The Power of Minor’s Guardian

Sec.12 of the Hindu Minority and Guardianship Act 1956

Sec.12 Guardian Not to be appointed for minor’s undivided interest in Joint Family Property:-

“Where a minor has a 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 interest.(Provided that nothing in this section shall be deemed to effect the jurisdiction of a High Court (the Chartered HCs* only) to appoint a guardian in respect of such interest.)

(Chartered HCs* - Govindappa v. Dodda Thayappa AIR 1968 Mys 178)

P. Govindappa and others v. Doddathayappa and others, AIR 1968 Mys. 178

These cases which are referred by Narayana Pai J. to a Bench of two Judges, pose the question whether this Court has the power to appoint a guardian for a minor in respect of his undivided interest in Hindu joint family property in the area of the former State of Mysore, which, is under the management of an adult member of the family.  Section 12 of the Hindu Minority and Guardianship Act, 1956 (Central Act 32 of 1956) forbids such appointment save in the exercise of jurisdiction to which the proviso to is refers. 

Kalagate, J.

(19) The reference to the jurisdiction exercised in England, as pointed out by Sir John Beaumont C. J. in re: Ratanji Ramaji AIR 1941 Bom 397 was "to show that the jurisdiction which was intended to confer on the Supreme Court, was jurisdiction to exercise powers of the Crown as parensapatriao, those powers being exercised in England at first by the Lord Chancellor, afterwards by the Court of Chancery, and at the present time, by the Judges of the Chancery Division, "Clause 37 thus conferred similar powers on the Supreme Court, and if that is so, the chartered High Courts at Calcutta, Madras and Bombay inherited these powers which were being exercised by the Supreme Court, by virtue of the Letters patent or Charter of the years 1862 and 1865, and the power possessed by those chartered high Courts was being exercised apart from the Guardians and Wards Act of 1890, in appointing guardians of the minors' undivided interest in a joint Hindu family property. (Vide AIR 1941 Bom 397, AIR 1949 Mad 260, ILR 50 Cal 141 = (AIR 192 Cal 409), ILR 59 Cal 570=(AIR 1932 Cal 502) and AIR 1928 All 709).Although the High Court of Allahabad states that it had jurisdiction by virtue of clause 12 of the Letters patent in respect of the person and property of minors, it refused to exercise that jurisdiction in that particular case on the ground of inexpediency and want of precedent. It is this power which was possessed by the chartered High Courts that has been saved by section 3 of the Act of 1890.

(21) Thus it is clear from a survey of the relevant clauses in the Letters Patent and the decisions that the chartered High Courts possessed the power and authority with respect to the persons and estates of infants, and in exercise of that power and authority, the High Courts in Calcutta, Madras and Bombay were appointing a guardian of the undivided interest of a minor in a joint Hindu family property, and it is that power which is saved by Section 3 of the Act of 1890.

**

Natural Justice

Natural Justice

It is a fundamental requirement of our system of law that all Tribunals or Authorities vested with the power to adjudicate upon the rights of parties affecting their rights to life or property, shall comply with the Rules of Natural Justice. This basic requirement is not an empty formality. Violation of the Rules of Natural Justice renders the decision void even where the law provides for an, appeal.

In Ridge v. Baldwin, (1964) AC 40 the House of Lords held that a decision given without regard to the principles of Natural Justice is void.

In General Medical Council v. Spackman, (1943) AC 627 Lord Wright said:

"If the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision."

(Natural Law is another name for common-sense justice.)

(In the absence of any other law, the Principles of Natural Justice are followed.)

Can a single coparcener maintain HUF?

Can a single coparcener maintain HUF?

The Judicial Committee in Attorney General of Ceylon v. AR. Arunachalam Chettiar is important. [1957] A.C.540.

One Arunachalam-Nattukottai Chettiar and his son constituted a joint family governed by the Mitakshara school of Hindu law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu Undivided Family to which a number of female members belonged. Arunachalam died in 1938 shortly after the Estate Ordinance No. 1 of 1938 came into operation in Ceylon.

By sec.73 of the Ordinance it was provided that property passing on the death of a member of the Hindu Undivided Family was exempt from payment of estate duty.

On a claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu Undivided Family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Arunachalam's death by adoptions made by the widows of the family and since the undivided Hindu family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu Undivided Family.

The Judicial Committee observed at page 543 of the Report "...........though it may be correct to speak of him as the owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family  (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property.

Once again their Lordships quote from the judgment of Gratiaen, J. (Gowali Buddanna's case 60 I.T.R. 293):-

"To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener". To this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners".

The basis of the decision was that the property which was the joint family property of the Hindu Undivided Family did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property, viz., that it was the joint property of a Hindu Undivided Family, remained the same.

