23. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority.
25. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
28. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
29. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
Relevant paragraphs: Early law of gifts: – The early law of gifts is stated by Sanskrit writers somewhat curiously under the title “Resumption of gifts”, one of the eighteen titles of law. Narada says, “An anvahita deposit, yachita, a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even. What is left (of the property) after the expense of maintaining the family has been defrayed, may be given. But by giving away anything besides, a householder will incur censure”. According to Brihaspati, “Self- acquired property may be given away at pleasure by its owner”. In other countries, gifts try to clothe themselves with the semblance of a sale. Under Hindu Law, sales claimed protection by assuming the appearance of a gift. The Mitakshara says: “Since donation is praised, if sale must be made, it should be conducted, for the transfer of immovable property, in the form of a gift, delivering with it gold and water (to ratify the donation). Narada mentions sixteen kinds of invalid gifts which embrace a variety of circumstances such as want of capacity of the donor, either permanent or temporary, absence of real intention to make a gift, influence of fear, fraud, misrepresentation, or mistake, many of which would invalidate a gift in modern law.
It would be relevant to observe where property is absolutely at the disposal of its owner, he may give it away as freely as he may sell or mortgage it, subject to a certain extent to the claims of those who are entitled to be maintained by him. A Hindu whether governed by the Mitakshara or the Dayabhaga, can dispose of his separate or self-acquired property. So too, a woman can make a gift of her stridhana. A coparcener in a joint family governed by the Mitakshara law cannot make a gift of his coparcenary interest even in State where he can alienate it for value, except after a division in status. Where the property is not absolutely at the disposal of a person, a transaction can only be supported on the ground of necessity and as a general rule, a gift of it could never be valid. Exceptions, however, are recognized by Hindu law where gifts can be made either for pious, religious or charitable purposes or on occassions, when, according to the common notions of Hindu, gifts are usually made. This exceptional power can only be exercised properly and within reasonable limits.
The modern law of gifts consists in part of case law and in part of the provisions of Chapters II and VII of the Transfer of Property Act, 1882. Even in the areas where the provisions of the Transfer of Property Act are not applicable, its principles apart from the technical rules are applied as rules of justice and equity.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary is void. It is not necessary to refer to all the decisions. Instead, I may refer to the following statement of law in Mayne’s Hindu Law, sixteenth edition., para 406: It is now equally well settled in all the states that a gift or devise by a coparcener in a Mithakshara family of his undivided interest is wholly invalid… A coparcener cannot make a gift of his undivided interest in the family property, movable, either to a stranger or to a relative except for purposes warranted by special texts.…According toMithakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make agift of his undivided interest with the consent of other coparceners.
An individual member of the Joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
I am of the opinion that the law is thus well settled that the manager has not absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words “pious purposes” in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family out of love and affection by the manager of the family is void.
Constitutionalism 168. The principle of constitutionalism has been deployed by the petitioners to justify the alteration of aforesaid standards. The ideal of constitutionalism finds place in almost every constitutional discourse involving the state and the citizen and we need to reflect upon this ideal in the context in which it appears. “Constitutionalism”, as an expression of political theory, holds the distinction of receiving diverse meanings and unlike most other concepts, the meanings are fundamentally distinct and inexplicable beyond the specific context in which they are used. The need for understanding this principle in its correct terminology gets multiplied in a country with a written Constitution. What, then, is the role of the principle of constitutionalism for a Court of law performing functions under the umbrella of a written Constitution?
169. A peculiar feature of the usage of this expression in constitutional matters is that one side tries to project it as an independent substantive rule, as opposed to it being a mere force behind the rule, and the other side brushes it down as a redundant theoretical concept. We must note that the true import of constitutionalism cannot be understood by treating it as a standalone concept of judicial application. Jurists across the world have given different meanings to this word. Whereas some have associated it with fundamental concepts of Rule of Law and judicial review as envisaged in the Constitution, others have considered it as a radical idea for transforming the Constitution over and above its true import. For some, judicial supremacy over functioning of executive and legislature is considered as essential to constitutionalism. For others, like Prof. Barendt275, the ideal of separation of powers is the essence of constitutionalism. Building upon the subjectivity of this concept, Jo Eric Khushal Murkens, in “The Quest for Constitutionalism in UK Public Law Discourse” notes that the substantive content of any constitutional discourse is not likely to change due to this principle thus:
“… Every scholar above is able to convey her message (the substantive concept of the rule of law, the legitimacy of government action, and the core institutional values) without requiring recourse to constitutionalism. In other words, if constitutionalism were eliminated from constitutional discourses, their substantive content would remain unchanged.”
