Case BriefsHigh Courts

Rajasthan High Court:  A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

The instant application was filed for grant of temporary bail has on the ground that the appellant’s daughter namely, Ramila is getting married and the presence of the appellant is necessary to perform Kanyadan and other ceremonies in the marriage.

Counsel for the State submitted that the present temporary bail application has been verified and it is found that the appellant’s daughter is getting married on 28-04-2022

The Court held “Taking into consideration the ground, on which the temporary bail is sought, we are inclined to allow the application to the extent that the appellant shall be released on temporary bail upon furnishing a personal bond of Rs.25,000/- along with two local sureties…” [Ratna v. State of Rajasthan, 2022 SCC OnLine Raj 739, decided on 20-04-2022]


Appearances

For Applicant(s): Mr. Jagatveer Singh Deora

For Respondent(s): Mr. R.R. Chhaparwal


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

 Chhattisgarh High Court: Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

The appellants/defendants are all residents of Bilaspur. The suit land already described by this Court was the self acquired property of mother of defendants and plaintiff. Her name was recorded as title holder of the suit land. It was pleaded that plaintiff has taken care of his mother till his lifetime, all the last rituals have been performed by him and due to care taken by him she bequeathed a Will in favour of the plaintiff on 28-10-2010 and since then plaintiff was in possession of the suit land. After her death the plaintiff moved an application for mutation of the suit land in his name being successor per Will dated 28-10-2010 executed by her. The name of plaintiff has been mutated in the revenue record as the land owner on 10-09-2013. The defendants 1 to 3 had preferred an appeal wherein they had raised an objection that the plaintiff was not only successor of her and they were also the successor, as such their names should also have  been recorded in the revenue record.

The illegal interference of the appellants/defendants in the title and ownership of the suit land which is owned by the plaintiff necessitated the plaintiff to file present suit for declaration and for grant of permanent injunction.

Defendants filed their written statement denying the averments made in the plaint contending that the Will dated 28-10-2010 was forged one, as such, on the basis of forged document, order of mutation was illegal and against the provisions of law, therefore, order dated 10-09-2013 was not binding upon them.

From the factual matrix the Court identified two main issues:

(i) Whether the will has been proved as per the provisions of section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act?

(ii) Whether the defendants are entitled to get equal share of the suit land being coparcener as per Hindu Succession (Amendment) Act, 2005?

From analysis of the evidence and considering the evidence they have nowhere stated that will has been written as per the direction of the testatrix and also considering the fact that the witnesses have nowhere stated in their evidence that the testatrix has put her signature on the will in their presence. therefore, doubtful circumstances establish with regard to existence of will. Also, application which was filed before Revenue Court for mutation wherein the defendants have not made party despite aware of the facts that sisters are still surviving, it certainly creates doubt over genuineness of the will.

For deciding issue 1 the  Court considered the judgment of the Supreme Court in Murthy v. C. Saradambal, (2022) 3 SCC 209 and stated that it is crystal clear, that the validity of Will was not proved in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the plaintiff by placing material on record, therefore, judgment and decree so far as holding that the plaintiff was the owner of the suit was set aside.

For Issue 2 the Court extracted provisions of section 6 of Hindu Succession Act, 1956 as amended in 2005 and explained that since the plaintiff and defendants are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters were also entitled for getting equal share in the property inherited by their parents. The suit land was inherited by deceased mother, as such defendants and plaintiff were entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005. The Court relied on the judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 and decided that plaintiff and defendants were entitled to get ¼ shares in the suit property.

Counsel for the appellants/defendants had also filed application under Order 41 Rule 27 Read with Section 151 of the CPC for taking additional document on record by stating that during pendency of the appeal, the appellants/ defendants have filed an application under Order 1 Rule 10(2) CPC by which the respondent No.1 has sold total 10 decimal of the land in favour of respondent/plaintiff 3 , therefore, he was arrayed as party to the case. While allowing this application the Court held that sale of land shall also be subject to the decision of this appeal and the land already sold to respondent 3, if it is part of suit land then .040 hectare land will be adjusted/ reduced from the share of plaintiff.

Counter claim and appeal filed by the defendants was allowed and it was held that defendant 1-3 were entitled to get equal share in the property as per Hindu Succession Act, as amended in 2005.[Sonia Bai v. Dashrath Sahu, 2022 SCC OnLine Chh 468, decided on 28-02-2022]


For the Applicants : Mr Aman Sharma

For the Respondent 1 : Mr Dhirendra Mishra

For the State : Mr Sameer Sharma, Dy. GA

For the Respondent 4. : Mr Dashrath Prajapati


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters.

Plaintiff had sought for relief of partition and for allotment of 1/5th share in the suit property and also sought for declaration of the sale deed executed by the 1st defendant in favour of the 5th defendant as null and void.

Plaintiff’s case was that the suit property formed part of a larger extent of property which was ancestral in nature. It was claimed that 1st defendant father and defendants 2 to 4 who were the sisters of the plaintiff were each entitled 1/5th share in the suit property.

The grievance of the plaintiff was that the 1st defendant went ahead and sold an extent of 36 cents in favour of the 5th defendant through a sale deed and according to the plaintiff, this sale deed was null and void and not binding on the other sharers. Further, the 1stdefendnat was not coming forward to allot the shares to the other legal heirs and hence, the suit came to be filed seeking for the reliefs.

1st defendant submitted that he was the absolute owner of the property during his life time and plaintiff cannot claim any share in the property.

Analysis, Law and Decision

High Court noted that the source of the property was admitted to be ancestral.

Main Issue

Nature of inheritance made by the three sons of Thalaivirichan Reddy.

The Bench expressed that, even after the Joint Family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and/or daughter is born, they will get a right and share over the property by birth. As rightly held in the above judgment, the 1956 Act has not put to an end the co-coparcenary rights and infact, it continues to be reiterated after the coming into force of the 2005 amendment Act.

