1. Interpretation of statutes – Alternative interpretation – Applied – Right of Children to Free and Compulsory Education Act 2001, section 38
One of Mimansa principle is Gunapradhan axiom, wherein “Guna” means subordinate or accessory while “Pradhan” means principal. As per said principle characteristics of the accessory is determined by primary. The accessory has to operate subservient to the purchase of primary.
Rule 3(1) of 2010 Rules emphasises completion of five years of age on 1st June of that year as prerequisite for taking admission 1st standard. Object of the rule making authority is that, a child to be imparted education at the completion of age, that should be mature enough to go to the school, thus to be admitted to the school. The prescription of the date of 1st June is provided a kind of yardstick to be applied for considering the completion of five years. Rule 3(1) thus could be construed with reference to the Gunapradhan axiom
Even by applying principles of interpretation, it is eminently possible to construe “five years of age” by attaching the meaning to the word “years” as aggregation of days of a year which is comprised of 365 days. When Rule 3(1) of the Rules provides that the child should have completed five years of age as on 1st June of that year, the emphasis and leaning is on the completion of years, and the mathematical exactitude for understanding the word “age” is not warranted, especially when it is one day’s difference applied to attach inability on the child to be admitted to the elementary school.
Yusufbhai Mamadhai Dabawala v. Director of Primary Education, Gujarat State & others. AIR 2016 Gujarat 146
2. Impounding of document – Every ‘person’ having authority to receive evidence – Has power to impound document, not duly stamped: Karnataka Stamp Act, 1957, section 33(1)
Every person having authority to receive evidence has the power under Section 33 of the Act to impound any instrument or document, if it is not duly stamped. It is not necessary in law that the said person should also be in – charge of public office. ‘Person’ referred to in Section 33(1) of the Act includes and Arbitral Tribunal. Thus, Arbitral Tribunal has power to impound any document under Section 33 of Act.
Gajanan Ramachandra Velangi v. Vijaya Irappa alias Chudamani Undre and others. AIR 2016 Karnataka 163
3. Execution of Will – Suspicious circumstances: Succession Act 1925, Section 63
Will executed by testatrix in favour of son of her sister and excluding her brother. Will laying down reason for excluding brother of testatrix from any bequest. Will signed by two witnesses who were known to testatrix. Evidence on record neither leading to interference that testatrix was of unsound mind or was under control of beneficiary so as to be manipulated by beneficiary. Testatrix had written dairy in her own hand from which it cannot be established that testatrix was in debilitated mental
state as alleged by her brother. Circumstance surrounding execution of Will, not
Rama Sengupta (Deceased) v. Dipak Kumar Sengupta. AIR 2016 (NOC) 628 (Cal.)
4. Will – Genuineness – Succession Act, S.63
Testator bequeathing property to his two brothers by will, excluding his natural heir i.e., wife and only son. Allegation that character of wife was suspicious but not examined any witness to prove such allegation, as well as executant had no grudge against son, hence his exclusion is doubtful. Will cannot be said as genuine. Whenever the execution of a will is denied, burden is always on the propounder to ward off all suspicious circumstances surrounding the will. Execution of Will one of attesting witnesses at least must be examined to prove genuineness of Will.
Chennappa Gowda and others v. N. C. Rajashekara and others. AIR 2016 (NOC) 622 (Kar.).
5. Writ petition – Availability of alternative remedy – Constitution of India, Art. 226
Availability of alternative remedy is not absolute bar for granting relief by exercising writ jurisdiction. In case where order of proceedings are without jurisdiction or whether there is failure of principle of natural justice or where petition seeks enforcement of any fundamental rights, writ court can exercise its discretionary jurisdiction of judicial review. District magistrate decided question of unauthorised possession of party without considering said documents would result in arbitrary action. Order passed by Court setting aside order of Magistrate exercising discretionary writ jurisdiction despite availability of alternative remedy available under Act, not faulty.
Tej Krishan Sazawal and others v. State of Jammu & Kashmir and others. AIR 2016 (NOC) 651 (J&K)
6. Doctrine of ex-debito justitiae – Invocation of
The principle of ex-debito justitiae is founded on a recognition of a debt that the justice delivery system owes to a litigant to correct an error in a judicial dispensation. Its application, by the very nature of things, cannot be made to depend on varying perceptions of legal omissions and commissions but such recognition of the debt which have the potential of opening new vistas of exercise of jurisdiction to relook concluded cases, must rest on surer foundations . Frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts will certainly not be enough to extend the frontiers of this jurisdiction. The said jurisdiction because of its very nature has attracted the terminology of curative jurisdiction. The procedural steps with regard to filing and disposal of applications invoking the curative jurisdiction, termed as curative petitions, now finds mention in Order XLVIII of the Supreme Court Rules, 2013.