170.Constitutionalism, therefore, is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance and it cannot be deployed to present an alternative model of governance. We must state that it would not only be absurd but also fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration. For, to do so would be to drag a duly elected Government on the edges as it would be under a constant fear of being adjudged wrong on the basis of undefined principles which appeal to “three gentlemen or five gentlemen sitting as a Court”. And what will suffer is public interest in the form of public exchequer including sovereignty of the nation.
171. In this regard, we must recall the enunciation of this Court in Keshavan Madhava Menon277, wherein it is observed that an argument on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiments and emotion; but a Court of law has to gather the spirit of the Constitution from the language of the Constitution. For, one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.
172. To conclude, the principle of constitutionalism is a work in progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself. It may only be deployed to evolve minimum standards of procedures prescribed by law. It is not to undermine or supplant the elaborate statutory regulatory schemes.
Compiled by S. Basavaraj, Advocate, Dakshsa Legal.
Relevant Paragraphs 41. It is well settled that, if any person claims adverse possession against another person in respect of the property in question, unless the ownership of that person is admitted, filing of suit for declaration and permanent injunction specifically pleading that his father was the owner by virtue of the oral Gift Deed and after his death, the plaintiffs continued to be peaceful possession and enjoyment of the property without admitting the title of the defendant in respect of the property in question, the plaintiffs cannot claim adverse possession. There should be necessary animus on the part of the person, who intends to perfect his title by adverse possession where a person, who under the bonafide belief thought that property belongs to him and as such, had been in possession of the same, such possession cannot at all be adverse possession as it lack necessary animus of perfecting title by adverse possession. Under the law of Adverse Possession, without admitted title of the defendant, plaintiff is not permitted to raise the question of adverse possession.
54. It is well settled that the doctrine of Lis Pendency applies only where lis is pending before the Court. Further, in the pending suit, the transferee is not entitled, as a 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. Though this Court has permitted the proposed applicant to come on record only as a representative in the interest of appellant No.1 as per the decree of the trial Court granting permanent injunction, he cannot claim beyond the rights confirmed by the trial Court.
63. The Hon’ble Supreme Court while considering the provisions of Sections 3 and 27 of the Limitation Act in the case of Prem Singh and Others –vs- Birbal and Others reported in AIR 2006 SC 3608 held that the limitation is a statute of repose. It ordinarily bars a remedy, but does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Compiled by S. Basavaraj, Advocate, Daksha Legal. Bangalore.
The recent judgment of the Supreme Court in Vineeta Sharma vs Rakesh Sharma decided on 11 August, 2020, has cleared many confusions and doubts. Importantly, many pending disputes have been resolved in the Mega Lok-Adalat conducted by the Karnataka State Legal Services Authority on the basis of this judgment. This article which is in continuation of my earlier Article published on http://www.livelaw.in on 23 October 2019, titled “Amended Section 6 of Hindu Succession Act Cauldron of confusions”, – web link to the publication – https://www.livelaw.in/columns/amended-section-6-of-hindu-succession-act-cauldron-of-confusions-149178 makes an effort to analyse the legal position starting from the State Amendments to Vineet Sharma judgment. The article focuses on Mitakshara School of Hindu Law.
Shastric and customary law, varying from region to region, governed Hindus prior to 1956. Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely a right of maintenance/sustenance but had no right of inheritance to property. Common male ancestor was the basis. The family properties were held as a coparcenary. Male members of the family had right to the property by virtue of birth. Their interest in the coparcenary property would keep varying depending upon the death or a birth of a male in the joint Hindu Family. The property of a male coparcener on his death used to pass by survivorship in the Mitakshara School of Hindu Law. No female was a member of the coparcenary though, she was a member of the joint Hindu family. The coparcenary would normally consist up to four degrees i.e. the common ancestor (coparcener), his son, grandson and great grandson.
