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.

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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.

REPUGNANCY between Central Law and State Law

REPUGNANCY between Central Law and State Law:

“It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the pro-visions of clause (2), the State law would be void to the extent of the repugnancy.

This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act.

In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures.

First, regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I.

Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above.

Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so.

It is, therefore, obvious that in such matters repugnancy may result from the following circumstances:

1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.

(The Supreme Court in M.Karunanidhi -vs- Union of India reported in AIR 1979 SC 898)

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Conversion to another religion

The Caste Disabilities Removal Act, 1850 (Act 21 of 1850) had not been repealed so far. 

This Act contains only one Section, which is as follows:

"Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced ; So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court."

Section 26 of the Hindu Succession Act held that the bar for inheritance is only in respect of legal heirs of the convert. The individual, who convert himself to other religion from Hinduism, will not forego the right of any inheritance.

Section 26 of the Act, prohibits the children, of the convert from inheriting the property of any of their Hindu relatives.

E. Ramesh And Anr. vs P. Rajini And 2 Ors., (2002) 1 MLJ 216 (Madras High Court’s Division Bench judgment)

Disproportionate Punishment

Quantum of punishment disproportionate to offence:

The question of choice and quantum of punishment is within the jurisdiction of the disciplinary body; but the sentence has to suit the offence and offender;

It should not be vindictive or unduly harsh. 

It should not be so disproportionate the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

"The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the disciplinary body, if the decision of that body even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction."

Irrationality and perversity are recognized grounds of judicial review. All powers have legal limits.

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454

Coram non judice

Coram non judice

It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons, acting fairly and without bias and in good faith. 

A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non judice". 

Ref: Vitarelli v. Seaton, 359 U.S. 535

Ref: Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413.

Dismissal is shockingly disproportionate to the gravity of the charges:

Dismissal is shockingly disproportionate to the gravity of the charges:

 Whether the punishment of dismissal is shockingly disproportionate to the gravity of the charges. The principles relating to judicial review of punishment imposed, as a part of the decision making process by Court Martial, have been explained, in Ranjit Thakur vs. Union of India – 1987 (4) SCC 611, where the Hon'ble Supreme Court interfered with the punishment imposed by a court martial on the ground that it was strikingly disproportionate to the gravity of offence on the following reasoning: 

“Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". 

The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. 

It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. 

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.”

Judicial Review in Court martial proceedings:

Judicial Review in Court martial proceedings:

The principles relating to judicial review in regard to court martial proceedings are well settled. Unless the court martial has acted without jurisdiction, or exceeded its jurisdiction or had acted perversely or arbitrarily, the proceedings and decision of the court martial will not be interfered in exercise of power of judicial review. 

In Union of India vs. Major A. Hussain – 1998 (1) SCC 537, the Hon’ble Supreme Court held:

“Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the CrPC where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment.”

Illegal detention and Compensation

Illegal detention and Compensation: 

In Rudul Sah Vs. State of Bihar & Anr. (1983) 4 SCC 141, Y.V. Chandrachud, CJ, speaking for a Bench of three learned Judges of this Court had observed thus: 

“One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt.”

In Bhim Singh, MLA Vs. State of J & K & Ors. (1985) 4 SCC 677, holding illegal detention in police custody of the petitioner Bhim Singh to be violative of his rights under Articles 21 and 22(2) of the Constitution, the Hon’ble Supreme Court, in exercise of its power to award compensation under Article 32, directed the State to pay monetary compensation to the petitioner. Relying on Rudal Sah (supra), O. Chinnappa Reddy, J. echoed the following views:

“When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation”.

In Nilabati Behera (Smt) Alias Lalita Behera Vs. State of Orissa & Ors. (1993) 2 SCC 746, clearing the doubt and indicating the precise nature of the constitutional remedy under Articles 32 and 226 of the Constitution to award compensation for contravention of fundamental rights, which had arisen because of the observation that “the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial” in Rudul Sah ((1983) 4 SCC 141), J.S. Verma, J. (as His Lordship then was) stated as under:

“It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.” 

Inherent Powers of High Court:

Inherent Powers of High Court:

Section 482 CrPC. Saving of inherent power of High Court – “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

Section 482 of the Cr.P.C., however, states that nothing in the Cr.P.C. shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under the Cr.P.C. or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Thus, the provisions of the Cr.P.C. do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Court or to prevent the abuse of any process of the Court or otherwise to secure the ends of justice.

It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a “State” to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413] opined as under: (SCC p. 415, para 7);

In the recent case of State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 2 SCC 571] a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under Article 226 of the Constitution, has cautioned that the extra-ordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 of the Cr.P.C. to direct investigation by the CBI for securing the ends of justice.

Further investigation and Re-investigation Difference:

Further investigation and Re-investigation Difference:

After the charge sheet is filed, the Court has powers under sub-section (8) of Section 173 of the Cr.P.C. to direct further investigation by the police, but the Court has no power to direct a fresh investigation or reinvestigation into the case by the police. 

