)(g) of the Act, i.e. the power of attorney must be irrevocable, not being present in the document, it cannot be said that the same was compulsorily registerable.

The trial court without considering the said aspect has presumed the power of attorney as irrevocable, which presumption on face of it is incorrect and as such the said finding cannot be sustained.

So far as the objection raised by learned counsel for the respondent regarding deficient stamp duty is concerned, the submission has substance. The document and the receipt alongwith the document, does not indicate payment of any stamp duty on the said power of attorney. The amount of 75 Qatari Riyals said to have been paid by the plaintiff Jai Kumar cannot be said to be a payment of stamp duty.

Even otherwise, under the provisions of section 20 of the Stamp Act, even if a stamp duty has been paid in another State and the document is brought within Rajasthan, the document is chargeable with the difference of duty in case the duty to be paid is higher and the duty should have been already paid on the document `in India’.

In that view of the matter, even if, any payment has been made by the Petitioner at Qatar, which though cannot be termed as payment of stamp duty, and the Power of Attorney is liable to payment of stamp duty under article 44 of the Schedule attached to the Stamp Act.

The document was, therefore, liable to be dealt with by the trial court u/s. 39 read with sections 37 and 42 of the Stamp Act for determination and payment of deficient stamp duty.

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Probate of Will – Will though not probated, that does not prevent vesting of property of deceased in executor-Succession Act, 1925 section 211,213.

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In the case of Subodh Gopal Bose, AIR 2015 Calcutta 27

One Subodh Gopal Bose, was the owner of substantial properties, both movable and immovable. He died on 1st August, 1975 after having made and published his last will and Testament dated 8th July 1975 leaving behind as his only legal heirs, his wife Kamala Bose, and four daughters. Who are the beneficiaries under the said Will and Testament? Kamala Bose expired in 1977. Gita Dutta, one of the daughters, expired in June 2012. The present petition has been filed by Dipak Sarkar in his capacity as the executor of the will and Testament dated 28th April 2012 made and published by Gita Dutta. Application for grant of probate of the said will of Gita Dutta is still pending.

Vesting of property of deceased in executor does not take place as a result of probate. On the executor accepting his office, the property vests in him and the executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. U/s. 213 of the Indian Succession Act, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. The vesting of right is enough for the executor to represent the estate in a legal proceeding. The right of action in respect of personal property of the testator vests in the executor on the death of the testator. S/s. 211 and 213 of the said Act have different areas of operation. Even if the will is not probated that does not prevent the vesting of the property of the deceased in the executor and consequently, any right of action to represent the estate of the executor can be initiated even before the grant of probate.

The present petitioner has made this application in his capacity as executor of the last will and Testament of Gita Dutta. However, no Court of competent jurisdiction has granted probate of such will as yet although application for such probate may be pending. As such, the present petitioner cannot exercise any right as executor of the will of late Gita Dutta.

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Precedent – Judicial Discipline – Conflicting decisions by CESTAT Benches – Appropriate Course for the second Bench is to refer the matter to the Larger Bench: Central Excise Act, 1944.

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CCE, Mumbai vs. Mahindra and Mahindra Ltd. 2015 (315) ELT 161 (SC)

There is a conflict of opinion between two Benches of the Customs, Excise and Service Tax Appellate Tribunal.

Since two Benches of the same strength of Members have taken two conflicting views, that judicial discipline requires that instead of disagreeing with the view taken by the First Bench, the appropriate course for the second Bench would have been to refer the matter to a Larger Bench. This is the basic requirement of judicial discipline. Since this has not been done, the orders were set aside and remand both the appeals back to the Tribunal and directly the President to constitute a larger bench of three Members to decide the issue.

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Co-operative Societies – Charge on immovable property of Member borrowing loan – Society to get charge recorded in record of rights: Maharashtra Co-op Societies Act, 1961, section 48.