Further, the Court expressed that,

Even if there was a family arrangement between the three sons of Kathavaraya Reddy and by virtue of the same, the 1st defendant had allotted 1.07 acres, the moment the plaintiff and defendants 2 to 4 were born, they will also be entitled for a share in the property.

In High Court’s opinion, lower Courts had lost the sight of law governing the property and had erroneously concluded that the property in the hands of 1st defendant was his exclusive property and that daughters will not be entitled to claim a share in the property.

It is nobody’s case that the 1st defendant had sold the property and had utilized the money for illegal purposes. Therefore, the assumption should be that it was utilized by the 1st defendant for the family.

“…this Court must also safeguard the rights of the plaintiff and defendants 2 to 4 to the extent possible and ensure that they get a reasonable share in the suit property. This is the only way to balance the rights of the daughters and the father in the suit property.”

Court added that,

The manner in which the property is going to be distributed by balancing the equities can be decided by the Trial Court at the time of passing the final decree.

Hence, the second appeal was partly allowed granting 1/4th share to the plaintiff and defendants 2 to 4 in the property that remained after the extent that had already been sold in favor of 5th respondent. [S. Sampoomam v. C.K. Shanmugam, 2022 SCC OnLine Mad 1594, decided on 5-4-2022]


Advocates before the Court:

For Appellant: Mr.A.Gouthaman

For Respondents: Mr.R.Rajarajan for R1 to R5

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Satyen Vaidya, JJ. dismissed the petition being devoid merits.

The facts of the case are such that the petitioner was appointed as Staff Nurse at IGMC Shimla, however, prior to joining the respondents Department, marriage of the petitioner was solemnized in the year 2016 and her husband is employed in Delhi in a private company. The only ground on which the petitioner sought her transfer was that since from the birth of her daughter Mrinali Thakur, the petitioner has never been able to enjoy the company of her daughter except for the period when the petitioner was sanctioned maternity leave and any other kind of duly sanctioned leave and the fact, that since the nature of the job of the petitioner has been such like that she hardly spares time for her child and as such she could not afford to keep her daughter with herself at Shimlahe instant petition was filed seeking relief in the nature of mandamus and the respondents may be directed to decide the representation moved by the petitioner sympathetically and transfer the petitioner from IGMC Shimla to SLBS Medical College & Hospital Ner Chowk, Mandi, against the vacant post, keeping in view the genuine request of the petitioner as mentioned in the representation.

The Court observed that mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law. In other words, a writ of mandamus is issued against a person, who has a legal duty to perform, but has failed or neglected to do so. The mere fact that the representation has been filed before the respondents does not furnish any cause of action in favour of the petitioner to maintain the instant petition; for there is no corresponding duty cast upon the respondents to decide such representation. While choosing career and particular service, the petitioner very well knew that she could not be transferred to the station where her husband is posted in a private job in Delhi and was thus required to be prepared to face such hardships

The Court thus held the instant petition and the same is accordingly dismissed, so also the pending application(s).[Lata Devi v. State of HP, 2021 SCC OnLine HP 8908, decided on 04-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Rajiv Rai

For respondent: Mr. Ajay Vaidya

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., while directing Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of a girl and to find out whether she was a fit person to be declared as a child in need of care and protection as the father of the girl child had executed “Daanpatra” to give the daughter in a donation to a Baba.

Applicants were arrested for the offences punishable under Sections 376, 376(D), 341, 323 of Penal Code, 1860 and under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO).

The victim informant who was stated to be 17 years old girl, stated that she resided with her father who was a devotee in Mahadev Temple. The applicant stopped the victim while she was proceeding on a scooter owned by one Baba near her house. After outraging her modesty, the applicants ravished her and after that, she was allowed to go.

It was stated that the Baba and his disciples used to consume Ganja, Bhaang and slowly they started collecting youth from the village for such activities. In March 2021 a Gramsabha was organized and it was decided that said Baba and other disciples along with the victim should be asked to leave the temple premises. Even the Gram Panchayat asked the Baba and others to leave.

As per the medical opinion, there were absolutely no signs on the body of the girl which would indicate that the act was forcible.

In the FIR, though the victim–informant had given her age and the date of birth, the investigating officer had not collected any documentary proof.

High Court stated that noting the investigation was over, a charge-sheet was also filed. The Court opined that, the present case would be a fit case to release the applicants on bail, however with stringent conditions.

The Bench noted that a fact which came on record was disturbing as a document styled as ‘Danpatra’ on stamp paper of Rs 100 was executed between the father of the girl and the Baba, as per which the father had given his daughter in a donation to the Baba and the said Kanyadaan was made in the presence of the god.

When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.

 In view of the above fact, respondent 2 was asked to file an affidavit about the incident.

Interestingly, the name of the person to whom the daughter was given in adoption was the same as that of the person who had filed the affidavit i.e. affiant. The Advocate for respondent 2 had not even taken care while drafting the affidavit that it should be in the proper name. The affiant, therefore, further stated that the proper adoption deed had not been executed and the adoption process will be followed. He said that the girl was residing with him as of today.

Bench expressed that it was concerned with the future of the minor girl in view of such document coming forward, can’t shut eyes.

In Court’s opinion, the present case is fit where the directions need to be given to the Child Welfare Committee, Jalna to hold an inquiry on an expeditious basis in respect of the girl and to find out whether she was fit person to be declared as a child in need of care and protection.

At the cost of repetition, it can be said that in view of the actions taken by the father of the girl in executing “Danpatra”, this Court is required to interfere. This is in view of the future of the girl and she should not be driven to do any illegal activities.

 Therefore, bail application was allowed. [Shankeshwar v. State of Maharashtra, 2022 SCC OnLine Bom 171, decided on 3-1-2022]


Advocates before the Court:

Mr S. S. Thombre, Advocate for the applicant in BA/1366/2021. Mr P. P. More, Advocate for the applicant in BA/1345/2021.

Mr N. T. Bhagat, APP for the respondent – State in both matters. Ms Shital E. Waghmare, Advocate for respondent No.2 in both matters.

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.

