2 August, 2011 10:01

From: http://www.barandbench.com/brief/2/1637/31-foreign-law-firms-deny-all-the-allegations-made-by-ak-balaji

Bar & Bench News Network

Aug 01, 2011

Last year in April, a Public Interest Litigation (PIL) was filed in Madras High Court by A. K. Balaji, an advocate and a member of Association of Indian Lawyers. The petition was filed against 31 foreign law firms from USA and UK, including one LPO. The Petition challenges the entry of foreign law firms into the country and sought a Writ of Mandamus directing the Government to take action against foreign law firms practicing ‘illegally’ in India either on the litigation side or in the field of non-litigation.

The Petitioner claims that these foreign law firms are allegedly violating provisions of Indian Advocates Act, 1961 (the Act) by providing legal services in India. The Petition was filed just few months after the Bombay High Court passed a landmark judgment which practically denied foreign law firms entry into India on the basis of the existing laws. The Bombay High Court in its judgment in the case of Lawyers’ Collective has held that the practice of law in India, as governed by the Act, included both litigious and non-litigious practice.

The Petitioner alleges that the foreign law firms are trying to exploit the growing Indian market. The Petition not only deals with the issue of entry of foreign law firms, but also on the modus operandi currently adopted by these firms to provide legal services in India. The Petitioner has made several allegations against these foreign law firms including violation of immigration laws, having offices and practicing law in the form of LPOs, treating practice of law as business venture, not allowing Indian lawyers to practice law without taking further set of educational courses and other tests and many more.

We have tried to analyse the response filed by the foreign law firms to the abovementioned allegations made in the Petition against these firms.

Mode of entry of foreign laws – Immigration Law violations

The Petitioner has challenged the mode of entry of the foreign lawyers into India. The Petitioner alleges that these firms have already entered India indirectly and are operating out of five-star hotels and most lawyers working at these foreign law firms visit India using tourist visas and violate various taxation and immigration laws.

The foreign law firms have denied these allegations of the Association in relation to violation of immigration laws, stating that, firstly none of the representatives of the foreign law firms have undertaken business opportunities on tourist visa in India. Secondly, none of the practitioners of the said law firm have engaged in dispute resolution within the confines of the hotels in India.

Additionally, foreign law firms have also gone ahead and made it clear that the participation in seminars and conferences does not tantamount to practice of law in India and most of the lawyers from these firms have been delegates to India with International Associations. It has also been made clear by the foreign law firms that lawyers are also frequenting India to meet old as well as prospective clients who have a global presence and who require assistance from these law firms from an international law perspective.

Amongst the 31 foreign firms listed in the Petition, Allen & Overy and Linklaters are the only two firms that have alliance-type relationship with Trilegal and Talwar Thakore & Associates respectively. Allen & Overy in its response has also categorically stated that since last three years it has with Trilegal been conducting International Finance Law course at National Law School Bangalore, which required travel of significant number of lawyers.

Foreign law firms have also clarified that marketing of relationship between foreign and Indian lawyers is commonplace in International trade and the same cannot be confused with establishment of a physical presence by foreign law firms in India. These are steps towards mutual business growth of both Indian as well as International law firms. Towards an example of mutual benefit, International law firms have also cited names of renowned Indian law firms who are now members of International legal organizations which leverages them globally.

Law Firms exist in India through LPO outfits

The Petitioner alleges that most foreign law firms exist in India through the Legal Process Outsourcing (LPO) outfits. The Petition states that most foreign law firms have their back end offices in India, which not only does their back end activities, but also provides legal services in India.

Foreign law firms in their response have denied owning, operating or having any kind of participation interest in LPO outfits in India. Specific firms have detailed their back end operations in India, which are only restricted to office billing and technology related inputs. It has also been categorically mentioned that the said back-end operations are fully compliant with the applicable Indian laws.

Clifford Chance and Linklaters are the two firms which have a back office in India. The Clifford Chance back office work is being undertaken by its wholly owned subsidiary OSC Export Services Pvt. Ltd. Linklaters is undertaking its back end office work through its indirectly wholly owned subsidiary in India named Link-Info Business Services India Pvt. Ltd. (LIBS).

None of the two are providing any legal services from the respective back end offices.

Allen & Overy in its response has also clarified that it does not own or operate an LPO in India and does not have any office in India. However, on client’s specific instructions it has engaged Integreon Managed Solutions, Inc for review of documents for disclosure purposes in litigation matters. Invoices for this work are passed on to clients as disbursements.

Law as a business as opposed to ‘Noble Profession’

The Petitioner alleges that the practice of law is treated as a noble profession in India, but the foreign law firms are treating it as a trade or business and a ‘money spinner’.

The foreign firms based in USA have stated that the firms practice law as per the rules applicable in each jurisdiction. In many jurisdictions, it is recommendatory or mandatory to render a certain proportion of services on pro bono basis. Rule 6.1 of District of Columbia Rules of Professional Conduct provides that “A lawyer should participate in serving those persons, or group of persons, who are unable to pay all or a portion of reasonable attorneys fees or who are otherwise unable to obtain counsel”.

The below table provides the amount of hours spent by foreign law firms on pro bono work.

It is interesting to see the amount of pro bono hours spent by these foreign firms and whether the same can even be compared to the pro bono work undertaken by Indian law firms.

The foreign firms in UK in their response have stated that English Solicitors are regulated by the Solicitors Regulatory Authority (the SRA). Rule 1 of the SRA’s Code of Conduct sets out the core duties of a solicitor. These apply to a solicitor whenever he or she is and he/she may be disciplined by the SRA for a breach wherever it occurs. It follows that if an English solicitor were to visit India and advise a client on foreign law, that solicitor is not unregulated and continues to pursue a noble profession as, no doubt, an Indian lawyer would be when travelling abroad.

The firms have clearly stated that it is their policy to encourage its lawyers and support staff to do valuable community work through which they can bring skill and expertise to the organizations, communities and causes that would otherwise struggle to gain access to such expertise.

Reciprocity to practice law in UK and US law firms

The Petition points out that Indian law firms and lawyers who want to practice in England have to clear several qualifying tests. Further, there is no assurance that they would obtain work permit, even after clearing all the tests. The Petition states that only lawyers and law firms from those countries that offer similar opportunity to Indian lawyers and law firms should be entitled to practice in India.

In defence to the above mentioned allegations, it has been stated on behalf of UK law firms that as a matter of English Law and Regulation, foreign lawyers are free to advise on their own system of law or on English law (except for certain defined legal activities), or any other system without any nationality requirement or need to be qualified in England. It has been emphatically mentioned that it is not necessary to re-qualify to practice law in England. The UK firms in their response have stated that the eligibility requirements have been simplified and a Bachelor’s degree will be considered for awarding point when applying for UK Tier -1 Visa. It is also possible for Indian Lawyer to enter under other categories of visas.

The firms assert that requalification is available to Indian lawyers; however, it is not necessary to qualify in order to practice law in the UK. There are currently 1,245 Indian Advocates who have requalified as English solicitors since 1995. Of this number, 622 qualified individuals (or 50 percent) have remained in the UK, 484 or 39 percent have returned to India after requalification and the remaining 139 are working in Singapore, USA, Hong Kong or elsewhere. These figures clearly show that neither QLTT nor the change in immigration requirements has prevented Indian advocates from requalifying as English solicitors, nor in using this qualification to access a wider world of legal work.

The firms stated that there has been a growing number of young Indian Lawyers who have joined various law firms in UK after graduation and either re-qualified as English lawyers or are in the process of requalifying and who then stay on to practice in England, despite all the obstacles to which Petitioner alludes to.

The response also provides that as per the new policy which came into effect on September, 2010, the Qualified Lawyers Transfer Test (QLTT) has been replaced with the Qualified Lawyers Transfer Scheme (QLTS).

The foreign firms further state that there are number of Indian Advocates and also retired judges of the Supreme Court of India and various High Courts of the State in India who come to England for arbitrations which are conducted under various International Arbitral Institutions such as the International Chambers of Commerce, London Court of International Arbitration. Additionally, several Indian lawyers visit the UK to instruct solicitor and council in Court proceedings.

US law firms too have denied the allegation and have stated that lawyers from India are not restrained from practicing Law in USA and, infact, many Indian lawyers do practice law in the USA in one or both of two different manners: (i) Lawyers qualified to practice in India may open an office for the practice in Indian Law in 30 states of the USA. In each of these jurisdictions, an Indian lawyer need only submit an application certifying qualification to practice law in India and pay a modest fee. No examination is required. (ii) Consisting with professional responsibility rules in the USA, Indian Advocates who concurrently associate with the US Licensed Lawyers on specific matter come to the USA on a temporary in and out basis to consult on a Indian Law issues without registration and without any impediment being imposed to that practice.

The foreign law firms have clearly refuted all the allegations made by the Petitioner. The firms have concluded by saying that there is no restriction on the practice of foreign law within the territory of India and that the Indian law does not in any way prohibit them from to travelling to India and advising on International law.

The matter is listed for hearing tomorrow before the Madras High Court. The matter was postponed to August 2 as the Bar Council of India (BCI) was in the process of drafting a proposal to address the issue of foreign law firms.

5 July, 2011 13:42

Ex- HC judge challenges the discriminatory property law

Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.

The family that had sent a young woman back to her parents after her husband’s death, surfaced when she died. There was a contest between her mother and the husband’s sister’s sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”

“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), adding that “women’s equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”

This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.

The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.

If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman’s horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”

Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father’s heirs, and any property she inherited from her husband or father-in-law will go to the husband’s heirs.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband’s heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts (Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father (Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).

In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities.

Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.

Justice Bhattacharjee’s criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man’s estate and the woman’s estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.

Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.

Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

17 June, 2011 06:43

2001 STPL(LE) 30443 SC

[AIR 2002 SC 215
= (2002) 1 SCC 178 = JT 2001 (9) SC 596 = (2001) 8 Scale 197 = 2001 AIR(SCW)
4874 = (2001) 8 Supreme 292 = 2001 (Supp5) SCR 290]

SUPREME COURT OF INDIA

(D. P. MOHAPATRA AND DORAISWAMY RAJU, JJ.)

MADHEGOWDA (D) BY L.RS

Appellants

VERSUS

ANKEGOWDA (D) BY LRS AND OTHERS

Respondents

Civil Appeal Nos.5652-5653 of 1998-Decided on 20 -11 -2001.(From : Karnataka)

Hindu Minority and Guardianship Act (32 of 1956), Sections. 4, 6, 8, 11, 12 – Hindu Law – Guardians And Wards – Sections 4, 6, 8, – Hindu minor – Natural guardian of a minor – Meaning and scope – Statutory prohibition of alienation of property belonging to Hindu minor – Hindu owning properties, dying leaving behind two daughters – When the defendant no. 1 being one of the two daughters, was a minor, her sister selling the share of her minor sister acting as her guardian – After attaining majority, defendant no. 1 selling her share of the property left by her deceased father to respondent – Respondent filing suit for partition of the share of his vendor and declaration of title – Trial court and first appellate court dismissing the suit holding that defendant no. 1 had no title in the property on the date when she executed the sale deed since the property had already been sold by her guardian – High Court allowing the second appeal and ordering partition of the property and delivery of possession – High Court also dismissing the review petition. On appeal, held, the elder sister of defendant no. 1 could be taken only as the ‘de facto guardian’ or more appropriately as ‘de facto manager’ and therefore, sale of minor’s share by such de facto guardian/manager was clearly in violation of section 11 and was therefore per se invalid. Even assuming that a flaw in the transfer could be ratified, defendant no. 1 after attaining majority had not ratified the invalid transfer. Hence High Court justified in setting aside the judgment of the trial court as affirmed by the first appellate court and decreeing the suit for partition and possession.

Advocate(S): Pranab Kumar Mullick, Advocate for Appellants.

JUDGEMENT

D.P. Mohapatra :- One Ninge Gowda was the original owner of the property in dispute. He died leaving two daughters namely Smt.Sakamma, respondent no.10 and Smt.Madamma, respondent no.11 herein. When Smt.Sakamma was a minor, her sister Smt.Madamma purportedly acting as her guardian, sold her share of the property left by Ninge Gowda to Madhegowda, appellant herein by a registered sale deed dated 24.4.1961. It is the case of the appellant that the share of the minor Smt.Sakamma was sold to collect funds for her marriage. The appellant was put in possession of the property and he continues in possession of the same till date.