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Gajanan Eknath Sonan Kar vs. Shegaon Shri Agrasen Co-op. Credit Society Ltd. Buldana & Anr. AIR 2015 (NOC) 163 (Bom.)

The appellant plaintiff purchased, admeasuring 2 acres by registered sale deed dated 19-04-2002 from Raju Gopikisan Rathi. Before purchasing the property, he had ascertained, by all known methods, the saleable interest of the vendor. He had verified 7/12 extract when he purchased the land in the year 2001-02 but there was no charge mentioned in the said 7/12 extract. The vendor Raju Gopikisan Rathi on 17-06-2002, i.e. after the execution of sale deed in favour of appellant, mortgaged the said property with respondent No.1 Credit Co-op. Society, which granted him loan by mortgage of the said property without verifying whether he had sold the property to the appellant. Raju Rathi was member of respondent No.1 Credit Co-op. Society since he obtained the loan but the appellant had no concern with the said society. Obviously, because he had purchased it even before it was mortgaged. The appellant plaintiff issued a notice on 27-08-2012 u/s.164 of the MCS Act and filed suit on 10-09-2012, i.e. before the expiry of two months period for perpetual injunction u/s. 38 of the Specific Relief Act against respondent No. 1 Society and claimed injunction against Society for attachment of suit property. Respondent No. 1 Society, i.e. defendant No.1 therein, filed an application with a prayer to dismiss the suit for non compliance of section 164 of the MCS Act. The application was heard and the trial Judge allowed the said application and dismissed the suit.

The Hon’ble Court observed that it is thus clear from the above facts that the mortgage was made two months after the sale deed was executed and actually mutuated on 25- 11-2003 in the revenue records. Therefore, the appellant was not at all aware about the future course of action which Raju Rathi had decided to adopt after execution of sale deed. He is, therefore, at all not concerned with the mortgage made with the respondent No. 1 Credit Society. What is relevant is the entry of charge and the date thereof in the revenue record of the Govt. and not in the office of the society. At any rate, mere filing of application for loan on 14-12-2001 cannot be said to be charge u/s. 48 and Rule 48(5) of the Act and the Rules.

A careful reading of section 48 of the MCS Act and Rule 48 of the Rules framed thereunder, establishes that for knowledge to the people at large about the charge over immovable property or for claiming protection of section 48 of the Act, it would be mandatory for the society to get the charge on immovable property created or recorded in the record of rights maintained by the village officers of the village where the property is situated. Sub-rule 5 clearly says that if such charge is shown in the record of rights the same shall be treated as a reasonable notice of such charge created u/s. 48. Therefore, unless and until there is compliance of these two provisions, namely section 48 and Rule 48(5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise. I hold that provisions of section 48 and Rule 48(5) are mandatory in nature for a cooperative society if a cooperative society wants to claim benefit/protection of the said provisions.

It is well settled legal position of interpretation that when a similar expression is used in different places in a statute, it carries the same meaning unless contrary intention is disclosed. The institution of the suit claiming perpetual injunction to protect the civil right of the appellant qua the suit property cannot be said to be either an `act’ touching the business of the society even for that matter, `dispute’ touching the business of the society. It must always be construed that the `act’ touching the business of the society means `legal’ act for attracting the provision of section 164 of the Act. The act of the society in mortgaging the suit property which was already sold to the appellant who was not even a member of the society cannot fall in the definition of section 164 of the Act. Therefore, the provisions of section 164 will have no application in addition because the plaintiff wants to exercise his independent civil right.

The Respondent No. 1 Society is unnecessarily harassing the appellant/plaintiff without even bothering to look that the fault clearly lay with the respondent No. 1 Society in not taking the search report in respect of execution of sale deed in favour of the appellant on 19-04-2002 as against the charge being recorded in the revenue records on the suit property on 25-11-2003 for the first time. The respondent No.1 society is not at all justified in harassing the appellant when he has innocently and bona fidely and with all care, caution and circumspection purchased the suit property. Respondent No.1 should be saddled with exemplary costs payable to the appellant in the sum of Rs.10,000/-.

