Doctrine of escheat – Explained : Section 29 of Hindu Succession Act, 1956

Doctrine of escheat postulates that where an individual dies intestate and does not leave behind an heir who is qualified to succeed to the property, property devolves on Government. Though the property devolves on Government in such an eventuality, yet the Government takes it subject to all its obligations and liabilities. State in other words does not take the property “as a rival or preferential heir of the deceased but as the lord paramount of the whole soil of the country”. S. 29 comes into operation only on there being a failure of heirs. Failure means a total absence of any heir to the person dying intestate. When a question of escheat arises, onus rests heavily on the person who asserts absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case. Law does not readily accept such a consequence. In other words, even in a situation where a founder or his line of heirs is extinct and the properties escheat to the State, the state which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property.

Escheat is doctrine which recognizes State as paramount sovereign in whom property would vest only upon clear and established case of failure of heirs.

Kutchi Lal Rameshwar Ashram Trust Anna Kshetra Trust thr. Velji Devshi Patel vs. Collector, Haridwar and Others: AIR 2018 Supreme Court 614

Electronic records – Admissibility – requirement of furnishing certificate: Evidence Act of 1872, S. 65B(4)

Applicability of procedural requirement under S. 65B (4) of Act furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Ss. 63 and 65 of Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate u/s. 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under S. 65B(h) is not always mandatory. Party who is not in possession of device from which the document is produced, Such party cannot be required to produce certificate under S. 65B(4) of Act. Applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Shafhi Mohammad vs The State of Himachal Pradesh: AIR 2018 Supreme Court 714.

Devolution of interest in coparcenary property –Right of coparceners – Explained : Hindu Succession Act , 1956

Law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. Said changes have been brought forward to address growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. Section stipulates that daughter would be coparcener from her birth, and would have the same rights and liabilities as that of a son. Daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which daughter was subjected. S. 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, daughter of a coparcener shall by birth become coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. Amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. Section uses words in same manner as the son. It should therefore be apparent that both the sons and the daughters of coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. First stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth now including daughters.

Danamma alias Suman Surpur and another vs. Amar and others: AIR 2018 Supreme Court 721.

Ex parte decree – Remedies available – Is filing an appeal or an application for setting aside decree–Recourse to both proceedings can be taken simultaneously: CPC Order 9, Rule 13

Defendant against whom an ex parte decree is passed has two options: First is to file appeal. Second is to file application under O.9, R. 13. Defendant can take recourse to both the proceedings simultaneously. Right of appeal is not taken away by filing an application under O.9, R. 13. But if appeal is dismissed as result of which the ex parte decree merges with order of the Appellate Court, petition under O.9, R. 13 not be maintainable. When application under O.9, R. 13 is dismissed, remedy of the defendant is under O.43, Rule 1. However, once such appeal is dismissed, same contention cannot be raised in first appeal under Section 96 of Code.

M/S. Neerja Realtors Pvt. Ltd. vs. Janglu (Dead) Thr. LR: AIR 2018 Supreme Court 753.

Doctrines – Law of the Case – Meaning – It states that decision rendered in former appeal of case is binding in later appeal of same case

Doctrine of the Law of the Case, according to the Black’s Law Dictionary, holds that a decision rendered in former appeal of case is binding in later appeal of the same case. It is different from law of the trial, res judicata, or stare decisis. Garner’s Dictionary of Legal Usage elaborates on doctrine of law of the case: If case is appealed a second time [say, on remand] to a panel of Court of Appeals, panel with a different makeup from the first panel hears case the second time, second panel will generally hold itself bound by writings of first panel whether or not its members agree with those earlier writings. Law-of-the-case doctrine is said to come in at least two forms. One form, also called the mandate rule, forestalls “relitigation in Trial Court of matters that were explicitly or implicitly decided by an early appellate decision in same case. Once an Appellate Court decides an issue, then it is settled in further proceedings. Other form generally binds a Court to its own earlier ruling in same case— in the absence of an intervening ruling by higher Court on same issue. This doctrine wants the Courts to “display disciplined self-consistency” throughout the case. It distinguishes itself from res judicata (for instance, Section 11 of CPC) ‘issue estoppel’ (as seen in Order 2, Rule 2 of CPC), both of which are much more rigid and offer no much leverage.

