- Hindu Succession – Estoppel – Applicability – Suit for partition- Self-acquired property of grandfather of appellants – Father of appellants released his share in property on having received valuable consideration -Appellants not entitled to claim any share in property of their deceased grandfather : Hindu Succession Act of 1956, S. 8- Transfer of Property Act of 1882, S.6(a)
The property in question has been found to be the separate property of one Sengalani Chettiar. He died in 1988. Sengalani Chettiar had married twice. From his first marriage, was born Shri Chandran. Shri Chandran predeceased his father in the year 1978. Being the children of the pre- deceased son, the appellants would ordinarily have inherited the share as decreed by the trial court in the case. The terms of the release deed recites that Shri Chandran has released his share in respect of the property having received valuable consideration.Section 6 of the Transfer of Property Act enumerates property which can be transferred. It declares that property of any kind may be transferred except as otherwise provided by the Transfer of Property Act or by any other law for the time being in force. Section 6(a) declares that a chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or other mere possibility of a like nature cannot be transferred. A living man has no heir. Equally, a person who may become the heir and entitled to succeed under the law upon the death of his relative would not have any right until succession to the estate is opened up. When Shri Sengalani Chettair, the father of Shri Chandran, was alive, Shri Chandran his son had at best a spes successions. Unlike a coparcener who acquires the right to joint family property by his mere birth, in regard to the separate property of the Hindu, no such right exists. Thus, the Hon Court held that the Release Deed may not by itself have the effect of a transfer of the rights of Shri Chandran in favour of either his father or the minor son of his father from the second marriage.The Hon Court observed that the father of the appellants, by his conduct, being estopped, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the appellants, that the right under Section 8(a) of the Hindus Succession Act, purports to vest the right in the appellants. Therefore, appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act.
Elumalai Alias Venkatesan and Anr. v. M. Kamala and ors and etc. : AIR 2023 Supreme Court 659 [CIVIL APPEAL NO. 521 – 522 OF 2023, decided on 25-01-2023]
- Constitution of India, Art. 245 Legislative power – Exercise of Scope – The Legislature cannot directly overrule a judicial decision – However, when a competent legislature retrospectively removes substratum or foundation of a judgment to make decision ineffective, said exercise is valid legislative exercise provided it does not transgress on any other constitutional limitation.
The legislature cannot directly overrule a judicial decision. But when a competent legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. A legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an in- stance of abrogation. The power of the sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. It would be permissible for the legislature to remove a defect in earlier legislation pointed out by a constitutional court in exercise of its powers by way of judicial review. This defect can be removed both retrospectively and prospectively by a legislative process and the previous actions can also be validated. But where there is a mere validation without the defect being legislatively removed, the legislative action will amount to overruling the judgment by a legislative fiat which is invalid.
Baharul Islam and others v. Indian Medical Association & Ors., : AIR 2023 Supreme Court 721 [CIVIL APPEAL NO. 502 – 503 OF 2023, decided on 24-01-2023]
- Constitution of India, Art. 226 – Writ petition – Maintainability availability of alternative remedy- Cannot mechanically be construed as ground for its dismissal
The power to issue prerogative writs under Art. 226 is plenary in nature. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that the exercise of writ powers despite the availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts have discretion whether to entertain a writ petition or not. The mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Art. 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition “not maintainable”.Availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law.The “entertainability” and “maintainability” of a writ petition are distinct concepts. The objection as to “maintainability” goes to the root of the matter and if such an objection were found to be of substance, the courts would be rendered incapable of even receiving the list for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. Where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.
M/s Godrej Sara Lee Ltd. v. Excise and Taxation Officer – cum-Assessing Authority & ORS. : AIR 2023 SUPREME COURT 781 [CIVIL APPEAL NO. 5393 OF 2010, decided on 01-02-2023]
- Consumer complaint – Deficiency in service – Complaint in respect of failure of developers of housing complex, to provide services as promised.