2. Smt. Sakamma attained majority sometime in 1961-62. She sold her share of the property toAnkegowda, predecessor of respondent nos.1 to 9 herein, by the registered sale deed dated 1.7.1967. Since there was a dispute regarding possession of the property, Ankegowda initiated a proceeding under section 145 of the Criminal Procedure Code before the sub-divisional magistrate, Srirangapatna which was registered as criminal misc.7/ 67-68. In the said proceeding, the learned magistrate held that the appellant was in possession of the property on the date of the preliminary order and he would continue to remain in possession of the same till dispossessed by the competent court.

3. Thereafter Ankegowda (plaintiff) filed original suit no.69/69, in the court of the munsif, Srirangapatna seeking a declaration of title, for partition of the share of his vendor Smt.Sakamma and for delivery of possession of the same to him citing Smt.Sakamma (defendant no.1), Smt. Madamma (defendant no.2) and S. Madhegowda (defendant no.3) as parties. The learned munsif dismissed the suit, The appeal filed by Ankegowda, regular appeal no. 44/78, in the court of the civil judge, Srirangapatna proved unsuccessful. The learned civil judge concurred with the findings of the learned munsif and dismissed the appeal by his judgment dated 24.7.1979.

4. The trial court and the first appellate court dismissed the suit on recording the concurrent finding that Smt.Sakamma (defendant no.1) had no valid title in the property on 1.7.1967, the date on which she executed the registered sale deed in favour of the plaintiff, since her interest in the suit property had already been sold in favour of S.Madhegowda (defendant no.3) by the registered sale deed dated 24.4.1961 executed by her sister Smt. Madamma (defendant no.2). The courts further held that Smt.Sakamma could not have validly sold the suit property to the plaintiff without getting the sale deed dated 24.4.1961 annulled by filing a suit within three years of attaining majority. The decisions were based on the notion that the sale deed executed by Smt.Madamma in favour of Madhegowda was not void but voidable only.

5. Respondent nos.1 to 9, successors- in-interest of Ankegowda, filed regular second appeal no. 1134/79 in the High Coutt of Karnataka challenging the judgment/decree of the trial court as confirmed by the first appellate court. The High Court by its judgment rendered on, 11/01/1993 allowed the second appeal, set aside the judgment/decree of the courts below and held that the respondents 1 to 9 are entitled to half-share in the suit property, ordered for partition and delivery of possession of their share out of the same. The application filed for review of the judgment CP (FR) no.937/97 was dismissed by the order dated 8.9.1997. Hence, these appeals by the defendant.

6. The question that falls for determination in the case relates to competence of Smt. Madamma to sell the interest of her minor sister Smt. Sakamma in the property as her guardian. If the question is answered in the affirmative and it is held that Smt. Madamma was competent to alienate the share of her minor sister as her guardian, then the trial court and the first appellate court were right in holding that the transaction of sale was voidable one and Smt. Sakamma having failed to repudiate the sale within the prescribed period of three years after attaining majority, the sale in favour of the appellant stood confirmed. If, on the other hand, it is held that Smt.Madamma had no competence to alienate the share of her minor sister in the property, then the transaction was a void one which was not required to be repudiated by Smt.Sakamma by filing a suit within the prescribed period. Then the judgment of the High Court holding the sale to be void is to be confirmed.

7. The answer to the question formulated above depends on the interpretation of section 11 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the Act’) and its interaction with other relevant provisions of the Act.

8. In section 4 clause (b) the expression ‘guardian’ is defined to mean a person having the care of the person of a minor or of his property or of both his person and property, and includes :

(I) a natural guardian; (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards;

9. In clause (c) the term ‘natural guardian’ is defined to mean any of the guardians mentioned in section 6.

10. In section 6 of the Act provisions are made regarding ‘natural guardians of a Hindu minor’ in respect of the minor’s person as well as in respect of the minor’s property. The section reads as follows :

"The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are – (a) in the case of a boy or an unmarried girl – the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or (b) if he has completely arid finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation – In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother."

11. In this connection it is relevant to consider the power of a natural guardian to alienate the property of the minor, provision regarding which is made in section 8 of the Act. In sub-section (1) of section 8, it is declared .that the natural guardian of a Hindu minor has power, subject to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate; but the guardian in no case can bind the minor by a personal covenant.

12. In sub-section (2) of section 8 it is laid down that the natural guardian shall not, without the previous permission of the court – (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

13. In sub-section (3) in which the consequences of contravention of sub-section (1) or sub-section (2) are provided it is laid down that "any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or subsection (2), is voidable at the instance of the minor or any person claiming under him".

14. In sub-section (4) of section 8, a provision is made that "No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor".

15. In sub-section (5) of section 8, it is provided that "the Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under subsection (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act". Section 11 of the Act reads as follows :

"De facto guardian not to deal with minor’s property – After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor."

This section brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor’s estate by enacting in express terms that after the commencement of the Act, no person has the right or authority to do any act as a de facto guardian of such minor. Although the expression ‘de facto guardian’ is often used in judgments, there is in law nothing like a de facto guardian. The statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the court. In law, a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as ‘de facto manager’. Before enforcement of the Act some confusion prevailed over the powers of de facto guardian or manager for alienating the property of his/ her ward. It was held by the Privy Council in Hunooman Persad Pandey’s case, 6 MIA 393, that a de facto guardian had the same power of alienating the property of his ward as a natural guardian. Section 11 has done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property. Section 12 of the Act reads as follows :

"Guardian not to be appointed for minor’s undivided interest in joint family property- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."

16. From the statutory provisions noted above, it is clear that with the avowed object of saving the minor’s estate being mis-appropriated or squandered by any person, by a relation or a family friend claiming to be a well-wisher of the minor, section 11 was enacted to prohibit any such person from alienating the property of the minor. Even a natural guardian is required to seek permission of the court before alienating any part of the estate of the minor and the court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor. So far as de facto guardian or cte facto manager is concerned, ‘the statute has in no uncertain terms prohibited any transfer of any part of minor’s estate by such a person. In view of the clear statutory mandate, there is little scope for doubt that any transfer in violation of the prohibition incorporated in section 11 of the Act is ab initio void.

17. The federal court in the case of Kondamudi Sriramulu v. Myneni Pundarikakshayya etc. [AIR
(36) 1949 FC 218], explaining the phrase ‘de facto guardian’ used in Hanooman Persad Pandey’s case (supra), made the following observations :

"Before concluding my observations about the scope of the decision in Hanuooman persad Pandey’s case, 6 M.I.A. 393: (18 W.R.81 P.C.), I would like to make a few observations about the phrase "de facto guardian". In my opinion, it is a loose phraseology for the expression "de facto manager"

employed in Hanooman persad Pandey’s case, 6 M.I.A. 393: (18 W.R.81 P.C.); their Lordships in different parts of the judgment used the words, guardian, curator and de facto manager. This phrase is certainly not known to any text of Hindu law, but it aptly describes the relations and friends who are interested in the minor and who for love and affection to him assume superintendence over his estate. A father may not necessarily be the guardian of an illegitimate child, but his de facto guardianship cannot be repudiated. Such is the case of the natural father of an adopted son, of Ganga Prasad v. Hara Kanta Chowdhury, 7 KL.C. 234:(15 C.W.N.558). A person who is not attached to the minor by ties of affection or other reasons of affinity and remains in-charge of his estate is in truth a mere intermeddler with his estate. In order to come within the scope of the rule in Hanooman persad Pandey’s case, 6 M.I.A. 393: (18 W.R.81 P.C.), it is necessary that there is course of conduct in the capacity of a manager."

18. The federal court took the view that

"In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression ‘de facto guardian’ has been used in text books and some judgments of courts. That is the correct description of a person generally managing the estate of a minor without having any legal title to do so."

19. This Court in the case of Sri Narayan Bal & Ors. v. Sridhar Sutar & Ors.1 [(1996) 8 SCC 54], construing the provisions of applicability of section 8 to a case of transfer of the undivided interest of a Hindu minor in a joint family property held that the joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property and that section 8 in view of the express terms of sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. In that connection, this Court made the following observations :

"……Each provision, and in particular section 8, cannot be viewed in isolation. If read together the intent of the Legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under section 8, a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided under sections 6 and 12 of the Act, the previous permission of the court under section 8 for disposing of the undivided interest of the minor in the joint family property is not required……."

20. This Court, in the case of Ganayya & Anr. v. Radhabai & Ors.1 [(1997) 11 SCC 332], considering the question of applicability of the provisions of section 11 of the Act, held :"A bare reading of section 11 goes to show that it explicitly provides that after the commencement of the said Act no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." In that case the case of the appellants was that their father, who was blind from birth, died on 16.2.1957 leaving behind him the appellants who were minors. The appellants’ uncle Nagayya was cultivating the land in question as manager even during the life time of their father as he was blind and the appellants were minors. One Balayya, husband of appellants’ mother’s sister, leased out the lands in dispute to the said Nagayya, the.real uncle of the appellants’. On the basis of that lease made by the de facto guardian of the appellants’ Nagayya, the uncle of the appellants’, made the application for conferral of ownership rights of the land in dispute and for determination of purchase price of the said land under section 48 read with sections 46 and 49-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The addl. tahsildar allowed the application which was upheld by the sub-divisional officer in appeal and the revenue tribunal in revision. The High Court also dismissed the appellants’ application filed under Article 227 of the Constitution. The High Court held that the provisions of section 11 of the Act were not attracted to the facts of the case and, therefore, dismissed the petition. This Court, allowing the appeal, held that the High Court fell into a patent error in taking the view that section 11 was not attracted to the facts of the case.

21. A division bench of the Patna High Court in the case of Nathuni Mishra & Ors. v. Mahesh Misra & Ors. [AIR 1963 Patna 146 (V 50 C 42)], took the view that section 11 does not deal with the disposal of the undivided interest of a minor in a joint Hindu family governed by the Mitakshara School of Law. The Court further held that the said section cannot be pleaded as a bar for disposal of joint family property by the Manager or the Karta of the family for legal necessity.

22. A division bench of the Madras High Court in the case of Dhanasekaran v. Manoranjithammal & Ors. [AIR 1992 Madras 214], construing section 11 of the Act, held, inter alia, that the property of a Hindu minor referred to in section 11 will include all his properties, including his undivided interest in the joint family property and consequently that the sale by the de facto guardian of the minor’s interest in the joint family property was void ab initio. The division bench approved the decision of the single Judge in this regard. However, the division bench did not agree with the view taken by the single judge that the sale by a de facto guardian of the minor’s interest in the joint family is void and held "section 11 renders the sale voidable only".

23. We have carefully considered the principles laid down in the aforementioned decisions so far as relevant for the purpose of adjudication of the issue arising in the present case. It is to be kept in mind that this is not a case of alienation of minor’s interest in a ‘joint family property’. As noted earlier, Ninge Gowda died leaving his two daughters, namely Smt.Sakamma and Smt.Madamma. It is not the case of any of the parties that the suit property was a ‘joint family property’ in the hands of Ninge Gowda or that the alienation by Smt.Madamma, who is the sister of the minor, was a transfer of the minor’s interest in the ‘joint family property’. Therefore, the question whether the provision in section 11 is applicable in the case of transfer of minor’s interest in a ‘joint family’ does not arise for consideration here. Section 11 includes all types of properties of a minor. No exception is provided in the section. Undoubtedly Smt.Madamma, sister of the minor, is not a ‘guardian’ as defined in section 4(b) of the Act. Therefore, she can only be taken to be a ‘de facto guardian’ or more appropriately ‘de facto manager’. To a transfer in such a case section 11 of the Act squarely applies. Therefore, there.is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the ‘de facto guardian’/'manager’.

24. In the case in hand, there is no finding recorded by the trial court or the first appellate court that Smt.Sakamma, the minor, after attaining majority, had ratified the invalid transfer, even assuming that the flaw in the transfer could be cured by ratification. On the facts of the case, the High Court was justified in setting aside the judgment of the trial court which was confirmed by the first appellate court and was right in decreeing the suit for partition and separate possession..

25. Thus, these appeals, being devoid of merit, are dismissed. However, in the circumstances of the case, there will be no order as to costs.