The same principle was applied by this Court in Gowali Buddanna's case. In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Budanna, were members of a Hindu Undivided Family. Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. It was held by this Court that since the property which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu Undivided Family.

At page 302 Shah, J. referred to the decision of the Judicial Committee in Arunachalam's ([1957] A.C. 540) case and concluded as follows:-

"Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu Undivided Family. On the death of Budappa, the family which included a widow and females, born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family".

**

Section 151 CPC

Section 151 CPC

The Calcutta High Court reported in Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670, Lord Williams J. considered the scope of Section 151, and held thus –

“The Code is not exhaustive; there are cases which are not provided for in it, and the High Court must not file its hands and allow injustice to be done. The law cannot make express provisions against all inconveniences, and the Code has, therefore, in many cases where the circumstances warrant it, and the necessities of the case require it, to act upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice and the administration of which alone it exists.”

The Full Bench of the Madras High Court in Century Flour Mills Ltd v. S.Suppiah and another, 1975 (1)MLJ 54, held that ‘the inherent powers of the High Court under Sec.151 of the CPC are wide and are not subject to any limitation.’

Judgment obtained by fraud on court:

The Supreme Court in Indian Bank v. Satyam Fibers (India) Pvt Ltd., 1996 (5) SCC 550 held that –

“The judiciary in India also possess inherent power, specially under Section 151 CPC to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business.

Where the Court is misled by a  party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its orders.

Justa Falsa

Justa Falsa

An Amendment may be allowed at any stage of the proceedings even after trial but not after judgment, except on appeal, evidently refers to a material and substantial amendment of pleading.

The correction of an error need not always amount to an amendment of a pleading.

The Supreme Court in Samarendra v. Krishna Kumar, AIR 1967 SC 1440 held that –

“It is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.”

Bowen L. J., in Mellor v. Swire, 1885 (3)0 Ch.D.289, said that “Every Court has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry out its intention and express the meaning of the court when the order was made.”

It is true that under Order 20, Rule 3 of CPC once a judgment is signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under Section 152 of CPC.  The rule does not also affect the court’s inherent power under Sec.151. Under Sec.152 clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties.  It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the court.

The Supreme Court in Chinna Marudachalam and another v. Chinnaia Gounder, 1997 (1) LW 465, held that the act of the Court should not prejudice any party and Courts have the duty to see that their records are true and represent the correct state of affairs. In orders to prevent the prejudice, Court can always exercise inherent powers.

The Madras High Court in V.R.Srinivass Raghavan and others v. Kannammala by power agent NC Raja Gopal and others, 1980 TLNJ 50, Justice Sathiadev also held that there is no time limit for correcting clerical or arithmetical mistake under Ss.151 and 152, CPC.

Delay in lodging FIR in rape cases

Delay in lodging FIR in rape cases:

Supreme Court in The State of Punjab v. Gurmit Singh & others, 1996 (1) Crime SC 37 held --

“The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix of her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.”

“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.”

In State of Maharastra v. Chandraprakash Kewalchand Jain, Ahmadi J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words:-

“A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in case of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness.

What is necessary is that the court must alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her.

If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which required it to look for corroboration.

If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trust worth. If the totality and not circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”

Legitimacy of a child

Legitimacy of a child:

Section 112 of the Indian Evidence Act:

“112. Birth during marriage, conclusive proof of legitimacy: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

As per Sec.112, the person alleging illegitimacy must conclusively establish that he had no opportunity to have intercourse with the wife at the time when according to the natural course of nature, the child must have been begotten.

It requires positive proof of negative fact.

The presumption contemplated by Sec.112 is a conclusive presumption of law.

If it is proved that there was a valid marriage between a man and woman and during the valid marriage, the child was born, the conclusive presumption of legitimacy arises.

The only thing that can displace it is the proof of the particular fact mentioned in it i.e. non-access between the parties to the marriage at a time when the child could have been begotten.

No person could be compelled to give a sample of blood grouping testing against his wish and no adverse inference could be drawn against him for his refusal.

It is a rebuttal presumption of law that a child born during the lawful wedlock is legitimate and that access occurred between the parents.

This presumption can only be displayed by a strong preponderance of evidence and not by a mere balance of convenience, arrived at by some unreliable blood tests.

Ref: Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295

Ref: Polavarapu Venkateswarly, minor by Guardian mother Manumamma v. Polavarapu Subbayya

The Supreme Court in Goutam Kunda v. State of West Bengal, AIR 1993 SC 2295, has observed as follows:

“There is a presumption and a very strong one though a rebuttable one.”

“Conclusive proof means as laid down under Sec.4 of the Evidence Act.”

From the above, it emerges:

(1)    That courts in India cannot order blood test as a matter of course;

(2)    Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained

(3)    There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Sec.112 of the Evidence Act.

(4)    The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5)    No one can be compelled to give sample of blood for analysis.