Instant appeal was directed against the decision by which the appellant was convicted for offences under Section 376(2)(f) and 506 of the Penal Code, 1860 and under Section 5(n) read with Section 6 of Protection of Children from Sexual Offences Act (POCSO).

Father (accused) of the prosecutrix (PW2). PW 2 informed the Child Welfare Committee that the accused had subjected her to sexual abuse, hence police was directed to record the statement of PW 2, pursuant to which an FIR was registered for offences under Section 376 (1)(ii), 506 of IPC and Section 6 of POCSO Act.

Additional Sessions Judge held that the evidence of the prosecutrix amply proved that the accused had subjected her to rape. Therefore, relying upon the sole testimony of the prosecutrix, Judge held the accused guilty of the above-stated offences.

Analysis, Law and Decision

High Court expressed that the conviction can be based on the sole testimony of the prosecutrix provided the evidence of the prosecutrix is found to be worthy of credence and reliable and is of sterling quality.

In the Supreme Court’s decision of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, it was held that

the “sterling witness” should be of a very high quality and calibre whose version should be unassailable. The Court considering the version of such witness should be in a positing to accept it for its face value without any hesitation. To test the quality of such witness, what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to with stand the cross examination of any length and howsoever strenuous it may be, and under no circumstance should be roomed for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it.

 What led to the prosecutrix stating that she was raped by her father?

The evidence of PW2 revealed that she was housed in Bal Sudhar Griha for theft of a laptop. About a month later, the accused brought her home. She had deposed that the accused did not allow her to leave the house and used to beat her. She, therefore, ran away from the house, but the accused brought her back and assaulted her and cut her hair.

One day under the influence of alcohol, the accused touched PW2 inappropriately and when she resisted, he offered her money. Thereafter, he removed her clothes and had forcible sexual intercourse with her. She could not inform earlier about the said incident, since the accused used to threaten her.

High Court observed that this witness had not stated in her statement under 161 of CrPC that the accused had touched various parts of her body and offered her money and tried to have forcible sexual intercourse with her. This was a material omission that casts a doubt on the credibility of this witness.

It was noted that the room in which PW 2 used to sleep several other family members also used to sleep in the said room and accused used to sleep in the vehicle outside for want of sufficient space in the room. Hence, in such circumstances, it is highly improbable that the accused would rape his daughter without any of his family members coming to know about the incident.

The Bench stated that PW2 had admitted that after the accused had brought her back from Bal Sudhar Griha, he prevented her from leaving the house and whenever she did not listen to him, he would beat her and that he had even cut her hair. Her evidence also indicated that she was annoyed with the accused of beating her and putting several restrictions on her.

The Court opined that in the above-stated circumstances, the possibility of PW2 falsely implicating the accused in the rape case could not be ruled out and the evidence of PW. 2 was not reliable and trustworthy.

Bench added that PW 2 did not pass the test of a ‘sterling witness’ and hence no conviction could be based on the uncorroborated testimony of PW 2.

Therefore, the appeal was allowed, and the accused was acquitted of offences under Section 376(2)(f) and 506 of IPC under Section 5(n) read with Section 6 of POCSO Act. [X v. State of Maharashtra, Criminal Appeal No. 1704 of 2019, decided on 1-12-2021]


Advocates before the Court:

Mr. Aniket Vagal for the Appellant.

Mr. S.V. Gavand APP for the Respondent-State.

Mr. S. R. Nargolkar a/w. Arjun Kadam for the Respondent No.2.

Case BriefsDistrict Court

Tis Hazari Courts, Delhi: Kirandeep Kaur, Civil Judge – 05, discussed the legal position on a coparcener’s daughter also being a coparcener of the Hindu Undivided Property.

Factual Matrix

The plaintiffs were the lineal descendant of Sunder Lal who died intestate. He was the owner of a property and after his death, the plaintiffs succeeded the said property which is in dispute in this suit.

Defendant was the daughter of Kanhya Lal, son of late Sundar Lal, who was in the habit of drinking and used to do nothing and due to being a drunkard, he died.

The defendants were six daughters and one brother. Their father died, when all of them were minors. Their father was in very miserable condition and was having no means. The plaintiffs 1 to 3 brought them up and got them married. The defendant had no place to reside after marriage, therefore, taking pity on her condition, she was allowed to reside in the room in the question on her promises to vacate as and when asked with the leave and license of the plaintiffs and her possession is mere permissive.

The said suit property required immediate re-construction. When the defendant was asked to vacate the premises for reconstruction, there came a flat refusal to do so.

In view of the above-stated circumstances, a legal notice was served and virtue of the same, the license of the defendant was terminated while being asked to vacate the suit property and pay Rs 10,000.

Analysis

Since the defendant did not adduce any evidence to prove that the plaintiff had suppressed any material fact, the said issue of material facts being suppressed by the plaintiff was decided against the defendant.

It was alleged that the plaintiff had no locus standi to file the present suit because the plaintiffs, the defendant and the sister and brothers of the defendant were all the co-owners in the suit property being legal heirs of the owner of the property. Plaintiffs and defendant both parties cannot dispossess each other from the suit property and cannot demand the mesne profit or create the third party right in the suit property.

Whereas the plaintiff alleged that the suit property was an ancestral and coparcenary property but the defendant was never a coparcener in the Hindu Undivided Family, she thus had no title, right and interest in the suit property.

In the present matter, it was inferred that the defendant was the granddaughter of Sunder Lal or in other words, the cousin sister of the plaintiff.

Legal Question

Whether the daughter of the coparcener who has died before the commencement of amendment of 2005 in Section 6 of Hindu Succession Act is coparcener in Hindu Undivided Family?

Application of amendment in Section 6 of Hindu Succession Act was discussed in detail in Supreme Court’s decision of Vineet Sharma v. Rakesh Sharma, (2020) 9 SCC 1.