15 June, 2011 13:35

Frequently Asked Questions (FAQs)

What are all the important documents one should check before buying any property? TIPS-LOAN Equal Monthly Installment (EMI) Fixed /Floating rate Choosing between fixed and floating loans

What are all the important documents one should check before buying any property?If you want to purchase a property, you have to look at the approved layout plan, approved building plan, ownership documents, carryout search, etc In whose name are the stamps required to be purchased? The stamps are required to be purchased in the name of any one of the executors to the Instrument. Which are the instruments that attract the payment of Stamp Duty? The instruments like agreement to Sell, Conveyance Deed, Exchange of property, Gift Deed, Partition Deed, Power of attorney, settlement and Deed and transfer of lease attract Stamp Duty on market value of the property. Who is the appropriate authority for knowing the market value of the property? The Sub-Registrar of the area, in whose jurisdiction the property is located, is the appropriate authority for knowing the market value of the property. What are the risks associated in buying a flat on Power Of attorney (POa) basis? Purchasing a flat on a POa basis is not permitted under the law of the land. Is a POa revocable? Yes, a POa can be either revocable or irrevocable, depending on what sort of a POa one has made. What exactly do we mean by a Free Hold flat? What are the advantages and disadvantages, if any? Freehold property (plot or a flat) is one where there is a whole and sole owner(s), ownership is full and unconditional (within the provisions of the laws of the land) and there is no lesser / lessee involved. What exactly do we mean by a Free Hold flat? What are the advantages and disadvantages, if any? Freehold property (plot or a flat) is one where there is a whole and sole owner(s), ownership is full and unconditional (within the provisions of the laws of the land) and there is no lesser / lessee involved. How to verify the authenticity of the various documents submitted by the seller of the house, particularly with regard to the possibility that the house has not been sold earlier to a third party ? Regarding authenticity of documents, again, you have to take the help of an advocate to verify.The documents can also be verified from the registrar/sub registrar office of that area. A flat in a Co-op Housing Society is to be gifted. What are the legal formalities? What about stamp duty? Gift of an immovable property is considered as a ‘transfer’ under the provisions of the TOP act and you have to have the transaction registered through a Gift Deed and pay stamp duty as per provisions of the relevant stamp act depending in which state the property is situated. Upon buying a flat from a builder in a building under construction, what are the permissions and papers that one should check with the builder, so as to ascertain the genuinity of the builder? When you are buying a flat from a builder in a building under construction, you have to check the following: 1. approved plan of the building along with the number of floors. 2. Ensure that the floor that you are buying is approved. 3. Check if the land on which the builder is building is his or he has undertaken an agreement with a landlord. If so, check the title of the land ownership with the help of an advocate. 4. Check the building byelaws as applicable in that area and ensure that the builder is building without any violation of front setback, side setbacks, height, etc. 5. Check specifications given in the agreement to sell of the sale brochure. Is he providing the same actually on the ground or not? 6. Check the reputation of the builder. 7. Ensure that urban land ceiling NOC (if applicable) has been obtained or not. 8. NOC from water and electricity authorities also have to be obtained. 9. NOC from lift authorities. What is the difference between built up areas, super built up area, and carpet area? Carept area: This is the area of the apartment/building which does not include the area of the walls. Built up area: This includes the area of the walls also. Super Built up area/Super area: This includes the built up area along with the area under common spaces such as the lobby, lifts, stairs, etc. This term is therefore only applicable in the case of multi-dwelling units. How does one determine the market rent? There is no prescribed manner but it can be easily found out by approaching such people as the brokers, registration authority, and appropriate authorities etc. How many months rent can the landlord take as deposit? Threemonths. How much housing loan can one get? Housing loan will be sanctioned depending upon your repayment capacity and according to your income. Your spouse’s income can be included, if you want to increase the amount of your loan. The maximum loan that can be sanctioned varies with housing finance companies and ranges from Rs.10 lakh to Rs.1 crore. What are the tax benefits that are available if one avails of housing loan? Tax benefits are available on both the principal and interest components of the loan as per the income tax act. The upper limit of the amount of deduction of interest repayment allowed from your gross total income is now Rs. 75,000 p.a.. Besides, Sec. 88 offers you tax benefits for principal repayments. The principal repayment amount included in the overall limit of Rs 60,000 offered by this section is Rs 10,000. What is a fixed rate home loan? Fixed rate home loan, is a loan where the interest rate is constant over the entire tenure of the loan tenure . What is a floating interest rate? Floating interest rate loan is a loan where the interest rate payable is linked to the market rate like the bank lending rate. as the bank rate varies, the interest rate payable by you will also rise and fall. Hence you will have to bear the risk of interest rate fluctuations; the floating interest rates offered are slightly lower than the fixed interest rates. Tax Is it necessary to obtain any permission, from the Income Tax authorities if I want to purchase any immovable property? There is restriction on transfer of immovable property under Section 269UC of the Income Tax act. Does the Indian Income Tax act offers any special incentive for purchase of residential property by obtaining finance either from banks or other financial institutions? Under Section 88 of the income tax you can claim benefit for the principle repayment, interest on loan is deductible u/s 24 from income from House Property. Whether the benefits attached to a residential property are also available to a commercial property? No such benefits are not available for commercial Properties. What are the formalities specified under the Indian Income Tax Law, if any, that one has to complete before or after selling any house property, commercial or residential ? You have to obtain Permission u/s 230a of the Income Tax act if the value of the property to be sold is more than 50 lakh.

1. What is meant by leasehold and freehold properties?
Leasehold Property is property leased to a lessee for a stipulated period. The Lessee pays lease premium and annual lease amount as fixed by the Lessor. The land ownership rights remain with the Lessor and a prior sale-permission is normally required if you plan to transfer the property.

The owner of Freehold Property has good title over the property and he can sell the property to anyone at any time. Record of ownership of the freehold property can be ascertained from the office of the sub-registrar. It can be transferred by registration of the sale deed.

2. What are the benefits of getting a leasehold property converted to a freehold property?
a) The person can become a full- fledged owner by getting the sale deed of the property after getting it registered.
b) The property would have better market value
c) The property can be sold, mortgaged or kept as an asset for security in future.

3. How to verify the authenticity of the various documents submitted by the seller of the house, particularly with regard to the possibility that the house has not been sold earlier to a third party ?
Regarding authenticity of documents, you have to take the help of an advocate to verify.

4. A flat in a Co-op Housing Society is to be gifted. What are the legal formalities? What about stamp duty?
Gift of an immovable property is considered as a ‘transfer’ under the provisions of the TOP Act and you have to have the transaction registered through a Gift Deed and pay stamp duty as per provisions of the relevant stamp act depending in which state the property is located.

5. What is Stamp Duty? What are the benefits of paying Stamp Duty?
Stamp Duty is a tax, similar to sales tax and income tax collected by the government, and must be paid in full and on time. A stamp duty paid instrument/document is considered a proper and legal instrument/document. It gets evidentiary value and is admitted.

6. Who is liable to pay Stamp Duty-the buyer or the seller?
The liability of paying stamp duty is that of the buyer unless there is an agreement to the contrary.

7. In whose name are the stamps required to be purchased?
The stamps are required to be purchased in the name of any one of the executors to the Instrument

8. What is meant by the market value of the property and is Stamp Duty payable on the market value of the property or on consideration as stated in the agreement?
Market value means the price at which a property could be bought in the open market on the date of execution of such an instrument. The Stamp Duty is payable on the agreement value of the property or the market value, which ever is higher.

9. Which are the instruments that attract the payment of Stamp Duty?
The instruments like Agreement to Sell, Conveyance Deed, Exchange of property, Gift Deed, Partition Deed, Power of Attorney, settlement and Deed and Transfer of lease attract Stamp Duty on market value of the property.

10. Who is the appropriate authority for knowing the market value of the property?
The Sub-Registrar of the area, in whose jurisdiction the property is located, is the appropriate authority for knowing the market value of the property.

11. What are the risks associated in buying a flat on Power Of Attorney (POA) basis?
Purchasing a flat on a POA basis is not permitted under the law of the land.

12. Is a POA revocable?
Yes, a POA can be either revocable or irrevocable, depending on what sort of a POA one has made.

13. Why is registration necessary?
Registration acts as a proof that a transaction has taken place. The registration of a document serves as a notice of the transaction to the persons affected by the transaction. It also serves as an implied notice to any person subsequently acquiring interest in the property, covered by the registered document.

When a document, which is to be compulsorily registered, is not registered, it fails to confer any title given by the document. The real purpose of registration is to ensure that every person dealing with property, for which compulsory registration is required, can confidently rely on the statement contained in the register as being a full and complete account of all transactions by which the title may be affected.

14. What constitutes completion of the sale?
The transfer of a flat is completed when you have a sale deed/ agreement for sale coupled with actual custody. Generally, in all cases the entire amount is paid simultaneously with the handing over of physical ownership and signing of the transfer documents.

15. Is it worth investing in property in India? What are the returns?
It is always worth investing in property in India, as this investment produces assets which give capital appreciation of 20-40% each year and a net yield after tax of 10-15% per annum.

In comparison to other opportunities for investment in stock markets, bond markets, bank/saving deposits/instruments, gold and precious metals, real estate investments provide:

a) Highest returns
b) Low volatility
c) Lower liquidity and
d) Lowest risk.

16. Which properties are worth investing in?
Investments can be made in land and built-up residential, commercial (office /IT parks) and retail properties for shopping malls and markets.

17. How can I do it?
You need information on opportunities for real estate investments either through direct or indirect sources. These provide information on investment opportunities including invitations for investment opportunities from real estate developers on their properties, brokers or real estate agents in India as well as through a real estate portal.

18. It is a general feeling that people involved in property dealing are unscrupulous. How can safety be ensured?
The real estate marketing India has matured, and definitely more professional than it was a few years ago. There are many established real estate developers operating across the country not only in 6 mega cities, 29 metro cities but also in many tier 2 cities. Do some research on them before you finalise your purchase. Good market information on standing and credibility of builders and developers would be a useful tool. In addition, the rating of developers and projects done by CRISIL and ICRA can also be used as guides.

Recently, in many cases, the complaints against unscrupulous builders for non-professional approach to product delivery and services and cost issues have been considered by consumer courts both at the state and national levels. This has helped in strengthening the healthy growth of the real estate segment.

19. I would like to invest for 7 years.
There are three categories of investments – short, medium and long term.
You appear to be a medium-term investor and seven-year time period is a reasonably good term for property values to more than double in value. This can be seen of any property appreciation in the last decade in many cities and also cutting across low, middle and higher income housing and other commercial properties.

20. What type of property would appreciate more – residential plots, or flats?
This depends. The appreciation in plots cannot be expected to be at the same rate at which built properties appreciate. Unless purchase of the plots is in an environment where the construction boom on the plots in the vicinity is also taking place at a faster pace. If you have long-term investment plans investment in plots will always fetch you positive results. However, for short and medium term investments, residential (individual housing or flats) is bound to fetch yields of about 20% annually

21. Which documents are to be verified before purchase of a flat?
Before you purchase a flat, you have to have a title and document search conducted by a competent advocate. You cannot do it yourself. You have to use the services of a competent advocate. It is a professional job to be done with professional assistance.

22. What is the difference between built-up area, super built-up area, and carpet area?
Carpet Area: This is the area of the apartment/building which does not include the area of the walls.
Built up Area: This includes the area of the walls also.
Super Built up Area: This includes the built up area along with the area under common spaces such as the lobby, lifts, stairs, etc. This term is therefore only applicable in the case of multi-dwelling units.

23. What are all the important documents one should check before buying any property?
If you want to purchase a property, you have to look at the approved layout plan, approved building plan, ownership documents, carryout search, etc. Contact an advocate before you purchase a property so that he can advise you.

24. Upon buying a flat from a builder in a building under construction, what are the permissions and papers that one should check with the builder, so as to ascertain the authenticity of the builder?

When you are buying a flat from a builder in a building under construction, you have to check the following:

a) Approved plan of the building along with the number of floors.
b) Ensure that the floor that you are buying is approved.
c) Check if the land on which the builder is building is his or he has undertaken an agreement with a landlord. If so, check the title of the land ownership with the help of an advocate.
d) Check the building byelaws as applicable in that area and ensure that the builder is building without any violation of front setback, side setbacks, height, etc.
e) Check specifications given in the agreement to sell of the sale brochure. Is he providing the same actually on the ground or not?
f) Check the reputation of the builder.
g) Ensure that urban land ceiling NOC (if applicable) has been obtained or not.
h) NOC from water and electricity authorities also have to be obtained.
i) NOC from lift authorities.