The High Court, therefore, could not have directed the CBI to start a fresh investigation or reinvestigation of the case after the police had filed charge sheet under sub-section (2) of Section 173 of the Cr.P.C. 

In support of this submission, the cited decision of the Supreme Court is Mithabhai Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332] and in which the Hon’ble Supreme Court made a distinction between further investigation and reinvestigation and held that under subsection (8) of Section 173 of the Cr.P.C., the Court can grant permission for further investigation and not for reinvestigation.

At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.”

A distinction, therefore, exists between a reinvestigation and further investigation.”

Joint Family doctrine

Joint-family doctrine:

The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. 7 Bom. 467 and Mayne's 'Hindu Law and Usage,' 6th edition, paragraph 270 and the possession of property by such corporate body. 

The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz., the undivided state--it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family. Persons, who by birth or adoption are not members of a Hindu family, cannot, in the absence of a custom having the force of law, by more agreement, become or be made members of a joint family.

According to the above conception of a family, there may, of course, be one or more families all with one common ancestor, and each of the branches of that family, with a separate common ancestor.

As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body.

--(Sudarsanam Maistri Vs. Narasimhulu Maistei and anr.  (1902)ILR25Mad149)   

son has a right by birth

Arunachala Mudaliar vs. Muruganatha Mudaliar, 

AIR 1953 SC 495:

"According to Mitakshara, the son has a right by birth in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal right with his father, while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same."

The principle is that the son gets a right by birth in the father's property, whether it is ancestral or self-acquired. However while the son's right actually to dispose of the share is unobstructed when the father's properly is ancestral, it is obstructed when it is self-acquired by the father's full rights of disposal. 

But this distinction does not affect the factum of the son's getting a right at the very moment of his birth in all the property owned by the father. Once this is understood, succession, even to the father's self-acquired property, is by survivorship, properly called, and not by inheritance, Confusion is sometimes created by the loose use of the word "inheritance' as also by some passages cited out of context from old Privy Council judgments, and also in some of the translations of the old texts, where the word 'pitriam' is translated without clear reference to whether it is 'pitriam' in respect of the son who may succeed, or in respect of the father who owns the property, In the one case, it would mean all the property of the father, while in the other only that property which is ancestral in the father's hand. Be that as it may, the pronouncement of the Supreme Court makes the principle underlying the Oudh ruling quite untenable. Actually, even in Oudh the 1930 ruling is no more sound law. 

The later decision of the Allahabad High Court in Mt. Ram Dei v. Mt. Gyarsi, AIR 1949 All 545 clearly lays down: 'The self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family properly.' 20 The same problem has been discussed at some length in Girdharilal v. Fatehchand, (S) AIR 1955 Madh B 148:

"It is settled that a son has a right by birth in the father's self-acquired property. It follows as a necessary consequence that the property is unobstructed heritage devolving by survivorship and that if the self-acquired properly has been not disposed of by the father during his lifetime on his death, the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons."

Inconsistent Pleadings

The Code of Civil Procedure does not prohibit inconsistent pleadings, and that there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative. 

A plaintiff may rely upon several different rights alternatively, although they may be inconsistent; so a defendant may raise, by his statement of defence, without leave, as many distinct and separate, and therefore inconsistent, defences as he may think proper. 

This is fully established by the decision of the Full Bench in Narendra v. Abhay Charan (1907) 34 Cal. 51 and illustrations of the application of this doctrine to inconsistent claims by the plaintiff may be found in Mati Lal v. Judisthir (1915) 22 C.L.J. 254 and Official Assignee v. Bidyasundar (1919) 30 C.L.J. 428 and to conflicting defences by the defendant may be gathered from Purnendu v. Dwijendra (1908) 8 C.L.J. 289 and Bank Behari v. Rachialal (1912) 15 C.L.J. 439. 

(Reported in AIR 1924 Cal 467 - Bhuban Mohini Dasi And Ors. vs Kumud Bala Dasi And Ors.)

Coparcener Gift

A coparcener cannot pick and choose one of several coparceners so as to make a gift of his undivided interest. 

The law is now well-settled by a Full Bench of this court in Chella Subbanna v. Chella Baiasubbareddi, ILR (1945) Mad 610: (AIR 1945 Mad 142) In that case, it was ruled that a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances, he can relinquish his interest, but the relinquishment operates for the benefit of all the other members. 

(Ponnuchami Servai vs. Balasubramanian, AIR 1982 Madras 281)

Land, Soil, Sub-soil

Land meaning:

 Meaning of ‘land’ and cognate terms.

Prima facie ‘land’ or ‘lands’ includes everything on or under the surface, although this meaning has in some cases been held to have been restricted by the context. ‘Soil’ is apt to denote the surface and everything above and below it, but similarly its meaning may be restricted by the context so as to exclude the mines. ‘Subsoil’ includes everything from the surface to the centre of the earth…….