The Constitution of India which came into force on 26 January 1950 removed discrimination against women and made equal treatment of women a part of the fundamental rights (Articles 14, 15(2) & (3) and 16). To achieve this objective, the Parliament enacted the Hindu Succession Act, 1956. However, the discrimination against women continued even under this Act since the Act did not provide any rights to the daughters in the coparcenary property. The only right of the daughter would be to get a notional share in the father’s share in the coparcenary property that too after his death.
Section 6 retained substantially the Rule of survivorship. However, the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve by succession. (The proviso is interpreted by the Supreme Court in Uttam v. Saubhag Singh, (2016) 4 SCC 68)
State Amendments: The State Legislatures of Andra Pradesh, Karnataka, Kerala Maharashtra, and Tamil Nadu amended the Hindu Succession Act, 1956 in 1990 to bring gender equality. The Karnataka Amendment provided that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son (Section 6A). However, the section is inapplicable to a daughter married prior to or to a partition which had been effected before the Amendment Act.
The Law Commission in its 174th report of May 2000 called for gender reforms taking note of the steps taken by Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka.
The resultant position was Act 39 of 2005 which came into force on 9 September, 2005 conferring the status of coparcener on the daughter by birth and share in the ancestral property. Married daughter were also included. However, the amendment excluded disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004, the date of introduction of the Bill in Rajya Sabha.
Effect of State amendments. One of the State amendments (Karnataka) came into force with effect from 30 July 1994. The Division Bench of the Karnataka High Court in Padmavathi and another vs Jayamma and others, Regular First Appeal 916/2014 decided on 15 May 2020 held that the State amendment holds the field from 30:7:1994 to 9:9:2005. The applicability of the Karnataka Amendment during this period is subject to limitations provided in the amendment itself. Learned single judge of the Karnataka High Court has in H.P. Chikkarama Reddy and another vs Kanthamma and others. Civil Revision Petition 431/2014 decided on 14 September 2020, held that even when the ancestral property was partitioned and sold prior to 2005 amendment, a suit for partition by daughter is maintainable under the 1994 Karnataka amendment. (The effect of Vineet Sharma judgment is discussed in the later paragraphs)
Immediately after the Central amendment, the question regarding prospective or retrospective operation of the amendment cropped up before few high courts. One set of argument was that in the absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. If a coparcener had died prior to the commencement of the Amendment Act, succession opens on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystallised even if partition by metes and bounds does not take place and that the amendment cannot re-open the partition. The counter argument was that the amendment being piece of social legislation to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.
The division bench of the Karnataka High Court in Pushpalatha N.V. v. V. Padma, ILR 2010 Kar 1484 took the view that the amendment is retrospective in its operation. The court held that the status of a coparcener is conferred on the daughter on and from the date of the commencement of the Amendment Act and the right is given to her by birth. However the Court said, to be eligible under the amended section, she must have born after 17:6:1956, the day on which the Act came into force. Therefore, the court said by substituted Section 6, the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law has been conferred the status of a coparcener by birth and conferred same rights in the coparcener properties as she would have had if she had been a son. Simply put, the Karnataka High Court held that a woman is conferred with coparcener status by birth provided she was born after the Hindu Succession Act 1956 came into force. The Court also held that the woman would get a right in ancestral property “on her own” whether her father is alive in 2005 or not.
The interpretation of the amendment came up for consideration before full bench of the Bombay High Court in Badrinarayan Shankar Bhandari and others vs Omprakash Shankar Bhandari decided on 14 August 2014. The Bombay High Court framed, inter alia, the following questions for consideration.
“(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation? (b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17:6:1956? (c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17:6:1956 and prior to 9.9.2005? (d) Whether Section 6 of the Hindu Succession Act,1956 as amended by the Amendment Act,2005 applies only to daughters born after 9:9:2005?