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Precedent – Circulars – Binding on Revenue – Implied overruling – Earlier ruling of smaller Bench held, stands overruled if a subsequent larger bench lays down law to the contrary: Constitution of India Article 141:

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Union of India & Ors vs. Arviva Industries India Ltd & Ors. (2014) 3 SCC 159

The Hon’ble Court held that the circulars issued by the Central Board of Excise and Customs are binding on the Department and the Department cannot be permitted to urge that the circulars issued by the Board are not binding on it. The Court in a series of decisions has held that the circulars issued u/s. 119 of the I.T. Act 1961 and section 37-B of the Central Excise Act, 1944 are binding on the Revenue.

However, a slightly different approach was taken by this Court in Hindustan Aeronautics Ltd. vs. CIT (2000) 5 SCC 365 by two learned Judges which runs counter to the earlier decisions. The view taken in Hindustan Aeronautics Ltd. (supra) being contrary to the subsequent decision of the Constitution Bench of this Court in CCE vs. Dhiren Chemical Inds. (2002) 254 ITR 554 / (2002) 2 SCC 127, cannot be taken to be good law. Earlier ruling of Smaller Bench held stands over rule if a subsequent larger bench lays down law to the contrary.

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Legal representatives of deceased – Scope – Corporate body or Collective entity when may claim compensation as legal representative – Motor Vehicles Act, 1988, S/s. 166, 168 and 173:

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Montfort Brothers of St. Gabriel & ANR. vs. United India Insurance Company Ltd. & ANR. (2014) 3 SCC 394

Appellant 1 is a charitable society registered under the Societies Registration Act, 1960. It runs various institutions as a constituent unit of Catholic Church. Its members after joining the appellant Society renounce the world and are known as ‘Brothers’. Such ‘Brothers’ sever all relations with their natural families and are bound by the constitution of the Society.

One ‘Brother’ of the Society, namely, Alex Chandy Thomas was a Director-cum-Head master of St. Peter High School and he died in a motor accident. The accident was between a Jeep driven by the deceased and a Maruti Gypsy covered by insurance policy issued by the respondent Insurance Company. At the time of death the deceased was aged 34 years and was drawing monthly salary of Rs. 4,190/-. The claim petition was filed before M.A.C.T., by Appellant No. 2 on being duly authorised by the Appellant No.1 the society. The owner of the Gypsy vehicle stated in his written statement that vehicle was duly insured and hence liability, if any, was upon the Insurance Company.

The respondent-Insurance Company also filed a written statement and thereby raised various objections to the claim. But it was clear from the written statement that it never raised the issue that since the deceased was a ‘Brother’ and therefore without any family or heir, the appellant could not file claim petition for want of locus standi. The issue no.1 regarding maintainability of claim petition was not pressed by the respondents. The Tribunal awarded a compensation of Rs. 2,52,000/- in favour of the claimant and against the opposite parties with a direction to the insurer to deposit Rs. 2,27,000/- with the Tribunal as Rs. 25,000/- had already been deposited as interim compensation. The Tribunal also permitted interest at the rate of 12% per annum, but from the date of judgment passed in MACT case.

Instead of preferring appeal against the order of the Tribunal, the respondent-Company preferred a writ petition under Article 226 of the Constitution of India before the Gauhati High Court and by the impugned order under appeal, the High Court allowed the aforesaid writ petition ex-parte, and held the judgment and order of the learned Tribunal to be invalid and incompetent being in favour of person/persons who according to the High court were not competent to claim compensation under the Motor Vehicle Act.

The Hon’ble Court observed that the issue as to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. But as a legal proposition it is undeniable that a person claiming to be a legal representative has the locus to maintain an application for compensation u/s. 166 of the Act, either directly or through any agent, subject to result of a dispute raised by the other side on this issue.