However this doctrine has three exceptions: to address new evidence, to deal with a change in controlling legal authority, to prevent a miscarriage of justice. If applying doctrine would lead to, they postulate, clearly erroneous results and if uncorrected, would work a serious injustice, policy justifications of doctrine yield to interests of justice, Courts decline to apply the former decision. Finally comes cautionary caveat: despite this roster of three exceptions to the law-of-the-case doctrine, it bears repeating that the doctrine is a prudential one. These rules and exceptions are meant to be “guide to discretion,” not “a set of categorical rules, mechanically applied.

State of Kerala and Another v. K. K. Mathai : AIR 2018 Kerala 63.

Power and function of information commission – Information commission discharges administrative functions, not judicial functions: Right to Information Act

Decision taken by State Public Information Officer u/S.11 of the RTI Act, to disclose any information or record or part thereof, on request made under the Act, which relates to or has been supplied by third party and has been treated as confidential by that third party, is appealable u/s 19 of the RTI Act before the Information Commission. When Information Commission decides such an appeal, it decides only whether or not information should be furnished to the citizen in view of the objection of the third party. Information Commission does not decide the rights of a third party but only whether information which is held by or under the control of a public authority, in relation to, or supplied by that third party, could be furnished to a citizen under the provisions of the RTI Act. Hence, Information Commission discharges administrative functions, not judicial functions. While performing these administrative functions, however, the Information Commissions are required to act in a fair and just manner following the procedure laid down in Ss. 18, 19 and 20 of the RTI Act. But this does not mean that the Information Commissioners are like Judges or Justices who must have judicial experience, training and acumen.

Chandra Shekhar Kargeti v. State of Uttarakhand and Others: AIR 2018 UTTARAKHAND 38.

Impounding of document – Insufficiently stamped document presented for registration : Registration Act , 1908 sec. 69

When person presents document for registration, it is for registering officer to determine at first instance as to what is fee to be paid. Once such determination is made and the presenting party is dissatisfied, he has an option to apply to Inspector General of Registration who shall have power to refund excess. Section 33 of the Act relates to instruments that are produced as evidence or for such purposes before public authorities and which are not sufficiently stamped. Presentation of a document for registration stand on a completely different footing. It is possible that a person presenting a document has not been properly advised of actual stamp duty to be paid. It is, therefore, that Rule 207 provides that Registering Authority will have to first determine the fee. It would then be upon the person presenting the document either to pay that fee or to seek return of document without getting it registered. Obviously when a document remains unregistered for more than 120 days, it ceases to have any legal sanctity.

Assanaru Khan v. Sub-Registrar Chalai Thiruvananthapuram and Another: AIR 2018 (NOC) 267 (Ker.)

Lease – ‘Tenant by holding over’ and ‘tenant by sufferance – Distinction

‘Tenant by sufferance’ is one that continues after determination of lease without consent of the landlord. Such occupation of premise is not ‘Tenancy’ in sensu stricto and requires no notice to determine it, as status of tenant is akin to a trespasser though not exactly a trespasser being rightful in its inception “holding over” means that the relationship of landlord and tenant is allowed to continue after determination of lessee, with consent of both parties. A lessee holding over with consent of Lessor is in a better position than a tenant at sufferance. In case of a tenant at sufferance liability arises ex delicto, i.e., from a transgression and he will lible for damages in form of mesne profit and not payment of rent.

General Manager, Bharat Sanchar Nigam Limited (BSNL) v. Smt. Radhika Chettri. AIR 2018 (NOC) 285 (SIK.)