Complaint in respect of failure of developers of housing complex, to provide services as promised. Dismissed without any categorical finding recorded by NCDRC whether and to what extent facilities and amenities as promised were offered and whether there was any deficiency in service though it was observed that conduct of developers was disapproved and they were guilty of ‘unfair trade practice’.The reason given by NCDRC that purchasers ought to have known what they were purchasing was not logical, finding that failure to obtain completion certificate was not fault of developers was contrary to statutory provisions .Completion certificate to obtain is obligation of person intending to erect building to apply for completion certificate S. 403 (2) of KMC Act pressed into service by NCDRC only to permit developers to wriggle out of such obligation . Though purchasers erred in taking possession without completion certificate that was not valid ground not to direct developers to apply for and obtain completion certificate as required by law.Finding that there was no deficiency in service was contrary to law.Matter remanded to relook into complaint in accordance with law.
Debashis Sinha and others v. M/s. R. N. R. Enterprises Rep. by its Proprietors/ Chairman, Kolkata And Others:
AIR 2023 SUPREME COURT 840 [CIVIL APPEAL NO. 3343 OF 2020, decided on 09-02-2023.
- Evidence Act – Public document Admissibility Suit for eviction – “Burden of proof’ – Evidence Act of 1872, Ss. 74, 78(6), 77
Plea of tenant that current landlords were not sons of original land lord. Tenants produced document from Directorate of Birth and Death to prove that current landlords were citizens of Pakistan and incompetent to own property. The court observed that document produced would fall in category of ‘other official document’ and its authenticity is not proved. Document did not bear any attestation by High Commission for India in Pakistan.. The landlords produced copy of birth certificate, school certificate to prove their relationship . Those documents are public documents and presumption as to its genuineness accepted under S. 79. Relationship of parties would also appear from original passports exhibited at trial without any objection. Relationship on basis of documents held, proved.Further tenant took eighteen years to produce sham document with sole intention to delay trial Exemplary costs of Rs.1 Lakh imposed.The Court further observed that under the Evidence Act there is an essential distinction between the phrase “burden of proof’ as a matter of law and pleading and as a matter of adducing evidence. Under S.101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour
Mussammat Khatoon Begum (Since Deceased) Muhammad Naseem Lodhi and other v. Raja Mohammad Amin and others :
AIR 2023 CALCUTTA 66 [FA NO. 261 OF 2010, decided on 06-12-2022].
- Senior Citizens – Declaration of gift deed as void – Maintenance and Welfare of Parents and Senior Citizens Act of 2007, S.23
In this context, in order to attract section 23 of the Act three conditions need to be fulfilled.
- transfer by way of deed of gift or otherwise and
- there must be condition that the transferee shall provide basic amenities and basic physical needs to the transferor and
- such transferee refused or failed to provide such amenities and physical needs.
The Court observed that in the present case the deed of gift is absolutely unconditional, reserving no right at all to the donor. No conditions were attached that the petitioner herein would have to provide basic amenities and basic physical needs to the transferor. Therefore order declaring gift deed as void, set aside
The power of the Tribunal to declare a transfer deed void, such power can be exercised only when the transfer is subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refused or failed to provide such amenities and physical needs. Normally recital in the deed is the best guide to answer the question as to whether such a condition was attached to the transfer. In the event the recital of deed is clear and unambiguous no extrinsic aid of construction need to be resorted to in order to gather intention of the parties but where there is some ambiguity in the transfer deed, the intention of the parties will have to be gathered from surrounding circumstances.
Biplab Ganguly v. Biswanath Ganguly and anther.
AIR 2023 CALCUTTA 49 [C.O. NO. 2606 OF 2019, decided on 22-12-2022].
- Precedent – Binding effect of Supreme Court Order – Doctrine of merger : Constitution of India, Arts. 141, 136
Supreme Court order containing elaborate discussions with reasons, in support of its decision not to exercise power to grant leave to appeal. Such dismissal of special leave petition against Division Bench order was not summary dismissal simpliciter by non speaking order. Judgment containing sufficient reasons while dismissing special leave petition, attracts Art. 141 of Constitution and shall always be binding for all courts within India. No Court or Tribunal or parties has liberty of taking any view contrary to one expressed by Supreme Court.When special leave petition is dismissed with sufficient reasons, it becomes a declaration of law.In light of recorded reasons and discussions, special leave petition is considered not fit for grant of leave. In such case Division Bench judgment against which special leave petition was filed, shall not merge with Supreme Court judgment . Doctrine of merger would not apply.