The Court observed that Tribunal had relied on the decision of FB judgement of Patna High Court in Sudama Devi vs. Jogendra Choudhary AIR 1987 Pat 239 wherein it was held that term `legal representative’ is wide enough to include even “intermeddlers” with the estate of a deceased. Further, the proceeding before Motor Accidents Claims Tribunal being summary in nature, unless there is evidence before Claims Tribunal in support of such pleading that the claimant is not a legal representative and therefore the claim petition is liable to be dismissed as not maintainable, no such plea can be raised at a subsequent stage and that too through a writ petition. Accordingly the order of High Court was set aside.

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Frivolous Litigation – State as a Litigant/party – Expenses to be paid personally by officials concerned:

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Haryana Dairy Development Co-op Federation Ltd. vs. Jagdish Lal; (2014) 3 SCC 156 (SC)

In the instant case, an amount of Rs. 8,724/- was to be paid to the Respondent employee as reimbursement of his medical claim. The Petitioner Haryana Dairy Development Cooperative Federation Limited filed a SLP before Supreme Court. The Court deprecated such practice of the petitioner corporation treating the litigation as a luxury. The corporation must have spent on amount for filing this petition in excess of the amount due to the respondent.

The Law Commission of India in its 155th report has observed that what further aggravates the position is the number of pending litigations relating to trivial matters or petty claims, some of which has been hanging for more than 15 years. It hardly needs mention that in many such cases money spent on litigation is far in excess of the stakes involved.

The court directed that the expenses of the litigation shall be incurred by the Managing Director personally who has signed affidavit in support of the petition and it shall not be taken from the Federation.

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Apology – Disturbing remarks/statement made by counsel for petitioner against Supreme Court Bench – Apology for such statement accepted – Constitution of India, Article 129:

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Manohar Lal Sharma vs. Principal Secretary & Ors. (2014) 3 SCC 172

The matters were posted in view of the following statement of Mr. Prashant Bhushan that appeared in the weekly news magazine Outlook, 18-11-2013 (Vol. LIII, No. 45):

“I can only speculate. The Bench is possible hesitant about taking action against the highest law officer of the Govt. who is appearing before them everyday. Perhaps they are meeting him socially and you do tend to be a little diffident in cases involving such people.”

The above statement was made by Mr. Prashant Bhushan to the question that was put to him – “But why didn’t the court pull him up then? Why was it so indulgent ?

Mr. Prashant Bhushan states that he has the highest regard for the Supreme Court. He also tenders apology for his statement published in the weekly news magazine referred to above. In view of the matter, the court observed that nothing further deserves to be done with regard to this aspect.

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Gift – Immovable property – Donor had reserved the right to enjoy the property during her life time did not affect the validity of the gift deed. – Transfer of Property Act, Section 122 & 123, 126.

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Renikuntla Rajamma (Dead) by LR vs. K. Sarwanamma; (2014) 9 SCC 445.

The appellant, a Hindu woman, executed a registered gift deed in respect of an immovable property in favour of the respondent reserving to herself the right to retain possession and to receive rents of the property during her lifetime. The gift was accepted by the respondent. But subsequently the appellant revoked the gift deed by a revocation deed. The respondent filed a suit assailing the revocation deed and seeking a declaration that the same was invalid and void ab initio. The trial court found that the appellant defendant had failed to prove that the gift deed set up by the respondent plaintiff was vitiated by fraud or undue influence or that it was a sham or nominal document. The gift, according to the trial court, had been validly made and accepted by the respondent plaintiff, hence, was irrevocable in nature. It was also held that since the appellant donor had taken no steps to assail the gift made by her for more than 12 years, the same was voluntary in nature and free from any undue influence, misrepresentation or suspicion. The fact that the appellant donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. Accordingly, the suit was decreed. The first appellate court and the High Court in second appeal concurred with the findings of the trial court.