CASE LAW ON OFFENCE REGARDING POWER OF ATTORNEY

Sushil Kumar Sharma vs State on 26 August, 1998

Sushil And Ors vs State Of U.P on 8 November, 1994

Delhi High Court

Equivalent citations: 1998 VIIAD Delhi 686, 75 (1998) DLT 195

Bench: J Goel

Sushil Kumar Sharma vs State on 26/8/1998

JUDGMENT

J.B. Goel, J.

1. This is an application for anticipatory bail filed by one Sushil Kumar Sharma in FIR No. 115/98 registered at Police Station Dabri under Sections 420/467/468/471/120-B, IPC.

2. Facts giving rise to the case are that Dr. P.N. Srivastava and his wife Dr. Maya Srivastava are NRIs and employed at UAE since March, 1992. Dr. P.N. Srivastava lodged an FIR on 3.2.1998 alleging that he and his wife were owners of House No. RZ-64-65, Vaishali, Dabri, Delhi and while living abroad, he had allowed his brother-in-law Sanjay Srivastava and his wife Kalpana Srivastava to live in a part of the house as care-taker during their absence without paying any rent. During their vacations every year they used to visit India and stayed in the said house. They are also owners of Plot No. A-2/19, Qutab Enclave, Gurgaon which they had purchased from DLF. They had come to India on 20.1.1998 and when he went to DLF to take possession on 3.2.1998 he was told there that the said plot of land had been sold by Kundan Srivastva on the basis of their registered Power of Attorney dated 11.8.1995 in favour of (i) Sushil Sharma, (ii) Smt. Tripta Sharma, and (iii) Ram Saran Dass.

3. He has also lodged another report that on 3.2.1998 when he returned to house from market he found that Sanjay Srivastava had committed theft in his house and had stolen the original documents of title pertaining to the said plot and also other articles including their passports by breaking open of the lock of the almirah.

4. He has alleged that Kundan Srivastava in collusion with his brother Chandan Srivastava, his brother-in-law Sanjay Kumar Srivastava and his sister Kalpana Srivastava; and others had forged documents of sale of his property; they had not executed the said Power of Attorney dated 11.8.1995 and they were even not present in India on that day and it was forged one. Kundan Srivastava, Chandan Srivastava and Sanjay Srivastava have been arrested. The petitioner and other persons are suspected to have conspired in committing forgery and fraud. The investigation is in progress. The present petitioner has not been arrested and has sought anticipatory bail.

5. Investigations are in progress which show that the complainant and his wife are the owners of property bearing No. RZ-64-65, Vaishali, Dabri and they are also owners of property No. A-2/19, Qutab Enclave, Gurgaon. They are NRIs and during their stay abroad they had allowed Kundan Srivastava, brother-in-law of the complainant to live in the said house. The Power of Attorney dated 11.8.1995 and also the endorsement of its registration have been forged and fabricated. They were not in India on 11.8.1995. On the basis of the said Power of Attorney and acting as Attorney of Mrs. and Dr. P.N. Srivastava, Kundan Srivastava has executed a sale deed dated 27.6.1996 in favour of (i) Sushil Kumar Sharma (the present petitioner); (ii) Mrs. Tripta Sharma, and (iii) Ram Saran Dass (parents of Sushil Kumar Sharma) for an apparent consideration of Rs. 13.2 lakhs. The sale consideration is shown to have been paid as under:

(1) Rs. 4,40,000/- Vide two cheques No.0017991 and 0017992 dated 15.7.96 and 20.7.96 drawn on Gurgaon Gramin Bank, Gurgaon as already received.

(2) Rs. 4,40,000/- Vide cheque Nos.662693 and 662694 dated 15.7.96 drawn on New Bank of India, Gurgaon, already received.

(3) Rs. 2,00,000/- Vide cheque No.409615 dated 5.7.1996 drawn on Scota Bank, The Bank of Nova Scotia, New Delhi already received.

(4) Rs. 2,40,000/- In cash already received.

6. These three vendees have further sold this plot of land by means of three separate sale deeds, in respect of 1/3rd share each on 15.4.1997 to one Mr. Sumant Kakkar for an apparent consideration of Rs. 8 lakhs each (i.e. in all Rs. 24 lakhs) purporting to have been paid by the latter as under:

Vendor Payment Mode

1. Sushil Rs. 5,00,000 Cheque No. 739423 Kumar dated 21.1.97 drawn on Sharma Indian Overseas Bank,

Pusa Road, New Delhi.

Rs. 3,00,000 Bank Draft No. 784434 dated

11.4.97 drawn on Indian

Overseas Bank, Pusa Road, New

Delhi.

2. Sushil Rs. 5,00,000 Cheque No.739423 dated 21.1.97 Sharma drawn on Indian Overseas Bank, Pusa Road, New Delhi.

Rs. 3,00,000 Bank Draft No. 366018 dated

11.4.97 drawn on Indian

Overseas Bank, Gurgaon

3. Ram Saran Rs. 5,00,000 Cheque No. 739423 dated Dass 21.1.97 drawn on Indian Overseas Bank,

Pusa Road, New Delhi.

Rs. 3,00,000 Bank Draft No. 366017 dated

11.4.1997 drawn Indian

Overseas Bank, Gurgaon

The investigations have further revealed that the cheques issued towards consideration of sale deed dated 27.6.1996 had not been encashed when the sale deed was executed and these were encashed later on as under:

Cheque No. Date of Encashment

0017991 24.1.1997

0017992 24.1.1997

662693 14.1.1997

662394 14.1.1997

409615 4.2.1997

(dated 25.8.96 and not 15.7.97)

An account in the name of Kundan Srivastava was opened on 13.1.1997 on the introduction of Ram Saran Dass; the two cheques No. 662693 and 662694 were credited in that account on 14.1.1997; and the other cheques were encashed later on, apparently after part sale consideration had been received from Sumant Kakkar.

7. The main argument of the learned Counsel for the petitioner is that the petitioner is a bona fide purchaser of the said land by means of sale deed executed in his favour on 27.6.1996 for consideration by a duly constituted Attorney of the owner and the petitioner had no reason to doubt the genuineness of the duly registered Power of Attorney dated 11.8.1995 in favour of Kundan Srivastava who had executed the sale deed as Attorney; he has joined investigation and prima facie there is no reason to doubt his bona fides and in the circumstances the petitioner is entitled to anticipatory bail.

8. Learned Counsel for the State has opposed it. She has contended that the petitioner is not a bona fide purchaser. He is a co-conspirator in the conspiracy hatched by a number of persons, some of whom are absconding, the General Power of Attorney was fabricated; thereafter a bogus sale deed was executed in favour of the petitioner and his parents on 27.6.1996 without making any payments; and again they have executed another sale deed dated 15.4.1997 to dupe the subsequent purchaser Mr. Sumant Kakkar from whom a consideration of Rs. 24 lakhs appears to have been taken fraudulently; original documents of title were not given to the petitioner and his co-vendees, they had not verified that the General Power of Attorney dated 11.8.1995 was not duly registered in the office of the Sub-Registrar concerned; obviously they had knowledge that it was a fabricated document; in fact the investigations so far made have revealed that the petitioner is a party to the forgery committed in fabricating this Power of Attorney and in conveying the property on forged documents. She has further pointed out that the petitioner has been absconding and avoiding joining investigation inspite of several notices sent by the IO and also directions given by this Court on several dates. In the circumstances, the grant of anticipatory bail would be wholly unjustified and will prejudice the investigation and amount to interference in the proper investigation of the case.

9. The petitioner’s similar application before the Sessions Court was dismissed on 25.4.1998.

10. He approached this Court and on 6.5.1998 an ex parte interim anticipatory bail till the next date was granted. It was continued on 28.5.1998 and 14.7.1998. On 14.7.1998 an objection had been taken by the learned Counsel for the State that the petitioner had not appeared before the IO on 18.5.1998, 3.6.1998 and 3.7.1998 and 4.7.1998 inspite of notices sent to him. It was submitted on behalf of the petitioner that he had gone for Mansarover Yatra on 2nd June,1998 and returned on 7th July, 1998. No material to this effect has been placed on record nor he had informed this Court or the IO. No explanation has also been given for not appearing on 18.5.1998. On 14.7.1998 I directed the petitioner to appear before the IO on 15.7.1998 and also to appear if required further. It was specifically mentioned that if he fails to so appear his interim bail shall be deemed to be cancelled. He did not so appear and on the other hand on 23.7.1998 filed an application (Crl. M. 4268/98) with an explanation that he suddenly in the night of 14.7.1998 got acute pain and was rushed to the Civil Hospital from where he was shifted to Kalyani Hospital, Mehrauli Road, Gurgaon for treatment and was discharged from that hospital on 16.7.1998 and so could not appear before the IO on 15.7.1998. There is no explanation as to why he did not appear before the IO after his discharge from the hospital. The petitioner again on July 24,1998 was directed to appear before the IO on 28th July, 1998 at 2.00 p.m. He again did not appear and there is no explanation available for not doing so. In the circumstances there are reasons to believe that he had been evading to join the investigation.

11. The petitioner claims to be bona fide purchaser. This is seriously contested inter alia on the ground that, (1) the petitioner and his two co-vendees were not given the original documents of title of the property at the time of sale deed dated 27.6.1996; (2) he did not verify the genuineness of the General Power of Attorney used for effecting the sale in his favour by Kundan Srivastava; (3) this was a fabricated Power of Attorney with false endorsement of its registration under Registration Act; (4) False declaration has been made in the sale deed that sale consideration had already been received/paid; (5) the 5 cheques of Rs. 2.20 lakhs each and one of Rs. 2 lakhs were encashed after over six months, two on 14.1.1997, two on 24.1.1997 and one on 5.2.1997 out of the part payments obtained from the subsequent vendor; (6) the petitioner and his two co-vendors who are his parents apparently had no funds on 27.6.1996 to finance this purchase.

12. All these circumstances need due investigation and the petitioner has evaded the same.

13. It is well settled that Section 438 of the Code is not meant to assist an accused person to avoid due process of law. In exercise of this power the Courts would not obstruct and hamper the search for truth by interfering in investigation at every stage to further interest of anti-social elements.

14. In V. Nandanan Vs. DIG of Police (Crime), Hyderabad and Anr., 1986 Crl.L.J. page 1052, Kerala High Court held as under:

“Anticipatory bail is not to be granted as a matter of course in all cases where the applicant has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. Grant or refusal of such bail must depend upon variety of circumstances. The power u/Sec. 438 has to be exercised sparingly and in exceptional cases using the discretion on the facts of each case. It should not be allowed to circumvent the normal procedure of arrest and investigation or to prejudice the investigation. In exercising the judicial discretion in granting anticipatory bail the Court should not be unminded of the difficulties likely to be faced by the Investigating Agency and also public interest likely to be affected thereby.”

15. Considering the nature and the circumstances, the grant of benefit of anticipatory bail will not be proper and justified. In my view, this application is a misuse of the process of the Court adopted by the petitioner. He has evaded to join the investigation inspite of directions given by this Court and has thereby delayed the investigation.

16. This application is accordingly dismissed with costs. Costs Rs.10,000/-. The, same shall be deposited within one week. If this amount is not paid he will be proceeded in accordance with law.

15 June, 2011 13:32

FAQ ON PROPERTY BUYING AND SELLING

All Your Frequently Asked Legal Property Questions Answered!