On question (a), the full bench held that, bearing in mind the words ‘on and from commencement of the Hindu Succession Act, 2005’ found in Section 6, the rights under the amended Section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act 2005. The Court held that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. The court didn’t make distinction between the daughter born before 1956 or after 1956. The only requirement, the court held, is that when the Act is being sought to be applied, the person concerned must be in existence/ living.
While the Karnataka High Court held that by substitution the amended provision is there in the principal Act from 1956 itself and that the daughter born after 1956 is conferred coparcener status “retrospectively” by birth, the Bombay High Court held that the daughter is conferred coparcener status only with effect from 9 September 2005. However, by construing the amended section “retroactive” in operation, the Bombay High Court held that the Amendment Act applies to daughters born even before 1956 provided daughter is alive on the date of coming into force of the Amendment Act.
On questions (b), (c) and (d), the Bombay High Court held that the amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter, provided they are alive on 9 September 2005 that is, on the date when the Amendment Act of 2005 came into force and that undisputedly the amended Section 6 applies to daughters born on or after 9:9:2005.
On the interpretation of the proviso to section 6(1) (saving partitions of property which had taken place before the 20th December, 2004), Both Karnataka and Bombay High Courts relied on Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 that a preliminary decree determines the rights and interests of the parties and that the suit for partition is not disposed of by passing of the preliminary decree and that it is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds.
Another division bench of the Karnataka High Court in Phulvati vs Prakash (AIR 2011 Kar 78) followed the judgment in Pushpalatha N.V. v. V. Padma, ILR 2010 KAR 1484. This judgment was challenged before the Supreme Court. The Supreme Court rendered its judgment in Prakash v. Phulavati (2016) 2 SCC 36 on 30 November 2015.
The Hon’ble Supreme Court in Prakash v. Phulavati (2016) 2 SCC 36 held that that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. The Court noticed absence of an express provision for giving retrospective effect to the amended provision. The Court held that the rights under the amendment are applicable to “living daughters of living coparceners as on 9:9:2005” irrespective of when such daughters are born. It also held that disposition or alienation including partitions which may have taken place before 20:12:2004 as per law applicable prior to the said date will remain unaffected.
The confusion. (i.e. till 2019). The subsequent judgment of the Supreme Court in Danamma v. Amar, (2018) 3 SCC 343 created confusion for, it granted share in ancestral property to a daughter under the amendment even though the father died in the year 2001. As a matter of fact, in the first paragraph itself the Supreme Court takes note of the fact that father Gurulingappa Savadi died in the year 2001 leaving the daughters. However, the Supreme Court granted share to daughters even in the ancestral properties. At the same time, the Supreme Court relies on Prakash v. Phulavati in paragraphs 21 and 23 with approval.
Danamma vs Amar resulted in insinuations as though the earlier decision in Prakash v. Phulavati was impliedly overruled. Several suits were instituted on behalf of daughters claiming right in ancestral properties though the father died much before 2005. Few suits were even decreed.
The judgment in Danamma v. Amar was later clarified in Mangammal v. T.B. Raju, (2018) 15 SCC 662. The Supreme Court in Mangammal declared that Prakash vs Phulvati would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, the Supreme Court reiterated that only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
The declaration of law in Prakash vs Phulvati, the confusion created by Danamma v. Amar and the later clarification in Mangammal v. T.B. Raju was taken note of by the Delhi High Court while delivering judgment in RFA 301/2017. The High Court granted certificate of fitness to appeal.
The Supreme Court referred the issue to a larger bench in Vineeta Sharma vs Rakesh Sharma (2019) 6 SCC 164. It may be noted that all the three judgments aforesaid were rendered by the bench of two judges.
The three judges bench of the Hon’ble Supreme Court delivered the judgment in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 on 11 August 2020 holding that;
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
(iv) The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
(vi) In view of the aforesaid discussion and answer, the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju are overruled. The opinion expressed in Danamma v. Amar is partly overruled to the extent it is contrary to this decision.