The Hon’ble Court observed that sections 124 to 129 deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. Section 123 calearly provides that a gift of immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. When read with section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the life time of the donor and while he is still capable of giving is evident from a plain reading of section 122 of the Act. A conjoint reading of sections 122 and 123 of the Act makes it abundantly clear that “transfer of possession” of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of Transfer of Property Act, 1882.

The Court further observed that section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, ssection 123 makes transfer by a registered instrument mandatory. This is evident from the use of word “transfer must be effected” used by Parliament in so far as immovable property is concerned. In contradistinction to that requirement the second part of section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or “by delivery”. The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.

In the present case, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.

There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. As noticed earlier, section 123 does not make the delivery of possession of the gifted property essential for validity of a gift.

The High Court was in that view perfectly justified in refusing to interfere with the decree passed in favour of the donee. The appeal was hereby dismissed.

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Co-operative Society- Right of Membership- Society has the right to refuse membership.

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Bandra Owners Court Co-op. Housing Society Ltd. vs. The Divisional Jt. Reg. of Co-op. Societies Mumbai, W.P. No. 1011/2010, dated 3/2/1015 (Bom.)(HC).

The Petitioner-Society is a Tenant Cooperative Society, as contemplated under Rule 10 of the Maharashtra Cooperative Societies Rules, 1961. The Respondent No. 5 applied for the transfer of shares and suit flat from the name of Respondent Nos. 3 and 4th members of the Petitioner Society on 24th January 2004. Respondent No. 3 was the Director of Respondent No. 5 and also the Secretary of Petitioner Society. The Society refused the said transfer for want of sufficient stamp and registration. The Society never accepted the payment on behalf of Respondent No. 5, and even through Respondent Nos. 3 and 4, and communicated their inability to transfer the suit flat. The Application filed by Respondent No. 5, was therefore rejected and the flat remained, so also the membership, in the name of Respondent Nos. 3 and 4. The Society returned the amount paid to it. Respondent Nos. 6 and 7, on 15th August 2008, filed an Application for transfer of the suit flat and shares from Respondent No. 5 to them. On 26th August 2008, the same was rejected as Respondent No. 5 was not the owner of the suit flat in the above background. Respondent Nos. 6 and 7, therefore, invoked section 23(1) of MCS Act, 1960 before the Deputy Registrar of Cooperative Societies on 13th April, 2009. The Registrar directed that they be admitted as members in respect of the suit shares and the suit flat. The Petitioner Society therefore, preferred a Revision Application and challenged the above order. Respondent No.1 the Divisional Joint Registrar by impugned order dated 15th December 2009, rejected the Revision Application, therefore, the Writ Petition was filed by the Society.

The Hon’ble Court observed that the MCS Act and Rules made there under makes provisions for members and membership and various classes of the same and the procedure to be followed for getting such membership. Mere filing of Application for getting membership is not sufficient. The Society is governed and run by the byelaws, which is basic requirement to consider to grant and/or refuse such membership. Normally, the Society, needs to grant membership if all other requisite elements and/or qualifications are satisfied. Even for rejection, the Society must give sufficient reason and/or must show the grounds for such refusal of admission. In the present case, for the above stated case, the Society refused to accept the membership Application.

The basic scheme and procedure so prescribed under the MCS Act referring to “Member”/”Membership”. Section 2(19)(a) provides the concept of “member”. The concept “deemed member” as provided in sections 22(2) and 23 is not defined. Section 22(2) deals with the members who became members and section 23 provides a procedure for open membership. For deciding the membership issue, the aspect of restriction on transfer or charge of share or interest, as contemplated u/s. 29 is also relevant, so also to maintain the register of members as contemplated u/s. 38 of the MCS Act. Rule 38 of the byelaws provides that the Society needs to follow the byelaws, which binds the Society, as well as, its members. Rule 19 deals with the conditions before admission for the membership. This also provides the detailed procedure to be followed by all the parties. Rule 24 deals with the procedure for transfer of shares, as no transfer of shares shall be effective unless the condition so provided under the Rules and the Act are fulfilled.