Though the father of the defendant passed away on 9-5-1987, but as held by the Supreme Court in the above-stated case that, the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

In view of the above-stated position, the defendant being the daughter of a coparcener is a coparcener in Hindu Undivided Property. Accordingly, she had the right by birth in the suit property as it was admitted fact that suit property was ancestral property.

Therefore, the defendant was the coparcener in the suit property, and she had the right, title and interest by birth by virtue of amendment in the Hindu Succession Act.

Hence, the plaintiff did not have locus to seek possession from the defendant on the ground that she was licensee in the suit property.

In view of the above-discussed position and background, the suit of the plaintiffs was dismissed. [Gian Chand v. Kishan Lal, CS No. 602704 of 2016, decided on 25-11-2021]

Case BriefsHigh Courts

Bombay High Court, Bench at Aurangabad: Vibha Kankanwadi, J., while addressing a matter revolving around the property, observed that,

Article 254 of the Constitution gets attracted only when both Central and State legislations have been enacted on any of the matters in the said List and there is conflict between two legislations.  

The basic principle is that the Central legislation will prevail as Article 254(1) of the Constitution gives supremacy to the law made by the Parliament.

Factual Background

The instant matter pertained to partition and separate possession.

Appellant submitted that the Courts below did not consider the evidence and the law points properly and the relationship between the parties was not denied.

Plaintiff and the defendant 3 were sisters and defendant 1 was their brother, inter se. Original defendant 2 was their mother and father expired on 14-12-1998 who had left behind the suit property.

There was no actual partition of the property because no share was given to defendant 2. The said property was divided into plots and, therefore, its price went up.

The plaintiff had contended that defendants 1 to 3 intended to oust the plaintiff from inheritance and, therefore, she demanded her share from the suit property, however, it was refused and, therefore, she had filed the suit. Later defendant 2 also expired.

Further, it was denied that the plaintiff and defendants were members of the joint family.

Two hectares and 42 R land was given to defendant No.1 and rest of the property was kept by Jyotiram in the name of himself and defendant No.2 in the year 1982.

Appellants advocate contended that the Courts below wrongly held that the suit property was ancestral and joint Hindu Family property of the plaintiff and the defendants.  Both the Courts below did not properly consider the law point involved in the case and went on to observe that the case was governed by amended Section 6 of the Hindu Succession Act (as amended in 2005).

It was further submitted that the plaintiff got married in the year 1966 and defendant 3 got married in 1965. Therefore, even now, those daughters cannot get the benefit of the amendment to the Hindu Succession Act.

Section 29-A of the Hindu Succession Act, which was Maharashtra Amendment, made a specific provision and gave right to unmarried daughter/s after the said Act came into force w.e.f. 22nd June, 1994. Though now all the daughters have been made co-parceners; yet we are required to see that Section 29-A of the Hindu Succession Act, i.e. Maharashtra Amendment, had received assent of Hon’ble President of India.

 Legal Position

A very significant point to be noted was that in the present situation, after Section 6 of the Hindu Succession Act, 1956 was amended in 2005; yet the Centre did not notify or declare that Section 29-A of The Maharashtra Amendment to Hindu Succession Act, as repealed and, therefore, the daughters, who were married prior to 1994, would not get any share in the property left by their father.

In view of the above-stated position, substantial questions of law arose in the present matter, requiring admission of the Second Appeal.

Partition

High Court expressed that both the Courts below, properly appreciated the evidence and concluded that the defendant failed to prove the previous partition allegedly effected in the year 1982.

Main Contention

Section 29-A of the Hindu Succession Act is still in operation and, therefore, the married daughters, i.e. those daughter, who were married prior to 1994, will not get any share either in the ancestral or joint family property.

High Court stated that a limited right was given to the daughter earlier, and therefore, in order to widen the scope and the rights along with and after certain States made amendment; Maharashtra State amended the law and gave right to the daughter equivalent to sons by making her co-parcener. However, it was limited to those daughters, who were unmarried at the time of coming into force of the said provision.

Law on Succession

Court expressed that the law on the point of Succession is at Entry No.5 of the Concurrent List, i.e., List No. III in the Seventh Schedule. Article 254 of the Constitution gets attracted only when both Central and State legislations have been enacted on any of the matters in the said List and there is conflict between two legislations.

Further, it was added by the Bench that in the year 2005, the Union Government brought an amendment to Section 6 of the Hindu Succession Act and made the daughters as coparceners and was done with a view to give equal rights to the daughters in comparison to sons. When the Maharashtra State Amendment was restricted to un-married daughters (excluding the daughters, who were married prior to 1994), no such distinction has been made in Section 6 of the amended provision by the Union Government and, therefore, the repugnancy existed.

Taking into consideration both the enactments, i.e., Section 29-A and Section 6, as amended in 2005, they cannot stand together and, therefore, the law made by the Parliament would prevail over the State Law in view of Article 254(1) of the Constitution of India. 

Central enactment, i.e., Section 6 Hindu Succession (Amendment) Act, 2005 would be applicable to this case and in view thereof, the plaintiff has share in the suit property, which has been rightly adjudicated by both the Courts below.

In Court’s opinion, no substantial question of law as contemplated under Section 100 CPC arose in the present matter, which required the admission of the Second appeal.

Therefore, in view of the decision of Kirpa Ram (deceased) v. Surendra Deo Gaur, [2021 (3) Mh. L.J. 250], the second appeal deserved to be dismissed at the threshold. It deserved to be dismissed.

Civil Application No. 8434 of 2019 was moved by the applicant. The applicant was the wife of original defendant 1 and mother of original defendants 4 and 5. She came with a case that during lifetime of original defendant 2, i.e. her mother-in-law, had executed a will in favour of the applicant and therefore she became owner of other half share of the property and further tried to produce the will.

It was noted that the matter was before the trial court for about 8 years and no attempt was made by defendants to disclose it to the Court that any such will was left by defendant 2.

Court expressed that,

Though the husband and sons had every knowledge about the suit, it is hard to believe that the applicant, who is residing with them, had no knowledge about the suit that was filed; the decree that was passed and the appeal was filed by the husband. There was no attempt on the part of the applicant to contest or get herself added as respondent.