Q 1. How ownership of immovable property is acquired by a person?
Q 2. Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?
Q 3 . Which are the documents requires to be compulsorily registered?
Q 4 . How to effect partition of .property?
Q 5. When there are two or more heirs, can one or two be made full owners by others taking money in lieu of their share?
Q 6. What is a will?
Q 7 . Who can execute a will?
Q 8. Is it compulsory to register a will?
Q 9 . Where can the will be registered?
Q 10. Is there any time limit to register a will?
Q 11. Can a will be cancelled?
Q 12. Can a registered will be rectified or changed?
Q 13. Can a will be registered even after death of testator?
Q 14. What is the Stamp duty and Registration fee to register a will?
Q 15 . Is the certified copy of a registered will available to any body?
Q 16 . How to keep contents of a will confidential?
Q 17. What is the procedure to obtain the sealed cover containing a will after the death of the depositor?
Q 18 . What is the procedure for change of khata of the properties obtained through will?
Q 19. What are the duties and liabilities of buyers and sellers while purchasing a property?
Q 20 . What are the transactions opposed to public policy?
Q 21. Is it necessary to obtain permission for transfer of agricultural land granted under Land Grant Rules or granted occupancy right under Land Reforms Act even after lapse of condition for transfer?
Q 22 . What are other restrictions to purchase agricultural land?
Q 23. How to get transfer of immovable property?
Q 24 . What is the purpose of Registration?
Q 25 . What are the effects of non-registration?
Q 26. Is there time limit to present a document for registration after it is executed (signed)?
Q 27. What is the day today timing for acceptance of deeds for registration in Sub Registry offices?
Q28. Can the document presented for registration be withdrawn?
Q 29 . Who should be present at the time of registration?
Q 30. What is the course, if executing party refuses to appear in Registry Office to admit execution?
Q 31. Who can sign as witness to a document?
Q 32. What is meant by Identifying witness of person presenting/executing a document?
Q 33 . Who is authorise to write a deed?
Q 34 . Is it necessary to register immovable property by Government as inam or granted on darkhast?
Q 35. Are there any kind of documents registered without personal appearances of the parties for registration?
Q 36. Is it necessary to register deed relating to transfer or assignment of decree relating to immovable property?
Q 37. Explain the registration of adoption deed?
Q 38. Explain the Power of Attorney?
Q 39. Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?
Q 40. Who can execute Power of Attorney?
Q 41. When would a General Power of Attorney gets cancelled?
Q 42 . What does irrevocable Power of attorney mean?
Q 43. What is the meaning of a Special Power of Attorney?
Q 44 . Is it compulsory to register power of attorney attested in India by Magistrate or notary?
Q 45 . Is it compulsory to register General Power of Attorney executed by persons residing out of India and attested by officers of Consulate office of India in that country?
Q 46. Is it compulsory to get a Power of Attorney attested by a Sub Registrar if it has already been attested by Magistrate or Notary, under which documents are signed by the agent?
Q 47. What is meant by Encumbrance Certificate?
Q 48. What is meant by a Nil Encumbrance Certificate?
Q 49 . What is the fee for Encumbrance Certificate?
Q 50 . How to obtain Certified Copy of registered document?
Q 51 . Where can I register my immovable property ?

Q 1. How ownership of immovable property is acquired by a person?
Ans. A person may acquire immovable property in any of the following way
(i) By inheritance of ancestral property.
(ii) Through will.
(iii) Acquisition by oneself such as purchase etc.
(iv) Through gift, trust, settlement deeds.
(v) Grant, sanad / Inam by the Government
Through decree of Court.
There are two ways of acquisition:
1.By act of parties.
Example: Purchase, gift etc.
2. By operation of law
Example: Inheritance, decree of Court etc. (for details please see Transfer of Property Act, 1882 (Central Act))

Q 2. Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance?
Ans. Not necessary. After the death of owner of a property his heirs, such as wife, children i.e. male and female, married or unmarried may get the Khata transferred on production of death certificate of the owner with details of property held by him to the following officers.
If property is an agricultural land – Tahasildar (See Sec.128 of Karnataka Land Revenue Act, 1964) Offices of Corporation, Municipality, Panchayat or City survey if such office exists.

Q 3 . Which are the documents requires to be compulsorily registered?
Ans . 1. Gift deed of immovable property.
2. Other non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
3. Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest;
4. Leases of immovable property from year or for any term exceeding one year, or reserving a yearly rent;
5. Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
6. The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A

Q 4 . How to effect partition of .property?
Ans. a. If all the parties have share (common right) in the property partition can be effected. If partition is effected through an instrument such instrument must be compulsorily registered.
b. Oral partition affected through memorandum submitted to the concerned authorities need not be registered.
c. Stamp duty has to be paid in respect any kind of partition whether it is to be compulsorily registered or not.
d. Parties to the partition may agree to effect partition of unequal shares.

Q 5. When there are two or more heirs, can one or two be made full owners by others taking money in lieu of their share?
Ans . a) Yes. Any of the co-owners can individually or collectively release his / their right in favour of one or more collectively as the case may be and make him / them full owner. This kind of release can be with or without payment of money. This document is called Release.
b) Release can be made not only in case of inherited property but also in case of joint purchase/acquisition.

Q 6. What is a will?
Ans. A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

Q 7 . Who can execute a will?
Ans . a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two witnesses is necessary.
d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
e) Beneficiary under a will should not sign as attesting witness.
In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

Q 8. Is it compulsory to register a will?
Ans . It is not compulsory to register. Executants may register at his option. It is better to register the will. If original is lost a certified copy can be obtained from Sub-Registrar Office.

Q 9 . Where can the will be registered?
Ans. It can be registered in any office of the Sub Registrar in India

Q 10 Is there any time limit to register a will?
Ans . There is no such time limit

Q 11. Can a will be cancelled?
Ans. The testator can cancel his will at anytime during his lifetime. Such cancellation deed requires a Stamp duty of Rs.100-00

Q 12 Can a registered will be rectified or changed?
Ans If executant of a will wishes to rectify, add to will may do so during his lifetime. This is called codicil. This document does not require stamp duty.

Q 13. Can a will be registered even after death of testator?
Ans. Yes, claiming party under the will have to produce will, records relating to the death of the testator, witness and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register.

Q 14. What is the Stamp duty and Registration fee to register a will?
Ans . There is no Stamp duty on will deed. For registration of will during the life time of the testator Rs.200-00 Registration fee prescribed. To register the will after the death of the testator Registration fee of Rs.200-00 and enquiry fee of Rs.250-00 is prescribed.

Q 15 . Is the certified copy of a registered will available to any body?
Ans . A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator.

Q 16 . How to keep contents of a will confidential?
Ans. Will can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed.

Q 17. What is the procedure to obtain the sealed cover containing a will after the death of the depositor?
Ans . On making an application along with proof of the death of the depositor, District Registrar will open sealed cover in the presence of the applicant and it will be registered. Certified copy will be issued if desired. A fee of Rs.100-00 prescribed to open a sealed cover.

Q 18 . What is the procedure for change of khata of the properties obtained through will?
Ans. After the death of the testator person claiming through the will have to apply to the concerned authorities as explained in question no.2 along with the copy of the will and death proof.
Q 19. What are the duties and liabilities of buyers and sellers while purchasing a property?
Ans. Following is the duties and liabilities of buyers and sellers
Before sale
liabilities of seller Liabilities of purchaser
To inform defects in the property
To provide records of right
To execute sale deed Payment of consideration
To pay of the liabilities on the property
Rights
Rights of seller Rights of buyer
To get rent and profits Right of encumbrance on consideration already paid
After completion of sale
Liabilities of seller Liabilities of purchaser
To hand over possession Liability on accidental or loss to the property
Information about right
To hand over records of rights after receipt of consideration Duty to pay taxes and liabilities after taking possession of property
Rights of seller Rights of buyer
If consideration is due encumbrance on property of such dues Incremental value/profit on property
Though there are rights and duties the purchaser should carefully examine the following matters;
1) Original documents.
2) How did the seller acquire the property.
3) Encumbrance Certificate of the property for a minimum period of 15 years from Sub Registry Office to know if there are any encumbrances on the property to be purchased.
4) Verify from the concerned court if there are any litigations on the property to be purchased.
5) Verify if there are any litigations, objections in revenue, municipal offices about inheritance or any other matter.
6) If seller is a power of attorney holder, it should be verified from the principal and if such power of attorney is genuine and whether it is still in force.
7) It should be verified whether the transaction is opposed to public policy under Section 22A of the Registration Act, 1908. If so the document will not be registered.
8) If the Property is a granted land to the member of scheduled caste and scheduled tribe, it should be verified if the transaction is in contravention of the terms and conditions of grant and whether permission of the Government is obtained for transfer.

Q 20 . What are the transactions opposed to public policy?
Ans Government has declared the following as opposed to public policy under Section 22A of Registration Act, 1908 namely,-

(1) (a) Agreement to sell, sale, gift, exchange, mortgage, lease or assignment of land of which the occupancy right has been granted under Chapter III of the Karnataka Land Reforms Act, 1961 in contravention of the restrictions imposed under section 61 of the said act and the rules framed there under.
(b) Agreement to sell, sale, gift, exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed there under.
(c) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed there under.
(d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable institution society, trust, company, association, other body of individuals or a co-operative Society other than the co-operative farming society in contravention of section 79-B of the Karnataka Land Reforms Act, 1961 subject to the exceptions and exemptions provided under section 109 of the said act and the rules framed there under.
(e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed there under as per the provisions of the said Rules.
(2) One cannot possess land as owner, tenant or as mortgagee with possession in excess of 10 units. If a family consists of more than five members, such family may hold two units per head not exceeding 20 units.
PART A
[See Section 2(A)(35-A)
Classification of Lands
A Class
Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
B Class
(i) Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing only one crop of paddy in a year.
(ii) Lands irrigated by such lift irrigation projects constructed and maintained by the State Government as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year.
C Class
(i) Lands irrigated from any Government sources of irrigation, including lift irrigation projects constructed and maintained by Government other than those coming under A Class and B Class.
(ii) Lands on which paddy crop can be raised or areca crop is grown with the help of rain water.
(iii) Lands irrigated by lifting water from a river or Government Canal or Government tank where the pumping installation or other device for lifting water is provided and maintained by the land owner.
Notes
(1) Lands having facilities for irrigation from a Government Source where the system of water supply is suitable for growing only light irrigated crop namely, crops other than paddy and sugarcane shall come under this class.
(2) Lands growing irrigated garden crop will come under classes ‘A’, ‘B’ or ‘C’ as the case may be depending upon the source of irrigation and the system of water supply.
D Class
Lands classified as dry but not having any irrigation facilities from a Government source.
Note.- Lands growing paddy or garden crops not coming under A Class, B Class or C Class shall belong to this class.
PART B
Formula of determining equivalent extent of different classes
One Acre of A Class land having soil classification value above 8 annas = 1.3 acres of A Class land having soil classification value below 8 annas = 1.5 acres of B Class land having soil classification value above 8 annas = 2.0 acres of B Class land having soil classification value below 8 annas = 2.5 acres of C class land having soil classification value above 8 annas = 3.0 acres of C class land having soil classification value below 8 annas = 5.4 acres of D Class land.

Q 21. Is it necessary to obtain permission for transfer of agricultural land granted under Land Grant Rules or granted occupancy right under Land Reforms Act even after lapse of condition for transfer?
Ans. Yes. Application should be submitted to Tahasildar and acknowledgement is obtained. If permission is not granted within 15 days after getting acknowledgement, document can be registered as if permission is granted.
Q 22 . What are other restrictions to purchase agricultural land?
Ans . Lands granted to persons belonging to scheduled caste or scheduled tribe cannot be transferred or purchased without prior permission of the Government. This restriction does not apply to mortgagee in favour of co-operative or scheduled banks and partition among family members
2. Social or Industrial organizations can purchase with the permission of the Government (Refer Sec.109 of Karnataka Land Revenue Act, 1964).
Q 23. How to get transfer of immovable property?
Ans . a. As explained under Question 3, if value of property under sale, exchange, lease, and mortgage is Rs.100 or more, deed relating to such transaction must be compulsorily registered (Sec.17 of Registration Act 1908).
b. Gift deed, must be registered irrespective of the value of the property.
c. After the deed is registered `J’ slip is sent to Tahasildar in case of agricultural land and city survey office, in case of city non-agricultural property of properties are under city survey. The purchaser should get confirmed whether khatha is transferred through `J’ slip.
In areas where there is not city survey is not in operation, one has to apply along with copy of the deed to the concerned Corporation/ Municipal/panchyat office to effect transfer of khatha.

Q 24 . What is the purpose of Registration?
Ans. (a) By Registration of transaction of immovable property will become permanent public record. This is a notice to the general public. Those getting transfer of property should verify whether such property has been previously encumbered.
(b) According to Transfer of Property Act right, title or interest can be acquired only if the deed is registered.

Q 25 . What are the effects of non-registration?
Ans . If a deed of transfer, which is compulsorily registrable, is not registered it will not be admissible in evidence (Sec.49 of Registration Act 1908)

Q 26. Is there time limit to present a document for registration after it is executed (signed)?
Ans . a. Document may be presented for registration within four months from the date of execution (signature).
b. If a document is executed out of India, the period of four months will be counted from the date of its receipt in India.
c. After four months document may be presented within another four months with penalty subject to maximum of ten times the registration fees if the District Registrar grants permission. But document may be presented before Sub Registrar within eight months. Thereafter it cannot be accepted for registration. (For details please see Rule 52 of Karnataka Registration Rules, 1965).