Ashiq Hussain Faktoo v. Union of India and others. AIR 2016 Supreme Court 4033.
7. Admission in school – Age of student – To be determined on basis of birth certificate – And not as per Juvenile Justice Act : Right of Children to free and compulsory education Rules (2010), R. 13
The intention of the legislature apparently is to facilitate the fulfilment of the promise contained in Article 21(A) to make education a fundamental right. It is therefore, apparently that no student is denied admission on the basis of objection raised to age, that the Act provides that for the purpose of admission, the age is to be determined on the basis of the birth certificate issued under the provisions of the Births, Deaths, Marriages Registration Act or on the basis of such documents, which have been prescribed in the Rules. The Rules provide, as already noticed, that reliance can be placed on the documents, which are mentioned therein, which include hospital or auxiliary nurse and midwife (ANM) register record, anganwari record and also a declaration of the age of the child by the parent or guardian. The legislative intention is unambiguously clear that no child is to be denied admission in the school for lack of age proof. The provisions of Section 14 & Rule 13 are undoubtedly applicable to the appellants’ school. Therefore, disregarding of this procedure while referring the matter for medical opinion and acting on the same to deny admission to the writ-petitioner would be impermissible and contrary to the mandates of the Act and the Rules. The matter in fact proceeded with on the basis of the case law laid down in the Juvenile Justice Act, which appears to have no application in view of the provisions of the Act and the Rules.
Principal, Jawahar Navodaya Vidyalaya and another v. Abhay Chaudhary (minor) and another. AIR 2016 (NOC) 562 (UTR)
8. Hindu Women’s Right to property – Widow cannot be said to be limited owner of property left behind after his death. Hindu Succession Act 1956, Section 14
Prior to 1937, the only sapindas who were succeeding the interest of the deceased where son, grandson and great grandson. After 14th April, 1937, the widow, pre-deceased sons widow and pre-deceased sons pre-widow were recognised to inherit the share. Till then daughters were not recognised as an heir. In the Hindu Women Right to property Act which was amended by Act No. II of 1938, the widow was given right to inherit the share of the husband in coparcenary property as a son as provided under section 3 of the Act No.23 of 1937. Prior to 1937, no right was conferred on the widow. section 4 of 1937 Act provides that nothing in this Act shall apply to the property of any Hindu
dying intestate before the commencement of this Act.
In view of this position, when husband died in the year 1914, the property devolved on the coparcener and his widow did not even take limited interest which is commonly known as widow estate in the estate of her husband as the Act of 1937 is not applicable in the present case according to section 4 of the said Act. When widow herself had not inherited the property, she had no title to transfer the same to the plaintiffs.
Further widow was not a limited owner and the plaintiffs is only a transferee through gift deed, there is no question of application of Section 14 of Hindu Succession Act. In other word, the plaintiffs did not derive any title on the basis of the gift deed said to have been executed in the year 1933 by widow.
Thus on the death of husband in the year 1914, his property devolved on the coparceners according to survivorship and the ownership vested on them. Therefore, this vesting of the ownership of the property will not be divested because of the enactment of 1937 Act or 1956 Act.
Dhrub Ojha & Ors. v. Chamela Devi & Ors. AIR 2016 (NOC) 567 (Pat.).
9. Appointment of Arbitrator : Arbitration and Conciliation Act (26 of 1996), Section 11(6)
When parties have agreed for resolution of dispute by arbitration in accordance with Rules of Arbitration of Indian Council of Arbitration. In such case Arbitration proceeding can commence only with notice under R.15 of ICA Rule of Arbitration. Thus stage contemplated under sub-section (6) of Section 11 of the Act yet to arrive for nomination of arbitrator by Chief Justice or his designate. Appointment of arbitrator, is not justified.
M/s. Nyimi Enterprise v. Guwahati Municipal Corporation, Panbazar, Guwahati, Assam and others. AIR 2016 (NOC) 562 (Gau).