Tata Steel Ltd. and another v. Union of India and others.
AIR 2023 (NOC) 62 (CAL) [WPO NO. 70 OF 2006, decided on 03-12-2022].
- Res judicata-Scope and applicability – Rule of res judicata will not strike the jurisdiction of a Court trying the subsequent suit at the root : CPC Section 11
The Rule of res judicata will not strike the jurisdiction of a Court trying the subsequent suit at the root. This Rule is based on the principle that no one should be vexed twice for the same cause. This plea of res judicata is to be proved in accordance with law by placing required materials on record. It is not sufficient to raise the plea of res judicata in the pleadings but a specific issue is to be raised to put the parties on guard about the evidence that they are required to adduce. In spite of this, if there are no required materials to apply the Rule of res judicata, then the party pleading the defence of res judicata will not be successful only on that ground. Therefore, the party who takes up said defence has to substantiate the same by producing the pleadings, issues and the judgment in the previous proceedings.
Manchaiah v.Hyamaiah Hymagiraiah.
AIR 2023 (NOC) 91 (KAR) [Regular Second Appeal NO. 2692 OF 2010, decided on 31-10-2022]
- Motor Accident claim – Remarriage of claimant – entitled Compensation
The Bombay High Court held that remarriage will not disentitle the widow of a deceased in a motor accident from receiving compensation.The Hon Court observed that remarriage cannot be a taboo against motor accident compensation The court noted that at the time of accident, the wife of the deceased was only 19 years old. She remarried during the pendency of the claim petition.The court observed that a widow cannot be expected to remain a widow for life or till getting compensation.
The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad
[CIVIL FIRST APPEAL NO. 111 OF 2019, dated 03/03/2023, (Bom) (HC)]
- Democratic Right Of Citizens To Protest & Persuade – FIR quashed against Green Activist who sent messages to Metro Director to save Aarey Forest
The Hon Bombay High Court quashed the FIR against a green activist alleging harassment over messages sent to IAS officer Ashwini Bhide in 2018 against felling of trees at Aarey Colony for the Metro III car shed.The Hon Court quashed the FIR registered at the Bandra-Kurla Complex police station against petitioner, a resident of Bangalore and observed that there was nothing “offensive” in the messages and the accused was only trying to assert his democratic right.
Avijit Michael v. State of Maharashtra and Ors.
CRIMINAL WRIT PETITION NO.4181 OF 2018, Dated 05/04/2023, (Bom)(HC).
- Guide lines for writing judgement – All High Courts and tribunals across the country to follow a uniform format – to number the paragraphs in their orders/ judgments
The Supreme Court urged all High Courts and Tribunals across the country to follow a uniform format for all its orders and judgments and to number the paragraphs in their orders/ judgments.
The Hon Court issued directions in this regard to the registrars of all the High Courts.
“It is desirable that all courts and tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim … The learned Secretary General shall circulate this judgement to the learned Registrars General of all High Courts, to place the same before Hon’ble the Chief Justices, to consider adoption of a uniform format for Judgments and Orders, including paragraphing. The learned Chief Justices may direct the Courts and Tribunals subordinate to their High Courts accordingly as well,” the Court said.
The Hon Court referred to decision in Shakuntala Shukla v. State of Uttar Pradesh, 2021 SCC OnLine SC 672, this Court had the occasion to observe:
“35. … A judgement should be coherent, systematic and logically organised …”.
Similarly, in State Bank of India v Ajay Kumar Sood, 2022 SCC OnLine SC 1067, this Court opined:
“21. It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments. A Table of Contents in a longer version assists access to the reader.” (emphasis supplied)
The Court had emphasised the importance of coherent formatting, structuring and referencing in making judgments easier to read.
BS Hari Commandant v. Union of India and orsCRIMINAL APPEAL No(s). 1890 OF 2014; dt 13/4/2023 (SC)