Q 27. What is the day today timing for acceptance of deeds for registration in Sub Registry offices?
Ans. Generally deeds are accepted during working hours. Sub Registrar may stop accepting two hours before closing time if he has sufficient work to attend in respect of deeds already received for registration.
Provided deeds may be accepted in emergency cases on payment of extra fee of Rs.200 one hour before sunrise and one hour after sunset and on holidays.

Q28. Can the document presented for registration be withdrawn?
Ans . Registering officer may permit withdrawal of the document before completion of registration on written request by the party who presented the document. Fifty percent of the registration fee is refundable. Likewise Stamp duty is also refundable subject to deductions. (Please see question No.19 on stamp duty F.A.Q.)

Q 29 . Who should be present at the time of registration?
Ans . A deed may be presented for registration either by claiming or executing party but the executant / executants must be present to admit execution (signing) of the deed (Please see Sec.32 of Registration Act 1908).

Q 30. What is the course, if executing party refuses to appear in Registry Office to admit execution?
Ans . a. In such circumstances, registering office will issue notice/ summons to the Executant. If the party does not turn up registering officer will refuse registration.
b. Application may be made to the District Registrar on such refusal to the District Registrar who will hold enquiry and decide the case. Rs.250 should be paid for such application.
c. One may submit appeal to the Civil Court if District Registrar also refuses to order for registration (For details please see Sec.73, 74, 75, 76 & 77 of Registration Act 1908).

Q 31. Who can sign as witness to a document?
Ans . Any person, above 18 years of age and not a party to the document may sign as witness.

Q 32. What is meant by Identifying witness of person presenting/executing a document?
Ans . In order to identify genuineness of the persons executing the document, signature of identifying witness are obtained. Without such witness, registering officer may refuse registration.

Q 33 . Who is authorise to write a deed?
Ans . Deed may be personally written by the executant or may be drafted by a licensed deed writer or advocate.

Q 34 . Is it necessary to register immovable property by Government as inam or granted on darkhast?
Ans . They are exempted from registration. Khatha is effected on the basis of orders of Government (see Sec.90 of Registration Act 1908).

Q 35. Are there any kind of documents registered without personal appearances of the parties for registration?
Ans . 1. Mortgage deed executed under Improvement Loans etc.
2. Certificate of sale issued by revenue court.
3. Documents executed by farmers in favour of primary co-operative land development bank to obtain loan and loan bonds executed by farmers in favour of banks under Karnataka Agricultural Credit Co-operations and Miscellaneous Provisions Act 1975 are sent under Sec.89 of the Registration Act and they are filed.

Q 36I.s it necessary to register deed relating to transfer or assignment of decree relating to immovable property?
Ans . If value of the property involved in decree is Rs.100 or more and creates, declares, transfer, limit or extinguish right it should be compulsorily registered (See Sec.17 (e) of Registration Act).

Q 37. Explain the registration of adoption deed?
Ans. Adoption deed maybe executed and registered like any other deed. Stamp duty Rs.45 and registration fee Rs.200 are leviable on it.

Q 38. Explain the Power of Attorney?
Ans . There are two kinds of Power of Attorney.
1. General Power of Attorney (GPA)
2. Special Power of Attorney (SPA)
a) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
b) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

Q 39. Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?
Ans . No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the sale deed registered. This principle applies to other kinds of transactions also.

Q 40. Who can execute Power of Attorney?
Ans . A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf. If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property. If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property. (see article 5(f) & 41(a), 41(ea), Schedule to Karnataka Stamp Act 1957).

Q 41. When would a General Power of Attorney gets cancelled?
Ans. a. GPA automatically gets cancelled on the death of Executant.
b. Principal (Executant) may cancel it any time.

Q 42 .What does Irrevocable Power of Attorney mean?
Ans. If the Power of attorney is executed for consideration in respect of property it cannot be unilaterally revoked, prejudicial to the interest of the agent (See Sec.202 of Indian Contract Act, 1872).

Q 43. What is the meaning of a Special Power of Attorney?
Ans . (a) Power of Attorney executed by a person in favour of another to act on his behalf for specific purpose is called Special Power of Attorney.
(b) If a person is unable to go over to registry office to present a document executed in his favour or to admit execution of document executed (signed) by him, such power of attorney shall be authenticated or attested by a Sub Registrar. Otherwise they are not acceptable for the purpose of registration.

Q 44 . Is it compulsory to register power of attorney attested in India by Magistrate or notary?
Ans . They need not be registered. But General Power of Attorney containing authority to present or admit execution of a document executed by the principle is not acceptable for such presentation or admission of execution unless they are attested or authenticated by a Sub Registrar.

Q 45 . Is it compulsory to register General Power of Attorney executed by persons residing out of India and attested by officers of Consulate office of India in that country?
Ans. It is not necessary to register. But Stamp duty as per Article 41 shall be paid within 3 months from the date of receipt of the power of attorney in India.

Q 46. Is it compulsory to get a Power of Attorney attested by a Sub Registrar

if it has already been attested by Magistrate or Notary, under which documents are signed by the agent?
Ans . Not necessary

Q 47. What is meant by Encumbrance Certificate?
Ans . Encumbrance Certificate is a record showing registered transactions pertaining to a property. If mortgage, sale or any other deeds in respect of a property are registered, encumbrance certificate is issued Form No.15.
Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate.

Q 48. What is meant by a Nil Encumbrance Certificate?
Ans . If no deeds of transactions are registered in respect of a property nil encumbrance certificate is issued in Form No.16. If Certificate is issued in this form, it means that there are no registered transactions / liabilities on the property for a given period of time unregistered transactions are not included in this certificate.
Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate.

Q 49 . What is the fee for Encumbrance Certificate?
Ans . a. Application fee Rs.5
b. Rs.30 for search of first year and Rs.10 for every subsequent year. Example: To obtain Encumbrance Certificate for 13 years. Application fee Rs.5-00 plus first year Rs.30-00 plus 12 years Rs.120-00 and total Rs.155-00.

Q 50 . How to obtain Certified Copy of registered document?
Ans . 1. Any person may obtain certified copy of registered document relating to immovable property.
2. Certified copy of registered will may be obtained only by the testator only during his lifetime. Any person may get copy of a will after the death of the testator on production of death certificate.
3. Copies of registered deed of GPA and other documents relating to movables may be obtained by executant / claimant or agent, representative of such person only.
Stamp paper of Rs.10 is required to be produced along with the application and copying fee of Rs.3 for every page of Xerox copy or Rs.5 for every 100 words or part thereof is to be paid.

7 April, 2011 02:41

Adoption – Of a male child without consent of wife – Adoption is not valid – Consent of wife cannot be presumed when she was present at the time of ceremonies of adoption as a mute spectator. 2011(1) Civil Court Cases 775 (S.C.)
Adverse possession – Person claiming adverse possession is required to establish (1) the date on which he came in possession; (2) nature of possession; (3) the factum of possession; (4) knowledge to the true owner; (5) duration of possession and (6) possession was open and undisturbed. 2011(1) Civil Court Cases 699 (S.C.)
Adverse possession – When a person in possession asserts to be owner, even if he fails to establish his tile, his possession would still be adverse to the true owner. 2011(1) Civil Court Cases 026 (S.C.)
Arbitrator – Can itself decide the issue as to existence of arbitration agreement when proceedings are initiated before a nominated arbitral Tribunal. 2011(1) Civil Court Cases 800 (S.C.)
Arbitrator – Existence of an arbitration agreement questioned – If answer is in the affirmative only then an Arbitrator can be appointed. 2011(1) Civil Court Cases 800 (S.C.)
Custom – Proof – Custom when repeatedly recognized by Courts, it blends into the law of land – Proof of same becomes unnecessary. 2011(1) Civil Court Cases 104 (S.C.)
Declaration – Necessary party – In absence of owner of the land, no such declaration can be granted. 2011(1) Civil Court Cases 141 (S.C.)
Dishonour of cheque – Exemption from person appearance – It is discretion of Court. (S.C.) 729
Dishonour of cheque – Exemption of personal appearance – It is discretion of Magistrate to dispense with the rigour of personal examination of the accused u/s 313 of the Code as well. 2011(1) Civil Court Cases 729 (S.C.)
Electricity – Revised bill – (1) Prior intimation of checking not given; (2) Responsible officer not present at the time of checking; (3) Check meter not installed; (4) Copy of checking report/chart not given to the appellant for filing objections; (5) show cause notice not given along with the demand notice – Revised bill is null and void. 2011(1) Civil Court Cases 001 (S.C.)
Encroachment of public street – Affected person filed suit – Suit is not governed by O.1.R.8 CPC. 2011(1) Civil Court Cases 693 (S.C.)
Encroachment of public street – Gives rise to continuous cause of action – S.22 of Limitation Act applies – Suit not barred by limitation. 2011(1) Civil Court Cases 693 (S.C.)
Hindu Law – No evidence that property was inherited or joint – Same has to be held to be self acquired property. 2011(1) Civil Court Cases 641 (S.C.)
Inherent power of Court – Every procedure is permitted to the Court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted. 2011(1) Civil Court Cases 717 (S.C.)
Lis pendens – Transfer is not void or illegal – Pendente lite purchaser is bound by the decision – In case title of transferor’s title is upheld than transferee is not affected and in case it is partly upheld then title of transferee is saved only to that extent and in case title of transferor is not upheld then transferee will not have any title to the property. 2011(1) Civil Court Cases 392 (S.C.)
Notice – Sent under postal certificate – No allegation that postal certificate was procured – Presumption is that notice was duly served. 2011(1) Civil Court Cases 650 (S.C.)
Presence of wife as a mute spectator at the time of ceremonies cannot presumed. 2011(1) Civil Court Cases 775 (S.C.)
Rent & Eviction – Tenant not vacating within six months despite his undertaking – Contempt notice issued – Tenant directed to be evicted from the premises in question forthwith by using police force. 2011(1) Civil Court Cases 326 (S.C.)
Specific performance – Ready and willing – Words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact – Distinction between the two is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance – Generally, readiness is backed by willingness. 2011(1) Civil Court Cases 846 (S.C.)
Withdrawal of withdrawal application to withdraw the suit is maintainable. 2011(1) Civil Court Cases 717 (S.C.)
Service – Disciplinary proceedings – Person appearing as a witness cannot be an inquiry officer. 2011(1) Apex Court Judgments 068 (S.C.)
Service – Misconduct – Assertion of employer that it was not practical to hold domestic enquiry to prove the misconduct of the workman – Held, assertion has to be proved by the employer and not by the workman. 2011(1) Apex Court Judgments 125 (S.C.)
Service – Misconduct – Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. 2011(1) Apex Court Judgments 068 (S.C.)
Cheating – Deception is a necessary ingredient for the offences of cheating – There must be no dishonest concealment of facts – Non disclosure of relevant information would also be treated as a mis-representation of facts leading to deception. 2011(1) Apex Court Judgments 248 (S.C.)
Cheating – Deception is a necessary ingredient for the offences of cheating – Deception by accused of the person deceived must be fraudulent or dishonest – Such deception must induce the person deceived to: either (a) deliver property to any person; or (b) consent that any person shall retain any property – Accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived – Such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. 2011(1) Apex Court Judgments 248 (S.C.)
Public document – Has to be tested by applying the same standard in civil as well as criminal proceedings. 2011(1) Apex Court Judgments 225 (S.C.)
Charge – Unless the parties satisfy the Court that there has been a failure of justice from non framing of charge under a particular provision and some prejudice has been caused to them, conviction under such provision of law is sustainable. 2011(1) Apex Court Judgments 356 (S.C.)
Consumer – Goods purchased for commercial purposes and/or service hired or availed for commercial purposes – Not a consumer within the meaning of the Act – Complaint not maintainable. 2011(1) Apex Court Judgments 206 (S.C.)