Concluding the matter, Court held that for about four (4) years, nine (9) months and Twenty-six (26) days, the matter was before the first Appellate Court, yet once again no attempt was made by the present applicant to get herself added as party to the proceeding or challenge the decree passed by the Trial Court independently in her own capacity. In view of this, the present application does not deserve to be allowed.[Babu v. Muktabai, Second Appeal No. 402 of 2019, decided on 1-12-2021]


Advocates before the Court:

Mr Mukul S.Kulkarni, Advocate h/for Mr Kiran T.Jamdar, Advocate for Appellants;

Mr GR Syed, Advocate for Respondent No.1;

Mr VD Godbharale, Advocate for Intervenor

Case BriefsHigh Courts

Bombay High Court: Noting in case after case, complaints from senior citizens that their own sons and daughters are harassing them, Division Bench of G.S. Patel and Madhav J Jamdar, JJ., expressed that,

“…the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without thought spared to the mental or physical health well-being or happiness of these seniors.”

Instant petition challenged an order passed by the Welfare Tribunal and Deputy Collector Mumbai City on a complaint made to that tribunal by 2nd respondent (Mr Shetty). 2nd respondent was the father of four daughters.

Mr Shetty stated that he does not want his daughter petitioner Shweta to remain, occupy or reside in Flat No. 2A, Giriraj CHSL, 11 Altamont Road, Mumbai.

Controversy

There was no doubt that Mr Shetty was the sole and absolute owner of the above-stated flat and Shweta has no right of any kind in the said flat. She has not even canvassed any independent right to the flat at all.

Background

Mr Shetty, aged 94 years old was a widower with several age-related health ailments and he was being continuously harassed and mistreated by Shweta.

He submitted that, Shweta contributed nothing to the house and was rude, aggressive and with time her conduct deteriorated. She began to badger Mr Shetty “for her share of the property” and said that she would leave the flat only after she was given “her share”. Shweta even caused physical distress to the domestic help and damaged the household as well.

In view of the above, Mr Shetty sought Shweta’s eviction from a Tribunal.

Analysis, Law and Decision

To constitute eviction, or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition.

 Agreeing with the various decisions of the Courts, Bench expressed that,

“…it is our experience that in this city, and particularly or most especially amongst the wealthy of this city, senior citizens and elderly parents are being subjected to all kinds of harassment and deprivation in their twilight years.”

 In the instant matter, the daughter has been demanding her share from her father’s property but what is her ‘share’ while he is alive? Well, none. As long as Mr Shetty is alive, Shweta has no ‘share’ in his property.

Bench added to the above that,

“…this is not an isolated experience at all. It is, in fact, a widely noticed trend and it is to address this evil – we will not even call it mischief – that the 2007 Act was brought into force.”

When the Court spoke to Mr Shetty he was completely unambiguous and indeed emphatic in his statement to the Court that he did not want Shweta in his house for one minute longer. He repeatedly asked that she be made to leave his flat and that he be left in peace.

With respect to the argument of Mr Thorat that the Act does not contemplate the removal of any person from immovable property, Court found the said proposition to be incorrect.

Court agreed with the views of this Court in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246 along with the decision of Delhi High Court in Sunny Paul v. State of NCT of Delhi, 2018 SCC OnLine Del 11640.

Bench lastly, added that if the Delhi rules provide for eviction of a person with no right in the property to protect the interests and welfare of a senior citizen, this necessarily means that the right to order removal of a claimant exists in the statute itself.

In view of the above petition was rejected. [Shweta Shetty v. State of Maharashtra, 2021 SCC OnLine Bom 4575, decided on 25-11-2021]


Advocates before the Court:

For the Petitioner: Mr Pradeep Thorat, i/b Manoj Agiwal.

For the Respondent 2: Dr Sujay Kantawala, with Aditya Iyer.

For Respondents 3,4 and 5: Ms Aishwarya Kantawala.

For the State: Mr Kedar Dighe, AGP.

Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J., decided a matter wherein the son-in-law claimed his right on father-in-law’s property while pleading that he was adopted by his wife’s family after marriage and hence had a right on the property.

Plaintiff aged 69 years was the respondent in the appeal claiming for permanent injunction interdicting the defendant from trespassing into the plaint schedule property or interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property and the house therein or committing any waste therein.

The said suit property belonged to the plaintiff by virtue of a gift deed.

Plaintiff also submitted that he had constructed a concrete house spending his own funds and was also residing with his family on the said property.

The defendant was the son-in-law of the plaintiff and he had no manner of right over the property.

Reason for filing the suit was that the defendant was disturbing the plaintiff’s peaceful possession and enjoyment of the suit property.

What was the son-in law’s contention?

Son-in-law contended that he had married the only daughter of the plaintiff and has been practically adopted as a member of the family subsequent to the marriage. Hence, he maintained that he has a right to reside in the house, as of right. He also added that he had constructed a building in the property expending his own money and has no other place of abode.

Trial Court’s decision

Trial Court held that the plaintiff is the owner in possession of the plaint schedule property and the defendant, who is the son-in-law of the plaintiff, has no manner of right in interfering with the possession of the plaint schedule building.

First Appellate Court upheld the trial court’s decision.

Question for Consideration:

Does a son-in-law have any legal right to his father-in-law’s property and building?

High Court expressed that it would be difficult to hold that the defendant was a member of the family.

It was noted by the Court that the defendant’s behaviour became intolerable, due to which the plaintiff filed a suit seeking a permanent prohibitory injunction restraining the defendant from entering into the plaint schedule property and building.

High Court stated that it is a settled principle of law that even a trespasser, who is in established possession of the property, could obtain an injunction.

In the present matter, the matter would have been different if the plaintiff was the true owner of the property.

Defendant was the son-law in the present case, it is shameful for him to plead that he had been adopted as a member of the family, subsequent to the marriage with the plaintiff’s daughter.

Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, in this decision the 3-Judge Bench of the Supreme Court reiterated the principle that possession is good against all but the true owner.

Therefore,

“A person in possession of the land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.”

The rightful owner filed a suit for injunction restraining him from entering into the property. The residence of the defendant, if any, in the plaint schedule building is only permissive in nature. The defendant cannot contend that he is in legal possession of the suit property or the building.

Further, the Court opined that it was not necessary to decide the validity of the Gift Deed executed by the Church in favour of the plaintiff.

Contention that the plaintiff was a man of bad character and not on good terms with family members was rejected in view of Section 52 of the Indian Evidence Act which provides that in civil cases, a fact pertaining to the character of an individual is not relevant.

The said section lays down the principle that the character of a party as a piece of evidence cannot be used to manifest that conduct attributed to him is not probable or improbable.

 To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

Bench dismissed the appeal on finding no error in the decision of lower courts. [Davis Raphel v. Hendry Thomas, 2021 SCC OnLine Ker 3491, decided on 6-09-2021]


Advocates before the Court:

For Appellant:

Blaze K. Jose, Advocate

Deepa Narayanan, Advocate

For Respondent:

V.A. Satheesh, Advocate

V.T. Madhavanunni

Case BriefsHigh Courts

Andhra Pradesh High Court: While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major, Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Issue:

The father challenged the lower court’s decision for recovery of maintenance to the tune of Rs 22,000 for a period of 11 months on the ground that 2nd respondent, his daughter, had attained majority.

Court took note of the fact that the maintenance order passed in favour of 2nd respondent-daughter was not modified under Section 127 CrPC and she was unmarried and had no source of income.

It was argued that maintenance order would not survive as the daughter had attained the age of majority and this Court in the exercise of its inherent jurisdiction ought to set aside the order directing realization of dues payable to 2nd respondent after her attaining majority.

Crux:

Whether Magistrate was justified to order recovery of maintenance due to 2nd respondent, who was unmarried and pursuing her education, and who had had attained majority.

Supreme Court in the decision of Abhilasha v. Parkash,2020 SCC OnLine SC 736, observed that though a Family Court is entitled to grant maintenance to a major in-married girl by combining the liabilities under Section 125 CrPC and Section 20(3) of the Act of 1956, a Magistrate exercising powers under Section 125 CrPC was not authorized to do so.

Bench stated that Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 and grant monetary relief to meet expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established.

Conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act irrespective of the fact whether she is a major or minor.

In the present matter, the relation between the parties as father and daughter was admitted and they both had stayed together in a shared household.

Hence, in Court’s opinion, the decision of the Magistrate directing recovery of maintenance was not illegal on the mere ground that she turned major.

Further, the Court clarified that in Abhilasha v. Parkash,2020 SCC OnLine SC 736, the power of the magistrate to grant monetary relief under the DV Act did not fall for consideration and further the Bench added citing the Supreme Court’s decision in Rajput Ruda Meha and v. State of Gujarat, that it is settled law that a judgment is not an authority for a proposition which was neither raised nor argued.

Therefore, Court concluded by denying to interfere with the impugned order. [Menti Trinadha Venkata Ramana v. Menti Lakshmi, 2021 SCC OnLine AP 2860, decided on 9-09-2021]


Advocates before the Court:

For the Petitioner: T.V. Sridevi

For the Respondent 3: Additional Public Prosecutor

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]


Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]


Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D Dhanuka and V.G. Bisht, JJ., addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Factual Matrix 

Appellant is the married daughter of Late Navnitlal R. Shah with whom the respondent alleged to have got married after the demise of the appellant’s mother. Marriage between the appellant’s father and the respondent was solemnized before the Marriage Officer.

Appellant’s father was a successful businessman who owned various assets and properties.

Appellant alleged that the respondent was already married to someone and she concealed and suppressed the said fact deliberately from the appellant’s father and falsely portrayed herself as a divorcee but was not a divorcee at all.

The said fact of not being divorced came into light recently in front of the appellant.

Further, the appellant alleged that the respondent took undue advantage of the mental infirmities, ailments and unsoundness of mind of her father and exercised undue influence, coercion and duress with the intention of siphoning his entire properties. Respondent got executed various documents including his Will and several Gift Deeds of various valuable immovable properties and deprived the true legal heirs of their rights.

Respondent even took away the custody of the jewellery “Stridhan” of the appellant’s mother.

Appellant sought the declaration of marriage between her father and respondent to be null and void and the status of the respondent as of today continue to be the wife of the said Mansoor Hatimbhai Chherwala under Section 7(1) Explanation (b) and (d) of the Family Courts Act.

Family Court Judge held that the appellant had deemingly relinquished. Given up her portion of the claim pertaining to the declaration of the marital status of respondent and thus the bar under Order II Rule 2 of the Code shall be applicable.

Present appeal was against the impugned order.

Analysis and Decision

Family Court to provide exclusive jurisdiction

High Court stated that Family Court is intended to provide an exclusive jurisdiction of the matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure.

Bench also confirmed that the appellant had every locus to bring into question the validity of the marriage of her father with the respondent and also the respondent’s status.

Object of Order 2 Rule 2 of CPC

The object of Order 2 Rule 2 is to avoid a multiplicity of suits.

“…no one should be vexed twice for same cause of action.”

 Question to be considered:

Whether the appellant was entitled to claim relief of declaration in the previous suit(s) on the basis of the cause of action pleaded by her in the previous suits against the respondent in relation to the validity of the marriage of her father with the respondent?

Court noted that the Family Court lost sight of the fact that Original Suit No.1018 of 2015 was instituted in the year 2015 whereas the Notice of Motion No.1622 came to be filed in the year 2016 after the appellant discovered the fraud alleged to have been played by the respondent pursuant to documents dated 10th and 12th February 2016 secured by her through Right to Information Application.

Thus, there was disclosure and discovery of new facts constituting the new cause of action.

Family Court erred in holding that provisions of Order 2 Rule 2 were attracted without examining the cause of action in the earlier plaints filed by the appellant.