Thus for transfer of membership and/or shares, the concerned parties need to follow the various procedure and the supporting material and documents. The Society needs to apply its mind to the law, as well as, the related record before granting and/or refusing admission. The statutory Authorities are also under obligation to consider this, if the Society refused the membership and/or any challenge is made to grant such admission. These, are essential elements before considering the rival case, as well as, the contentions at every stage of admission of members and/or granting membership.

Merely because someone has claimed membership, a Society is not under obligation to grant the same. The lawful occupation, their rights, title and interest in the property, permissible transfer of shares and/or property and/or interest as per the byelaws and all related aspects, just cannot be overlooked by the concerned parties, including the Society, as well as, the Registrar/Authorities.

The Society having refused to grant admission with reasoned order, the interference by the Respondent Authority in the present facts and circumstances of the case and specifically by not giving the reasons in support of their reversal order as contemplated and by overlooking the provisions and procedures of the orders passed by the Authorities are unsustainable, therefore, required to be interfered with.

Thus, the Hon’ble Court held that the fact that Respondent Nos. 6 and 7 have purchased the property and are in occupation of the same since 2008; their entitlement based upon the said transaction and/or related agreements need to be reconsidered in accordance with law by the concerned Authorities afresh, by giving full opportunity to all the parties concerned. Further, the jurisdiction of Registrar u/s. 23, though nowhere contemplated to determine the validity and/or legality of the documents, which are executed in favour of the parties, but still the basic elements as contemplated under the scheme and the provisions as referred above, right from the byelaws of the Society, need to be looked into before granting and/ or refusing membership. The serious issue of validity and/ or legality of the documents may be the matter of trial and/ or inquiry before the appropriate forum, but that itself is not sufficient to deny the membership, if all requirements are prima facie satisfied.

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Advocate – Relationship between the Advocate and the client depends upon the trust between the parties – When the client wants to engage another Counsel, the earlier Lawyer has got no option, except to recuse himself from the case – Advocates Act section 30.

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S. Diwakar vs. Dy. Registrar, High Court of Madras, Chennai & Anr AIR 2015 (NOC) 300 (Mad.). The appellant is a Party-in-Person and practising Advocate.

The appellant was the counsel for the 2nd respondent in a matter before the Magistrate Court. The 2nd respondent for the reasons known to him substituted the appellant with some other counsel. The subsequent counsel had filed his vakalatanama in the matter. The appellant sent a letter to the 2nd Respondent stating that his action is against the rule of law. The said letter was followed by filing Writ Petition before the High Court. The appellant submitted that his fundamental right to practice as a Lawyer has been infringed. The learned Metropolitan Magistrate ought not to have noted the change of vakalath filed without following the required procedure.

The Hon’ble Court observed that during the proceedings, a vakalath had been filed on behalf of the second respondent by another Advocate. Admittedly, the consent of the appellant had not been obtained.

The relationship between the Advocate and the client is strictly professional. It depends upon the trust between the parties. The legal profession is not only a service but also a calling. Therefore, when the client wants to engage another counsel, the earlier Lawyer has got no option, except to recuse himself from the case. Acting as a Lawyer to a client is different from any other disputes inter se including the payment of fees etc.

The Court further observed that the any fundamental right of the appellant has not been infringed. It is not as if the appellant has been debarred from doing his profession. It is purely a personal dispute between the appellant on the one hand and the second respondent on the other hand. It is not the case of the appellant that the vakalatanama has not been signed by the second respondent. On the contrary, it is the case of the appellant that the learned X Metropolitan Magistrate, ought to have conducted an enquiry as the change of vakalatanama has been filed without obtaining his consent. Assuming, that the permission of the court is required that aspect, at the best, can be termed as a procedural one. The duty of the Magistrate is to conduct the case before him and not to resolve the inter se between the Lawyer and the party. The Petition was accordingly dismissed.

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