PUNJAB AND HARYANA HIGH COURT
Ad interim injunction – If suit itself is not maintainable then there is no question of grant of ad interim injunction. 2011(1) Civil Court Cases 323 (P&H)
Ad interim injunction – Similiciter suit for injunction filed by a purchaser from a co-owner against another co-owner is not maintainable – When suit itself is not maintainable then ad interim injunction cannot be granted. 2011(1) Civil Court Cases 323 (P&H)
Dishonour of cheque – Loan against hire purchase agreement – Hire purchase agreement and statement of account not produced on record – Acquittal upheld. 2011(1) Criminal Court Cases 082 (P&H)
Domestic violence – Complaint against a female is maintainable – It is not necessary for the female to personally appear as an accused in the complaint. 2011(1) Criminal Court Cases 379 (P&H)
Dying declaration – Doctor certificate of fitness – Not required after recording statement that deceased remained conscious throughout when immediately before recording statement doctor had given opinion as to fitness of patient. 2011(1) Criminal Court Cases 015 (P&H)
Illegal gratification – Accused acquitted – No independent witness to the demand – Trap witnesses most interested witnesses – Non treatment of currency notes with phenolphthalein powder – No occasion for demand – Raiding party not offered of their search before conducting search of accused – Shadow witness found to be a different person than so stated – Unbelievable that bribe seeker would come to a public place to accept the bribe when he could have very easily accepted it at his own house where none else except him and the complainant was present. 2011(1) Criminal Court Cases 320 (P&H)
DELHI HIGH COURT
Limitation – Complaint filed within time – Process issued after expiry of limitation – Limitation prescribed is for filing of complaint. 2011(1) Criminal Court Cases 028 (Delhi)
Medical negligence – Negligent or deliberate act of doctor – It is doctor who is liable and not the hospital. 2011(1) Criminal Court Cases 792 (Delhi)
Written statement – Amendment – Withdrawal of admission – It will certainly cause serious prejudice to the case of plaintiff – Such amendments are not allowed – Other proposed amendment not necessary for the purpose of determining the real question in controversy between the parties – Application dismissed. 2011(1) Civil Court Cases 538 (Delhi)
Secondary evidence – Agreement to sell and receipt – Alleged to be illegally retained by father of defendant and after his death passed on to defendant – Second evidence – Held, no logic behind the contention that when a purchaser pays money for purchase of property he would hand over the original receipt of money and documents of sale to seller instead of retaining the same – Since these documents should have been in possession of plaintiff and if plaintiff does not have possession, no presumption can be drawn that plaintiff had handed over these documents to father of defendants and he be permitted to prove orally the execution of such an agreement – Application for secondary evidence disallowed. 2011(1) Civil Court Cases 092 (Delhi)
Maintenance – A husband is supposed to maintain his un earning spouse out of the income which he earns – Maintenance under Domestic Violence Act can be fixed as per prevalent law regarding providing of maintenance – No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not – Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and equally capable of earning and both of them claimed to be gainfully employed before marriage. 2011(1) Civil Court Cases 209 (Delhi)
ALLAHABAD HIGH COURT
156(3) Cr.P.C. – Allegations of dowry death – Order as to police investigation, upheld. 2011(1) Criminal Court Cases 054 (Allahabad)
156(3) Cr.P.C. – Police report – On protest petition Magistrate rejected the final report and summoned the accused – Out of the four options available to Magistrate an accused can be summoned if there is sufficient material in the case diary. 2011(1) Criminal Court Cases 306 (Allahabad)
KERALA HIGH COURT
Bail – Violation of conditions imposed by Superior Court – Magistrate can cancel bail in case of violation of conditions. 2011(1) Criminal Court Cases 834 (Kerala)
Witness – Cannot be examined by appointing an Advocate Commission – A judicial Magistrate alone can be appointed for the examination of a party on commission. 2011(1) Criminal Court Cases 555 (Kerala)
Divorce – Mental cruelty – Husband not allowing wife to take up employment in an MNC as wife has to travel long distances every day – No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife – Held, it amounts to mental cruelty – Further held that nature of cruelty which would entitle a spouse in matrimony for divorce is identical in all religions – Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce. 2011(1) Civil Court Cases 511 (Kerala) (DB)
Domestic Violence – Respondent who is the opposite party not an accused as such he cannot be arrested and produced or ordered to be arrested and produced before the Magistrate. 2011(1) Civil Court Cases 688 (Kerala)
ANDHRA PRADESH HIGH COURT
Acknowledgment – Valid only when in writing – It is not so when it is way of an answer to an oral suggestion made to a witness in the trial of a case. 2011(1) Civil Court Cases 189 (A.P.)
MADRAS HIGH COURT
Sanction for prosecution – Validity – Once the trial has commenced petition seeking discharge on the ground that sanction is invalid is not maintainable – This matter is to be decided by the trial Court at the end of the trial. 2011(1) Criminal Court Cases 405 (Madras)
BOMBAY HIGH COURT
Bona fide purchaser – Mere verification of municipal record to ascertain title – Not sufficient. 2011(1) Civil Court Cases 123 (Bombay)
HIMACHAL PRADESH HIGH COURT
Custom – Proof – Custom can be proved by oral evidence or written or both – If oral evidence remains unrebutted and inspires confidence, it can be used and a finding can be recorded on the basis of it that custom is proved. 2011(1) Civil Court Cases 151 (H.P.)
FULL BENCH
Accused can only be permitted to remain present during the pre-cognizance stage but he cannot intervene or raise his defence, until order issuing summons is passed. 2011(1) Criminal Court Cases 820 (Allahabad) (FB)
Direction u/s 156(3) Cr.P.C. to police for investigation – Accused has no right of intervention as to the mode and manner of investigation and who should investigate. 2011(1) Criminal Court Cases 820 (Allahabad) (FB)
Dishonour of cheque – Magistrate can issue process on the basis of contents of complaint, documents in support thereof and affidavits in support of the complaint – However, Magistrate can call upon complainant to remain present in Court and examine him and/or his witnesses upon oath for taking decision to issue process against the accused. 2011(1) Criminal Court Cases 634 (Bombay) (FB)

7 April, 2011 02:41

Adoption – Of a male child without consent of wife – Adoption is not valid – Consent of wife cannot be presumed when she was present at the time of ceremonies of adoption as a mute spectator. 2011(1) Civil Court Cases 775 (S.C.)
Adverse possession – Person claiming adverse possession is required to establish (1) the date on which he came in possession; (2) nature of possession; (3) the factum of possession; (4) knowledge to the true owner; (5) duration of possession and (6) possession was open and undisturbed. 2011(1) Civil Court Cases 699 (S.C.)
Adverse possession – When a person in possession asserts to be owner, even if he fails to establish his tile, his possession would still be adverse to the true owner. 2011(1) Civil Court Cases 026 (S.C.)
Arbitrator – Can itself decide the issue as to existence of arbitration agreement when proceedings are initiated before a nominated arbitral Tribunal. 2011(1) Civil Court Cases 800 (S.C.)
Arbitrator – Existence of an arbitration agreement questioned – If answer is in the affirmative only then an Arbitrator can be appointed. 2011(1) Civil Court Cases 800 (S.C.)
Custom – Proof – Custom when repeatedly recognized by Courts, it blends into the law of land – Proof of same becomes unnecessary. 2011(1) Civil Court Cases 104 (S.C.)
Declaration – Necessary party – In absence of owner of the land, no such declaration can be granted. 2011(1) Civil Court Cases 141 (S.C.)
Dishonour of cheque – Exemption from person appearance – It is discretion of Court. (S.C.) 729
Dishonour of cheque – Exemption of personal appearance – It is discretion of Magistrate to dispense with the rigour of personal examination of the accused u/s 313 of the Code as well. 2011(1) Civil Court Cases 729 (S.C.)
Electricity – Revised bill – (1) Prior intimation of checking not given; (2) Responsible officer not present at the time of checking; (3) Check meter not installed; (4) Copy of checking report/chart not given to the appellant for filing objections; (5) show cause notice not given along with the demand notice – Revised bill is null and void. 2011(1) Civil Court Cases 001 (S.C.)
Encroachment of public street – Affected person filed suit – Suit is not governed by O.1.R.8 CPC. 2011(1) Civil Court Cases 693 (S.C.)
Encroachment of public street – Gives rise to continuous cause of action – S.22 of Limitation Act applies – Suit not barred by limitation. 2011(1) Civil Court Cases 693 (S.C.)
Hindu Law – No evidence that property was inherited or joint – Same has to be held to be self acquired property. 2011(1) Civil Court Cases 641 (S.C.)
Inherent power of Court – Every procedure is permitted to the Court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted. 2011(1) Civil Court Cases 717 (S.C.)
Lis pendens – Transfer is not void or illegal – Pendente lite purchaser is bound by the decision – In case title of transferor’s title is upheld than transferee is not affected and in case it is partly upheld then title of transferee is saved only to that extent and in case title of transferor is not upheld then transferee will not have any title to the property. 2011(1) Civil Court Cases 392 (S.C.)
Notice – Sent under postal certificate – No allegation that postal certificate was procured – Presumption is that notice was duly served. 2011(1) Civil Court Cases 650 (S.C.)
Presence of wife as a mute spectator at the time of ceremonies cannot presumed. 2011(1) Civil Court Cases 775 (S.C.)
Rent & Eviction – Tenant not vacating within six months despite his undertaking – Contempt notice issued – Tenant directed to be evicted from the premises in question forthwith by using police force. 2011(1) Civil Court Cases 326 (S.C.)
Specific performance – Ready and willing – Words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact – Distinction between the two is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance – Generally, readiness is backed by willingness. 2011(1) Civil Court Cases 846 (S.C.)
Withdrawal of withdrawal application to withdraw the suit is maintainable. 2011(1) Civil Court Cases 717 (S.C.)
Service – Disciplinary proceedings – Person appearing as a witness cannot be an inquiry officer. 2011(1) Apex Court Judgments 068 (S.C.)
Service – Misconduct – Assertion of employer that it was not practical to hold domestic enquiry to prove the misconduct of the workman – Held, assertion has to be proved by the employer and not by the workman. 2011(1) Apex Court Judgments 125 (S.C.)
Service – Misconduct – Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. 2011(1) Apex Court Judgments 068 (S.C.)
Cheating – Deception is a necessary ingredient for the offences of cheating – There must be no dishonest concealment of facts – Non disclosure of relevant information would also be treated as a mis-representation of facts leading to deception. 2011(1) Apex Court Judgments 248 (S.C.)
Cheating – Deception is a necessary ingredient for the offences of cheating – Deception by accused of the person deceived must be fraudulent or dishonest – Such deception must induce the person deceived to: either (a) deliver property to any person; or (b) consent that any person shall retain any property – Accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived – Such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. 2011(1) Apex Court Judgments 248 (S.C.)
Public document – Has to be tested by applying the same standard in civil as well as criminal proceedings. 2011(1) Apex Court Judgments 225 (S.C.)
Charge – Unless the parties satisfy the Court that there has been a failure of justice from non framing of charge under a particular provision and some prejudice has been caused to them, conviction under such provision of law is sustainable. 2011(1) Apex Court Judgments 356 (S.C.)
Consumer – Goods purchased for commercial purposes and/or service hired or availed for commercial purposes – Not a consumer within the meaning of the Act – Complaint not maintainable. 2011(1) Apex Court Judgments 206 (S.C.)