Family Court ought to have taken into consideration — Whether in light of Sections 7, 8 and 20 of the Act, this Court has jurisdiction to grant declaration as to the validity of the marriage between the appellant’s father and the respondent sought by the appellant?

Bench after referring to the decision Full Bench of Bombay High Court in Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, 2000 (3) Mh.L.J. 468 and Supreme Court decision in Balram Yadav v. Fulmaniyua Yadav, (2016) 13 SCC 308, reached an irresistible and inescapable conclusion, that,

“…High Court exercises its ordinary original civil jurisdiction in relation to the matters under the Act, it would be a District Court as understood therein. Resultantly, it would be denuded of its jurisdiction.”

Further respectfully differing from the decision of the Gauhati High Court in Smiti Nitikona Banerjee v. Ram Prasad Banerjee, 2018 SCC OnLine Gau 1577, wherein it was held that as per Section 7(b) of the Family Courts Act:

“…a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court.”

The above position of the Gauhati High Court was differed by this Court for the simple reason that the same was against not only the letter and spirit of Section 7 but also against the rationale behind the Object and Reasons of the Act.

Hence, the family Court’s conclusion and reasoning cannot be sustained in the above view and the said order is set aside to the extent that the petition was barred by provision of Order 2 Rule 2 of the Code.[Nayana M. Ramani v. Fizzah Navnitlal Shah,    2021 SCC OnLine Bom 385, decided on 17-03-2021]


Advocates before the Court:

Vineet B. Naik, Senior Counsel a/w. Sheroy M. Bodhanwalla i/b. M.S.Bodhanwalla and Co., Advocate for the Appellant.

Deepti Panda a/w. Kirtida Chandarana Nandini Chittal i/b. Mahernosh Humranwala, Advocate for the Respondent.

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]


Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sureshwar Thakur and Chander Bhusan Barowalia JJ., while allowing the present petition said, “Marriage neither alters the relationship between the married daughters with her parents nor creates severance of a relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Article 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth.”

 Facts

Facts of the case are briefly enumerated herein;

  1. That on 08-05-2019, Thakur Dass, father of the petitioner, who was a class IV employee in the office of District Ayurvedic Office, Kullu, died in harness.
  2. That the petitioner, her sister and mother are the survivors of Thakur Dass and there is no male member in their family.
  3. That as per the petitioner, she, her mother and sister, were dependant on late Shri Thakur Dass, and her mother and sister are unwilling to opt employment.
  4. That the petitioner, who is M.A. (Hindi) and has diploma in Computers, applied through an application for compassionate appointment, duly supported with the affidavits of her mother and sister purveying their ‘No Objection’.
  5. That the annual family income of the petitioner’s family is Rs 63000 falling well within the prescribed limit of Rs 225000, for a family of four members.
  6. That the cause of action arose on 22-06-2020 when the application of the petitioner was rejected on the premise that “there is no provision in the Policy for grant of employment assistance to the married daughter of the deceased Government employee.”
  7. That the petitioner has approached the present forum so as to declare the said policy as unconstitutional on the ground of being gender discriminatory, unjust and in contravention with the principles of equality.

Contentions

Counsel for the petitioner, Maan Singh, argues that the aforementioned clause of the policy has no rationale with the object sought to be achieved (of providing compassionate appointment). Moreover, just as a son of an employee who dies in harness, remains son throughout, likewise, a daughter remains daughter irrespective of any contingency or change in marital status. It was argued, “A married daughter cannot be discriminated merely because she is married, whereas no such rigor is applicable to a married son. Marriage alone cannot constitute a ground for discrimination and constitutionally State cannot be allowed to use this assumption of marriage, being a rationale for hostile discrimination denying benefits to a married daughter, especially in the wake of the fact that equal benefits are being extended to a son, whether married or unmarried.”

Counsel for the respondents, Hemant Vaid, J.S. Guleria and Hemanshu Mishra, argued that the petitioner is ineligible for appointment on compassionate grounds as the policy is only applicable to the dependents of the deceased Government employee and the marriage of the petitioner, in this case, disentitles her to be counted as a dependent of the deceased government employee. As per the respondents, elements of the policy of compassionate appointment are not only based on financial circumstances, but also on social circumstances such as in the present case.

 Observations

In addition to its decision, the Court cited the following cases;

In a judgment by Uttranchal High Court; Udham Singh Nagar District cooperative Bank Ltd. v. Anjula Singh, it was said, “Non-inclusion of a ‘married daughter’ in the definition of a ‘family’, under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.”

High Court of Madras in, N.Uma v. The Director of Elementary School Education, observed, “(…) artificial classification between married son and married daughter only on the basis of sex would tantamount to gender discrimination. If a married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.”

Vimla Srivastava and others 2016(1) ADJ 21 (DB), “Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.”

Reflecting upon the object of having the policy for compassionate appointment and the duty of the State to ensure welfare for all, the Court under Para 21 of the judgment said,  “The object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated.”

 Decision

While allowing the present petition and issuing necessary directions to the respondent authorities, the Court held, “After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of the deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family.”[Mamta Devi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2125, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Talwade, JJ., while addressing petition wherein the mother has complained of facing harassment through her daughter, held that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Petitioner is an ex-government employee and respondent 1 is one of the 5 daughters of the petitioner.

Petitioner states that she is mentally as well as physically tortured by her daughter and has been residing with the petitioner forcefully with her 19 year old son.

An application was also filed under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 by the petitioner before respondent 2 seeking eviction of respondent 1 from the flat.

Respondent 1 had also threatened her father on one instance wherein she  said that “if you force me to leave the house then I will lodge a police complaint against you that you are molesting me.”

Thereafter, respondent 1 kept on administering threats to her father, who was unable to do anything since he felt totally helpless. Not only the Petitioner and her husband were harassed by Sarita, but even her son (who was a minor) started dictating terms to the Petitioner and her husband, who did not retaliate under the fear that Sarita will malign their image in society.