Effect of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 (i) Daughter of a coparcner, who is alive in 2005, can claim partition of coparcneray property whether her father is alive in 2005 or not. (ii) Such claim is subject to conditions found in amended Section 6 as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
(iii) Though the amendment says that only registered partitions are recognised (to non-suit daughter), in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. To this extent, the Supreme Court has read down provisions of the amended section. (iv) Since the amendment creates a vested right, the children of female coparcener can sue for partition if the daughter dies after 2005. (my interpretation)
Effect of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 on State amendments: The Karnataka State amendment held the field from 30:7:1994 to 9:9:2005 (Padmavathi and another vs Jayamma and others, Karnataka High Court (supra). This view was taken relying on Prakash vs Phulvathi which gave prospective effect to amendment so far as a daughter whose father demised prior to 2005. In view of Vineet Sharma, the amendment holds the field retrospectively provided the daughter is alive in 2005.
However, the State amendments assume significance if the State amendment had created a vested right in favour of daughters. This is explained as hereunder. Suppose a daughter was unmarried in 1994 when the State amendment came into force and she gets married in 1997. The coparcenary properties were not partitioned or alienated. She gets a right to sue for partition under the State amendment. However, she dies in 2003 leaving behind her, a son. Under the Central amendment no share could be allotted to her son since the right accrued only in 2005. However, if the State amendment conferred vested right in her, her son can sue for partition even after 2005 amendment relying on the State amendment.
There is a clear indication in the State amendment that the right conferred on a daughter is a vested right which can be enforced even after her death.
Few questions:
Whether female coparcener who acquires ancestral property under the amended Section 6 takes it absolutely or whether her children also acquire a share in such property by survivorship and sue her for partition of such property?
Whether the coparcenary system continues even in female coparcener family.?
On questions 1 and 2, there are indications to contend both ways i.e the female getting the property absolutely and also that her children getting share in such property by birth and sue her for partition of such property. The following extracts from the amendment support the view that the property acquired by the female under the amended Section 6 is available for partition in the hands of her children by survivorship
(a) the daughter of a coparcener shall, by birth “become a coparcener in her own right in the same manner as the son” (b) have the same rights in the coparcenary property as she would have had “if she had been a son” (c) be subject to the “same liabilities” in respect of the said coparcenary property “as that of a son” (d) any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her “with the incidents of coparcenary ownership”These words clearly indicate continuance of coparcenary system even female’s family.
One can invoke Section 14 of the Act to confer absolute right on the female in the ancestral properties acquired in a family partition as above said. However, the words “notwithstanding anything contained in this Act, or any other law for the time being in force”, may oust applicability of Section 14. The words “as property capable of being disposed of her by testamentary disposition” refers only to her share.
A categorical declaration in this regard is needed. Several suits are already being filed by the children of female coparcener seeking partition. Few courts have dismissed such suits invoking Section 14. The issue has not reached any High Court so far.
Relevant paragraphs: 22. After thorough perusal of the records, certain doubts arose in the mind of this Court, more particularly, in the light of the fact that the last session of treatment undergone by the under trial/accused, was immediately prior to the commencement of the trial. On perusal of the ordersheet, it reflected that the trial commenced shortly after the accused returned from treatment at National Institute of Mental Health and Neuro Sciences, Bengaluru. As a doubt arose with regard to the fact as to whether the trial had been fairly conducted, we requested the presence of the counsel who had been appointed by the District Legal Services Authority to represent the accused before the trial.
30. Pursuant to our interaction with the Prison Officials and their Doctor and upon the direction of this Court as afore-extracted, the medical opinion in the case of the accused was placed before the Court along with certain enclosures pertaining to the treatment of the accused at NIMHANS during the period of trial.
31. On interaction of the doctor, it was made known to the Court that patients suffering from a chronic depression if not maintained on medication on a daily basis, there is all likelihood of a relapse of the medical condition leading to or bordering on insanity.