(Halsbury’s Laws of England)  

Boundary must prevail as against measurements:

Boundary must prevail as against measurements:

"In Subbayya Chakkilian v. Maniam Muthiah Gounden, 46 M.L.J. 182 : 19 L.W. 245 : A.I.R. 1924 Mad. 493, a Bench of the Madras Court held that ordinarily when a piece of land is sold with definite boundaries, unless it is clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must Prevail as against the measurements."

Lord Coke’s view: --- “on revocable and irrevocable”

Lord Coke’s view: --- “on revocable and irrevocable”

Lord Coke said "if I make my testament and last will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable."

This statement of law was relied upon by the Division Bench of Calcutta High Court in Sagar Chandra Mandal v. Digamber Mandal and others (1909) 9 CLJ 644;

"As to the true character of the instrument propounded by the appellant we think there can be no reasonable doubt that it is a will. A will is defined in section 3 of the Indian Succession Act as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Section 49 then provides that a will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose of his property by will. If therefore an instrument is on the face of it of a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's Case. "If I make my testament and last will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable." The principal test to be applied is, whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it is really of this latter nature, it is ambulatory and revocable during his life. [Musterman v. Maberley, and in Bonis v. Morgan]. Indeed, the Court has sometimes admitted evidence, when the language of the paper is insufficient, with a view to ascertain whether it was the intention of the testator that the disposition should be dependent on his death. [Robertson v. Smith].

minor property & Court permisssion

For minor’s property, Court permission is necessary:

Section 8 of the Hindu Minority and Guardianship Act, 1956, deals with the powers of natural guardian of a Hindu minor and this section mandates that the natural guardian has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate, etc.

Section 8:

Powers of natural guardian:

(1)   The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2)   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;

(3)   Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him;

(4)   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.

Sale transaction by a natural guardian even if beneficial for the minor is voidable and not void ab initio, if it is done without the previous permission of the court. Held that the minor can challenge only after attaining majority and not during his minority;

Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

Dhansekaran v. Manoranjthammal, AIR 1992 Mad 214

Minor's share in a joint family property

Minor share in Joint family:

As per Section 8 of the Hindu Minority and Guardianship Act, 1956, no previous permission of Court is required to be obtained before disposing of an immovable property wherein the minor's interest/share is involved in respect of a joint Hindu family property. The Hon'ble Supreme Court Sri Narayan Bal and others V. Sridhar Sutar and others in AIR 1996 Supreme Court 2371;

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. 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. Thus 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.

The Hon’ble Madras High Court’s Division Bench decision in “K.Logambal and 3 others V. V.V.Sakunthala and 6 others in 1997 (II) CTC 602 at pages 604 and 605”

mother as natural guardian

Mother as a natural guardian:

As per the Hindu Minority and Guardianship Act -- 'natural guardian' means any of the guardians mentioned in Section 6."

Section 6:

“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;

In the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean after the lifetime of father. In the context in which it appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’ therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word ‘after’ if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

Doctrine of lis pendens

Lis pendens

It’s a Latin term;

It means ‘suit pending.’ 

Lis means = litigation;

Pendens means = pending;

In common law practice, the doctrine of ‘lis pendens’ is construed as a constructive notice to the public that some litigation is pending in a court of law in respect of that property.

Lis pendens is a constructive notice that shows that there is a cloud in the title of the property until the same is resolved in that suit.

Lis pendens does not invalidate any transfer of the property.

It is always the duty of the purchaser to make proper enquiry regarding any lis pendens in the property, before the purchase.

Section 52 of the Transfer of Property Act has clearly prohibited the transfer of property which is subject matter of a pending suit. The purchase can only be done with the permission of the Court. If no such permission has been obtained, then this transfer in favour of the purchaser is certainly hit by the doctrine of lis pendens as provided under Section 52 of the Act.  An alienee pendente lite is bound­ by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under O 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral.

In order to constitute a lis pendens, the following elements must be present:

1)      There must be a suit or proceeding pending in a Court of competent jurisdiction.

2)      The suit or proceeding must not be collusive.

3)      The litigation must be one in which right to immovable property is directly and specifically in question.

4)      There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5)      Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.

Precept Order

Precept (pronounce as “pre-sept”)

Precept means ‘a legal direction by one court to another court.”

A Precept Order is normally issued by one court, while executing a decree, to another court of other area to attach the property of the judgment debtor situate in that area.

In other words, if a property to be attached is situate in the area of another court’s territorial jurisdiction, then the court which passed the decree can issue a precept order to that court to attach that property of the judgment debtor, till the decree is transferred to that court.

Every court has its jurisdiction within the limits of its territorial area and not beyond that. Therefore the court which passed the decree shall have power to issue such Precept order to another court to attach the property of the judgment debtor property which situate within its territorial jurisdiction.

Therefore, a Precept order is a request of one court to another court to do some legal act.

Sec.46 CPC “Precepts”

(1) Upon the application of the decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to whom a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.