After the demise of petitioner’s husband, respondent 1 intensified her harassment towards the petitioner. Respondent 1 had also destructed the petitioner’s cell phone so that nobody could directly contact her.

Petitioner once got a chance to talk to one of her daughter(Vaishali) who flew from Singapore to meet her and at that time petitioner gathered some courage and narrated the misdeeds that respondent 1 used to conduct on petitioner by beating her up, making her remain without clothes and used to give her food only once a day.

Later, Vaishali and petitioner filed a complaint against the respondent 1 and also got published an article about the misconduct of respondent 1.

After undergoing several tests, it was confirmed that the Petitioner had comminuted fracture and that her nerves were severely damaged around her shoulder and neck area, one nerve in the left arm was totally damaged, for which the Petitioner had to undergo various surgeries. She lived with a fractured shoulder and broken nerves for almost five months under house arrest by the Respondent 1, without even plaster or support, leave aside proper medication.

Bench on talking with petitioner gathered an impression that she seriously apprehends physical and mental harassment and consequently threat to her life at the hands of respondent 1, if she goes to reside in her own Flat without respondent 1 being evicted from the same.

Court made it extremely clear that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Bench assured the petitioner that is she lives in her own flat and face any harassment from respondent 1 or her son, she will be provided all assistance, both by the Court and police authorities.

Installation of CCTV cameras inside the flat has been directed.

Respondent 1 and her son, both have been sternly warned . Senior Inspector of local police station under who jurisdiction the flat come has been directed to give all assistance to the petitioner.

Respondent 1 and her son will not obstruct entry of any of the relatives whom petitioner wants to meet. Also respondent 1 and her son are not allowed to invite or bring any of their guests to the flat without prior permission of petitioner through her advocate. [Rajani B. Somkuwar v. Sarita Somkuwar, 2020 SCC OnLine Bom 696 , decided on 05-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing a civil writ petition ruled that a daughter is an ostensible agent of her mother and as such application filed by daughter on behalf of her mother is maintainable.

Petitioners, a mother-daughter duo, were partners in the business of husband/father which was an assessee under the Kerala Value Added Tax Act. Respondent initiated proceedings to recover arrears of tax and as a part of those proceedings it attached the husband’s share in his ancestral property. Petitioner wife who had strained marital relationship with her husband filed an execution petition for return of her property and movables from him, which was allowed by the Family Court. On obtaining sale certificate for her property, she noted that the said property had already been attached by the respondent tax authority. So she filed an application before tax authorities through her daughter to take advantage of the amnesty scheme floated by Department for the defaulting dealers but her request was rejected. Assailing the said order of rejection, petitioner filed the instant petition.

Petitioner submitted that the amnesty scheme allowed any aggrieved person to apply under it and the petitioners were aggrieved persons as they had an interest in the assessee’s estate. The husband had acted vindictively and deliberately not taken benefit of the amnesty scheme as he did not want his wife and daughter to receive the property.

Respondents submitted that it was the wife had filed matrimonial proceedings and secured a sale certificate. Therefore, her daughter could not be included within the term ‘aggrieved person’ and as such application filed by daughter before tax authorities was not maintainable.

The Court observed that petitioner duo had a common cause: driven out, both had to fend for themselves. The daughter was a dependent – the mother had fought not only to secure her interest but also to secure her daughter’s interest. Therefore, the daughter was ostensible agent of her mother, who has already secured a sale certificate. Separately, as a dependent, she also had a stake in her father’s estate. In view of the above, the petition was allowed with a direction to the tax authority to consider daughter’s application afresh. [Naseera A.P. v. State of Tax Officer,2018 SCC OnLine Ker 4924, decided on 07-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. rejected a petition filed a father against the order of Principal Judge (Family Courts) whereby he was directed to pay monthly maintenance to his daughter.

The petitioner was directed to pay a sum of Rs 11,000 as litigation expenses and Rs 10,000 as interim maintenance to his daughter every month. Aggrieved thereby, he preferred the present petition. The Court referred to Manish Aggarwal v. Seema Aggarwal2012 SCC OnLine Del 4816 wherein it was held that Section 24 to 27 of the Hindu Marriage Act, 1955 was appealable under Section 19(6) of the Family Courts Act, 1984.

It was held by the High Court that the reasons which prevailed in Manish Aggarwal for holding interim maintenance under Section 24 HMA to be appealable under Section 19(1) of the Family Courts Act equally apply to grant of interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956. Furthermore, once the legislature has prescribed a remedy of appeal, the principle that Writ Court should abstain from exercising jurisdiction when an alternative remedy is available comes into play. In light of the above, the petition was rejected. [Jayanti Prasad Gautam v. Pragya Gautam,2018 SCC OnLine Del 11535, decided on 19-09-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ., dismissed a petition claiming the family pension.

Facts of the case were that petitioner’s father was a constable and after his superannuation, he got retired in 1991. In the year 2009, the petitioner’s father expired. After he got expired his wife represented for grant of family pension which in the beginning was not granted and eventually an order withdrawing family pension was passed by AG’s Office to the Superintendent of Police. Since in 2017 wife also expired her daughter i.e. petitioner claimed family pension which was not considered. Hence, this petition was filed before the High Court.

Petitioner submitted that this petition was maintainable by virtue of amended Rule 48 of the Meghalaya Civil Services (Pension) Rules issued by Finance (Pension Cell) Department, Government of Meghalaya. According to the aforementioned rule family for the purpose of pension constitute a daughter which includes widow daughter, till the date of marriage or remarriage or till the date, she starts earning or till she turns 25 years old.

Issue before the Court was whether petitioner (daughter) can claim family pension after the death of the wife (petitioner’s mother) was found to be weakened by the fact that petitioner was otherwise not eligible to such family pension.

The High Court found that petitioner was married and above 25 years of age and by virtue of Rule 48 a married women cannot claim the family pension. Therefore, the petition was dismissed. [Prettilla M. Sangma v. State of Meghalaya,2018 SCC OnLine Megh 175, Order dated 27-09-2018]