PUNJAB AND HARYANA HIGH COURT
Ad interim injunction – If suit itself is not maintainable then there is no question of grant of ad interim injunction. 2011(1) Civil Court Cases 323 (P&H)
Ad interim injunction – Similiciter suit for injunction filed by a purchaser from a co-owner against another co-owner is not maintainable – When suit itself is not maintainable then ad interim injunction cannot be granted. 2011(1) Civil Court Cases 323 (P&H)
Dishonour of cheque – Loan against hire purchase agreement – Hire purchase agreement and statement of account not produced on record – Acquittal upheld. 2011(1) Criminal Court Cases 082 (P&H)
Domestic violence – Complaint against a female is maintainable – It is not necessary for the female to personally appear as an accused in the complaint. 2011(1) Criminal Court Cases 379 (P&H)
Dying declaration – Doctor certificate of fitness – Not required after recording statement that deceased remained conscious throughout when immediately before recording statement doctor had given opinion as to fitness of patient. 2011(1) Criminal Court Cases 015 (P&H)
Illegal gratification – Accused acquitted – No independent witness to the demand – Trap witnesses most interested witnesses – Non treatment of currency notes with phenolphthalein powder – No occasion for demand – Raiding party not offered of their search before conducting search of accused – Shadow witness found to be a different person than so stated – Unbelievable that bribe seeker would come to a public place to accept the bribe when he could have very easily accepted it at his own house where none else except him and the complainant was present. 2011(1) Criminal Court Cases 320 (P&H)
DELHI HIGH COURT
Limitation – Complaint filed within time – Process issued after expiry of limitation – Limitation prescribed is for filing of complaint. 2011(1) Criminal Court Cases 028 (Delhi)
Medical negligence – Negligent or deliberate act of doctor – It is doctor who is liable and not the hospital. 2011(1) Criminal Court Cases 792 (Delhi)
Written statement – Amendment – Withdrawal of admission – It will certainly cause serious prejudice to the case of plaintiff – Such amendments are not allowed – Other proposed amendment not necessary for the purpose of determining the real question in controversy between the parties – Application dismissed. 2011(1) Civil Court Cases 538 (Delhi)
Secondary evidence – Agreement to sell and receipt – Alleged to be illegally retained by father of defendant and after his death passed on to defendant – Second evidence – Held, no logic behind the contention that when a purchaser pays money for purchase of property he would hand over the original receipt of money and documents of sale to seller instead of retaining the same – Since these documents should have been in possession of plaintiff and if plaintiff does not have possession, no presumption can be drawn that plaintiff had handed over these documents to father of defendants and he be permitted to prove orally the execution of such an agreement – Application for secondary evidence disallowed. 2011(1) Civil Court Cases 092 (Delhi)
Maintenance – A husband is supposed to maintain his un earning spouse out of the income which he earns – Maintenance under Domestic Violence Act can be fixed as per prevalent law regarding providing of maintenance – No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not – Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and equally capable of earning and both of them claimed to be gainfully employed before marriage. 2011(1) Civil Court Cases 209 (Delhi)
ALLAHABAD HIGH COURT
156(3) Cr.P.C. – Allegations of dowry death – Order as to police investigation, upheld. 2011(1) Criminal Court Cases 054 (Allahabad)
156(3) Cr.P.C. – Police report – On protest petition Magistrate rejected the final report and summoned the accused – Out of the four options available to Magistrate an accused can be summoned if there is sufficient material in the case diary. 2011(1) Criminal Court Cases 306 (Allahabad)
KERALA HIGH COURT
Bail – Violation of conditions imposed by Superior Court – Magistrate can cancel bail in case of violation of conditions. 2011(1) Criminal Court Cases 834 (Kerala)
Witness – Cannot be examined by appointing an Advocate Commission – A judicial Magistrate alone can be appointed for the examination of a party on commission. 2011(1) Criminal Court Cases 555 (Kerala)
Divorce – Mental cruelty – Husband not allowing wife to take up employment in an MNC as wife has to travel long distances every day – No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife – Held, it amounts to mental cruelty – Further held that nature of cruelty which would entitle a spouse in matrimony for divorce is identical in all religions – Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce. 2011(1) Civil Court Cases 511 (Kerala) (DB)
Domestic Violence – Respondent who is the opposite party not an accused as such he cannot be arrested and produced or ordered to be arrested and produced before the Magistrate. 2011(1) Civil Court Cases 688 (Kerala)
ANDHRA PRADESH HIGH COURT
Acknowledgment – Valid only when in writing – It is not so when it is way of an answer to an oral suggestion made to a witness in the trial of a case. 2011(1) Civil Court Cases 189 (A.P.)
MADRAS HIGH COURT
Sanction for prosecution – Validity – Once the trial has commenced petition seeking discharge on the ground that sanction is invalid is not maintainable – This matter is to be decided by the trial Court at the end of the trial. 2011(1) Criminal Court Cases 405 (Madras)
BOMBAY HIGH COURT
Bona fide purchaser – Mere verification of municipal record to ascertain title – Not sufficient. 2011(1) Civil Court Cases 123 (Bombay)
HIMACHAL PRADESH HIGH COURT
Custom – Proof – Custom can be proved by oral evidence or written or both – If oral evidence remains unrebutted and inspires confidence, it can be used and a finding can be recorded on the basis of it that custom is proved. 2011(1) Civil Court Cases 151 (H.P.)
FULL BENCH
Accused can only be permitted to remain present during the pre-cognizance stage but he cannot intervene or raise his defence, until order issuing summons is passed. 2011(1) Criminal Court Cases 820 (Allahabad) (FB)
Direction u/s 156(3) Cr.P.C. to police for investigation – Accused has no right of intervention as to the mode and manner of investigation and who should investigate. 2011(1) Criminal Court Cases 820 (Allahabad) (FB)
Dishonour of cheque – Magistrate can issue process on the basis of contents of complaint, documents in support thereof and affidavits in support of the complaint – However, Magistrate can call upon complainant to remain present in Court and examine him and/or his witnesses upon oath for taking decision to issue process against the accused. 2011(1) Criminal Court Cases 634 (Bombay) (FB)

21 March, 2011 07:20

Abduction and rape – Non raising of alarm at a public place – Does not lead to conclusion that she willingly accompanied accused when fire arm was wielded and she was threatened. 2011(1) Criminal Court Cases 770 (S.C.)

Absence of intention to cheat and/or defraud – An action in criminal Court does not lie. 2011(1) Criminal Court Cases 893 (S.C.)

Adoption – Of a male child without consent of wife – Adoption is not valid – Consent of wife cannot be presumed when she was present at the time of ceremonies of adoption as a mute spectator. 2011(1) Civil Court Cases 775 (S.C.)

Adverse possession – Person claiming adverse possession is required to establish (1) the date on which he came in possession; (2) nature of possession; (3) the factum of possession; (4) knowledge to the true owner; (5) duration of possession and (6) possession was open and undisturbed. 2011(1) Civil Court Cases 699 (S.C.)

Arbitrator – Can itself decide the issue as to existence of arbitration agreement when proceedings are initiated before a nominated arbitral Tribunal. 2011(1) Civil Court Cases 800 (S.C.)

Arbitrator – Existence of an arbitration agreement questioned – If answer is in the affirmative only then an Arbitrator can be appointed. 2011(1) Civil Court Cases 800 (S.C.)

Court while exercising power u/s 482 or exercising revisional jurisdiction u/s 397 Cr.P.C. can look into uncontroverted documents, placed on record by accused, which on the face of it are beyond suspicion or doubt. 2011(1) Criminal Court Cases 740 (S.C.)

Dishonour of cheque – Exemption from person appearance – It is discretion of Court to exempt an accused from personal appearance. 2011(1) Criminal Court Cases 697 (S.C.)

Dishonour of cheque – Exemption of personal appearance – It is discretion of Magistrate to dispense with the rigour of personal examination of the accused u/s 313 of the Code as well. 2011(1) Civil Court Cases 729 (S.C.)

Dishonour of cheque – Personal examination of accused u/s 313 Cr.P.C. can be dispensed with whose personal appearance has been dispensed with. 2011(1) Criminal Court Cases 697 (S.C.)

Dowry death – If a demand for property or valuable security, directly or indirectly, has a nexus with marriage, such demand constitutes ‘demand for dowry’ – Cause or reason for such demand is immaterial. 2011(1) Criminal Court Cases 652 (S.C.)

Dying declaration – No mention of pouring kerosene oil in dying declaration while so told to PW1 – No reason to doubt the statement made by deceased in dying declaration and recorded by a Magistrate even when there is no mention of pouring kerosene oil. 2011(1) Criminal Court Cases 657 (S.C.)

Encroachment of public street – Affected person filed suit – Suit is not governed by O.1.R.8 CPC. 2011(1) Civil Court Cases 693 (S.C.)

Encroachment of public street – Gives rise to continuous cause of action – S.22 of Limitation Act applies – Suit not barred by limitation. 2011(1) Civil Court Cases 693 (S.C.)

Hindu Law – No evidence that property was inherited or joint – Same has to be held to be self acquired property. 2011(1) Civil Court Cases 641 (S.C.)

Inherent power of Court – Every procedure is permitted to the Court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted. 2011(1) Civil Court Cases 717 (S.C.)

Jurisdiction – A case cannot be transferred when filed in a Court having no jurisdiction at all to hear it. 2011(1) Apex Court Judgments 424 (S.C.)

Notice – Sent under postal certificate – No allegation that postal certificate was procured – Presumption is that notice was duly served. 2011(1) Civil Court Cases 650 (S.C.)

Presence of wife as a mute spectator at the time of ceremonies cannot presumed. 2011(1) Civil Court Cases 775 (S.C.)

Rape – A woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault as ours is a conservative society. 2011(1) Criminal Court Cases 770 (S.C.)

Rape – No rule much less an absolute one that two years have to be added to the age determined by a doctor. 2011(1) Criminal Court Cases 770 (S.C.)

Rape – Not necessary that in all cases there should be injuries on external or internal part of victim. 2011(1) Criminal Court Cases 770 (S.C.)

Specific performance – Ready and willing – Words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact – Distinction between the two is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance – Generally, readiness is backed by willingness. 2011(1) Civil Court Cases 846 (S.C.)

Suicide not on account of demand for dowry but due to harassment caused by husband – Offence u/s 304-B IPC is not made out. 2011(1) Criminal Court Cases 770 (S.C.)

Withdrawal of withdrawal application to withdraw the suit is maintainable. 2011(1) Civil Court Cases 717 (S.C.)

20 January, 2011 05:55

Divorce – Mental cruelty – Husband not allowing wife to take up employment in an MNC as wife has to travel long distances every day – No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife – Held, it amounts to mental cruelty – Further held that nature of cruelty which would entitle a spouse in matrimony for divorce is identical in all religions – Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce. (Kerala) DB. (To be reported very shortly).

Dishonour of cheque – Issue of process – Magistrate can issue process on the basis of contents of complaint, documents in support thereof and affidavits in support of the complaint – However, Magistrate can call upon complainant to remain present in Court and examine him and/or his witnesses upon oath for taking decision to issue process against the accused.(To be reported very shortly)

Maintenance – Domestic Violence – Both husband and wife educated and both unemployed – Both on equal footing – One cannot be asked to maintain other unless one is employed and other is not employed. 2011(1) Civil Court Cases 209 (Delhi)

Execution – Objections u/s 47 CPC – There is no limitation prescribed for filing objections u/s 47 CPC. 2011(1) Apex Court Judgments 006 (S.C.)

Service – Misconduct – Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. 2011(1) Apex Court Judgments 068 (S.C.)

Ex parte decree – Setting aside – Report of ‘refusal’ on summons – Publication in newspaper – Newspaper not having wide circulation – Service not sufficient – No benefit from report of `refusal’ when trial Court ordered service through publication – Exparte decree set aside. 2011(1) Civil Court Cases 044 (P&H)

Important Decisions – 2010
(Published in Civil Court Cases, Criminal Court Cases & Apex Court Judgments)

19 January, 2011 13:14

Father of govt. staff not eligible for medical care meant for staff’s family

CHENNAI: Father of a married government employee is not covered by the term family’ and hence not eligible to get his medical expenses reimbursed by the government, the Madras high court has said.

Justice K Chandru, dismissing the writ petition of N Ilavarasu, relied on a Supreme Court ruling that the provision of facilities cannot be unlimited.

Ilavarasu moved the court seeking a direction to the government to reimburse the medical expenses incurred when his father underwent a surgery for removal of a tumour.

The government rejected his application in May 2000. Assailing the rejection, Ilavarasu said the fundamental right to equality would be denied if the expenses of father alone are not reimbursed. Even a married son is bound to protect his dependant parents, he said.

The government, however, cited a March 1993 rule saying family’ for the purpose of this scheme will not cover the father. It said it cannot afford to spend the health fund on all categories of persons. In case of a married government servant, the scheme provides protection only for wife and children and once the term family’ is defined, the petitioner cannot expand the definition to include his father, it said.

Though Ilavarasu’s father’s ailment is covered under the scheme and the hospital, where he underwent surgery, is also covered, unless and until his father is covered by the definition of the term family’, he cannot seek to expand the scope of the scheme, the government said.

Justice Chandru, citing the apex court judgment that no state of any country could have unlimited resources to spend on any of its projects, said the state government was well within its powers to pass such an order. "It cannot be said that the stand of the state was either arbitrary or violative of fundamental right to equality. The classification made by the state is well within its powers. Hence, there is no case made out," he said and dismissed the writ petition.