32. At this juncture, we are constrained to note the failing on the part of the trial Court. It appears that the trial Court has blindly proceeded on the information dated 25.03.2015 without even endeavouring or even attempting to satisfy itself as to whether the accused was `legally fit’ to stand trial. It was incumbent upon the trial Court to satisfy itself that the accused was capable of comprehending the various stages of trial, more particularly, the evidence that was put against him and as to whether he had understood the same and further as to whether he has accordingly instructed his counsel to defend his rights. The trial Court has miserably failed in complying with this requirement. It is sad to note that the trial Court has acted in a mechanical manner without even being alive to the consequence that would follow in the absence of an effective defence. The right to defence is not an illusory right and the duty cast on the Court to ensure fair trial is not optional but mandatory. The conduct of the trial, to state the least, shocks our judicial conscious. Even a simple attempt by the trial Court to cross check with the defence counsel would have been suffice to alert the Court to the circumstances surrounding the trial.
33. …The various stages of a trial are nothing but a pursuit in the search of the truth. In this direction, we are of the firm opinion that the trial Court has miserably failed. The trial Court being well aware of the mental condition of the accused immediately prior to the commencement of the trial, it was incumbent on the trial Court to ascertain as to whether the accused was capable or incapable of making his defence.
49. In terms of the law extracted by the Hon’ble Supreme Court in the aforesaid case, it becomes unmistakably clear that the accused who stands trial must have a sound and mental condition capable of comprehending the material being put against him, failing which the trial against an accused who is suffering from mental infirmity becomes vitiated. In terms of the law declared by the Hon’ble Supreme Court and the opinion of the medical experts, with regard to the mental conditions of the accused, which are extracted herein above, the trial against the accused will have to be held to be vitiated on the ground of mental instability of the accused during trial and a retrial is to be ordered.
Held: 18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.
19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.
Held: 18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.
19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.
S. Basavaraj, Member, Karnataka State Bar Council.
The recent challenge before the Supreme Court in Writ Petition 1479/2020 questions the Notification of the Andra Pradesh Public Service Commission dated 3:12:2020. The Notification invites applications for appointment of Civil Judges Junior Division in the AP State Judicial Service for Advocates having a minimum eligibility requirement of 3 years as practicing advocate.
The Supreme Court in All India Judges Association and others vs Union of India and others , Writ Petition (Civil) 1022/1989 decided on 21 March 2002,Justice B.N. Kirpal, Justice G.B. Pattanaik and Justice V.N. Khare, relied on the report of Justice K.Jagannatha Shetty and observed as follows:
“In the All India Judges’s case [1993] 4 SCC 288 at p. 314; this Court has observed that in order to enter the Judicial Service, an applicant must be an Advocate of at least three year’s standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the Judicial Service. A bright young law graduate after 3 year of practice finds the Judicial Service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an Advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned Amicus Curiae that it should be no longer mandatory for an applicant desirous of entering the Judicial Service to be an Advocate of at least three years’ standing we accordingly, in the light of experience gained after the judgment in All India Judges’ cases direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in even three years of practice, to be eligible to compete and enter the Judicial Service. We, however, recommend that a fresh recruit into the Judicial Service should be imparted with training of not less than one years, preferably two years. The Shetty Commission has recommended Assured Career Progessive Scheme and Functional Scales. We have accepted the said recommendation and a suggestion was mooted to the effect that in order that a Judicial Officer does not feel that he is stagnated there should be a change in the nomenclature with the change of the pay scale.” (PDF copy of the judgment is below.
The Bar Council of India has issued a press release dated 2 January 2021 stating that it is filing an application for impleadment as party in Writ Petition 1479/2020 and to plead in favour of the urgency and requirement to have a minimum 3 year experience at the Bar as a requirement to be eligible to sit in the Judicial Service Exam.
The BCI has expressed deep concern over Judicial Officers not having practical experience at the Bar being incapable and inept in handling matters. BCI says that most of such officers are found impolite and impractical in their behaviour with the Members of the Bar and litigants. ‘They have lack of understanding of the aspirations and expectations of Advocates and litigants in the matter of proper and decent behavior’, the BCI letter says.
Many experienced lawyers practicing in the trial court concur with the views of the BCI. ‘There is immediate need for making minimum practice as lawyer as a qualification to be a judge’, they say.
Since the judgment in All India Judges Association case was delivered by three Hon’ble Judges of the Supreme Court, it is necessary that a larger bench is constituted to consider its validity.
Daksha Legal 